Sparks v Ham - [2002] WADC 14

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SPARKS -v- HAM & ORS [2002] WADC 14

CORAM: MULLER DCJ

HEARD: 1-2, 5-9 MARCH 2001, 29-31 OCTOBER 2001, 1-2, 5-7 NOVEMBER 2001

DELIVERED : 1 FEBRUARY 2002

FILE NO/S: CIV 6175 of 1994

BETWEEN: RODNEY JAMES SPARKS
Plaintiff
AND
ALEX VAN DEN HAM
First Defendant
VANCOR ENTERPRISES PTY LTD
Second Defendant
QUALITY BAKERS AUSTRALIA T/AS BUTTERCUP BAKERIES
Third Defendant

Catchwords:

Negligence - Liability of independent contractor for injury to another independent contractor - Injury suffered while contractor engaged on premises of third defendant - Failure by independent contractor to follow accepted safety procedure - Whether third defendant negligent as occupier of premises - Injury resulting in independent contractor having to engage substitute labour to do maintenance and service work - Method of assessment of damages for past and future economic loss

Legislation:

Nil

Result:

Judgment for the plaintiff against the first and second defendants for $568,815.57
Plaintiff's claim against third defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr R G Walton and Mr K H M Wong
First Defendant             :     Ms P E Cahill, J Morris and S M Denman
Second Defendant         :     Ms P E Cahill, J Morris and S M Denman
Third Defendant           :     Mr D R Clyne and M G I Macnish

Solicitors:

Plaintiff:     Friedman Lurie & Singh
First Defendant             :     Pynt McKay
Second Defendant         :     Pynt McKay
Third Defendant           :     Cocks Macnish

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

Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81‑043
Husher v Husher (1999) 165 ALR 384
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Randall v Dul (1994) 13 WAR 205
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16

Case(s) also cited:

Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Forsayth Mining Services Pty Ltd v Gavin Jack & Anor, unreported; FCt SCt of WA; Library No 950300; 10 May 1995
Jones v Bartlett (2000) 75 ALJR 1
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Mclean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Morris v Zanki (1997) 18 WAR 260
Parker v Hill [2000] WASCA 272
Schick v Abbott [1976] WAR 54
Thomas v O'Shea (1989) A Tort Rep 80-251
Wyong Shire Council v Shirt (1980) 146 CLR 40

MULLER DCJ: In this action the plaintiff has claimed damages for injuries he suffered in an accident while working on the premises of the third defendant. The accident was allegedly caused by the negligence of the first defendant who was an independent contractor working on the premises at the same time as the plaintiff. It is alleged that the second defendant, as the employer of the first defendant, is vicariously liable for the first defendant’s negligence. It is also alleged that the third defendant was negligent and that such negligence either caused or contributed to the plaintiff’s injuries. A Second Third Party, Control & Thermal Engineering Pty Ltd, was originally joined in the proceedings but the claim against this party was withdrawn during the trial of the action.

Liability of first and second defendants

Rodney James Sparks

The plaintiff, who was born on 2 July 1961 and is now aged 39, is married with four children aged between 5 and 12. He is a qualified refrigeration fitter in partnership with his wife. Prior to his injuries on 15 August 1994 he serviced and maintained industrial and commercial air-conditioning plants.
On 19 April 1993 he purchased the business which he and his wife now operate in partnership. The business was purchased from Control & Thermal Engineering. Having operated the business for approximately 14 months before his injury he was able to say he worked an average 40‑50 hours per week in summer and 30 hours weekly in winter. His wife shared the income and spent 10‑15 hours a week doing administrative work. At the time of purchasing the business the plaintiff agreed with the vendor, Control & Thermal Engineering, to do certain work at the premises of the third defendant, Buttercup Bakeries, at the request of the second third party which had an arrangement of its own with the third defendant.
Before his accident the plaintiff had worked regularly at the premises of the third defendant and, on those occasions when he worked there, had taken his directions from the third defendant's supervisor, a person named Michael Stanley. On the Friday preceding his injury he went to the premises of the third defendant where he met Stanley and discussed the replacement of a swivel joint in a machine called an 8000 Mixer. Photographs of this machine were tendered in evidence at the trial. The mixer is used to mix dough with a rotor. When the mixture is ready the machine is capable of being rotated outwards and downwards to unload the mixture into a receptacle. It is also capable of being rotated the other way if extra ingredients need to be added. The entire unit is refrigerated by chilled water circulated through the unit in pipes. When the ingredients have been mixed to the required standard a machine named a Hi‑Lift lifts the receptacle containing the mixture and places it in another machine called "a divider".
The configuration of the machinery at the premises is significant. A diagram depicting the configuration of the various items of plant was produced at the trial as exhibit 1. This diagram illustrates how two mixers were located parallel to each other with the unit called a Hi‑Lift situated to the rear of and between them. The two mixers were termed 8000 Mixer One and 8000 Mixer Two. A control switchboard used to operate the mixers was set to one side adjacent to mixer two. Access to the compartment between the two mixers could be gained through an electrically operated gate. The flexible joint which the plaintiff was required to replace was located in the top right hand corner of mixer one. The joint was at face level and required a person working on it to stand in the confined space between the Hi‑Lift and mixer one.
Having discussed the task in hand with Stanley it was agreed that the plaintiff should return on Monday 15 August 1994 to do the necessary work. He was unable to do the work that Friday because the machinery had to be used later that day.
At approximately 8.00 am on Monday 15 August 1994 the plaintiff returned to the premises of the third defendant. He spoke to Stanley on his arrival. At the time the plaintiff knew that another sub‑contractor and the third defendant's own maintenance staff were also working on the machinery. He said Stanley simply told him to commence what he had to do without giving him any directions as to how he should coordinate his activities with the other technicians working on the machinery. Stanley told him the machinery had been shut down for maintenance purposes but reminded him that it would have to be activated at a particular time later that day.
On examining the No 1 mixer the plaintiff found that the unit was at a tilted angle with the bottom edge almost to the extremity of its outward position very close to the support beam of the Hi‑Lift unit. While in this position it was impossible for the plaintiff to gain access to the flexible joint which he had to replace. Realising the angle of the machine would have to be altered before he could work on it the plaintiff requested a person named Fred Collett, a tradesman employed by Vancor Enterprises who had been sub‑contracted to work on the machinery, to activate the mixer and raise it into an upright position. Collett tried unsuccessfully to raise the unit. When it became clear he could not operate the machine Collett suggested contacting the first defendant, Alex Van Den Ham, who was apparently familiar with this type of machinery. Collett telephoned the first defendant who arrived at the premises at approximately 9.00 am. The plaintiff told Van Den Ham he wanted to work on the machine. After working on the machine for approximately 20 minutes Van Den Ham managed to get it into an upright position. When this had been done the first defendant, Alex Van Den Ham, told the plaintiff he would have to do some more work on mixer one later to correct the fault. The plaintiff claimed he asked the first defendant which switch on the control panel he should "lock out" to avoid the machine being activated while he was working on it. The plaintiff claimed that the first defendant pointed to the isolation switch on the main switchboard and told him to tie a "danger tag" to that switch. The plaintiff described how he went to the adjacent workshop but was unable to find a danger tag. He found what he described as an "out of service tag" and, using a piece of string, attached the tag to the immobiliser switch by threading the string through a hole in the switch itself. The plaintiff said the string threaded through the hole impeded the operation of the switch and would necessarily have to be removed before the switch could be operated. The plaintiff said the first defendant was not in the area when he attached the tag to the switch. He said he tried unsuccessfully to find the first defendant to tell him he had put an out of service tag instead of a danger tag on the control panel switch and that he had not filled in the details required on the tag. He explained he never inserted any details because he did not have a pen.
Having attached the tag to the switch the plaintiff moved to a position between mixer one and the Hi‑Lift unit and began working on the flexible hose. He was approximately 12 feet from the control panel and, as I understand the evidence, could not be seen from the area of the control panel because he was in the compartment between the two mixers. While working on the unit he moved three to four times between the mixer and the maintenance workshop shown in the diagram produced in evidence at the trial. He said he spoke to the first defendant on several occasions while working on the unit. These conversations took place both in the workshop and in the area of the unit itself. He said he believed on one occasion the first defendant told him he would have to carry out further tests on the mixer. He said he last saw the first defendant with a person named Southerwood in the workshop approximately one minute before the accident. Southerwood asked if he needed assistance and he replied he "was quite happy in here at the moment." Southerwood and Van Den Ham then left the workshop and the plaintiff said he assumed they were returning to the machine to examine it for possible electrical faults which, in his belief, could be done without activating the machine. On leaving the workshop on this final occasion the plaintiff repositioned himself at mixer one in a position very similar to that of the person depicted in the photograph, exhibit 3A, which was produced at the trial. He did not see Van Den Ham or Southerwood. While working on the unit he said his left buttock and upper left thigh were resting against the outer beam of the Hi‑Lift machine depicted in the photograph, exhibit 3A. After he had been working on the flexible joint for approximately 1‑3 minutes the plaintiff said the lifter suddenly began to rotate upwards and outwards towards the Hi‑Lift unit on which his thigh and buttock were resting. His initial reaction was one of shock and he tried to get out of the way but the bottom edge of the rotating unit crushed his left leg against the beam of the Hi‑Lift unit. As the machine continued to rotate it lifted him off the ground and he put both palms onto the top of the bottom edge of the unit as it lifted him up. When the unit had rotated to a point where its bottom edge had travelled upwards and away from the Hi‑Lift support beam the plaintiff fell down and managed to jump out of the compartment between the mixer and the Hi‑Lift unit. He fell on the ground and lay there in pain. An ambulance was called and his leg was placed in a splint before he was taken to hospital.
The plaintiff said that in his experience the out of service tag he attached to the isolation switch was frequently used in the industry particularly when new commercial air-conditioning plants were made operational. He said he believed from his own experience that an out of service tag could only be removed either by the person who attached it or by the supervisor in charge.
Having been taken to hospital the plaintiff underwent surgery and remained in hospital for 10 days before being discharged. He was able to hobble with the use of crutches but after five days managed to walk without any artificial assistance. At first the injuries to his leg only improved very slightly. The process of recovery, to the best of his recollection, began in October 1994 and continued until the present date.
The residual effects of the injury include surgical scarring extending from the top of the hip to a point approximately three inches below the groin area on the left side and then branching inwards towards the inner thigh. The leg is slightly swollen and the plaintiff suffers from what he described as an alteration of sensation in his left leg. In describing this alteration of sensation photographs were tendered depicting the area where this unusual sensitivity exists. In this area of his leg he described how his sensations varied from what he described as an "electronic feeling" which was sharply painful to numbness.
As a consequence of his injuries the plaintiff claimed to have a number of physical restrictions. He was unable to walk more than 300m without suffering pain whilst standing still for five minutes or more caused the greatest degree of pain. He described how he suffered from a dull pain around his knee and upper leg and hip pain ‑ which he described as a burning sensation ‑ while sitting. The degree of pain he suffers is proportionate to the amount of use to which he puts his leg. The more he uses his leg the more acute the pain. He described how the injuries had adversely affected his capacity to work. Standing in front of and working on an air-conditioning machine, for example, caused him substantial pain as did standing rigid on a ladder or squatting to work on a ground level unit. Even sitting in a car triggered pain in his leg. He described how the pain could only be eased by elevation in his leg and lying down.
On his return home from hospital the silver chain service attended his house and dressed his wounds for a week before his wife continued that task for approximately one week. He said he returned to work on 17 October 1994 and gradually resumed full time work. On his return to work he initially experienced pain and discomfort until by mid January 1995 he felt what he described as a burning sensation in his hip and pain in his knee and lower leg. Those symptoms are identical, he claimed, to the type of pain he now suffers from.
Initially he took drugs to ease his pain but subsequently stopped doing so and at present manages to cope with his condition without the use of drugs.

Richard Frederick Southerwood

Support for the plaintiff's account of how the accident occurred can be found in the evidence of Richard Southerwood, an electrician who, at the time of the accident, was employed by Control & Thermal Engineering Pty Ltd and was working as a contractor on the premises of the third defendant. While working in the plant room he was approached by the first defendant, Alex Van Den Ham, who asked him for advice in relation to the operation of the mixer unit. He said Van Den Ham returned a second time and asked for assistance. He described how he accompanied Van Den Ham through the workshop where he saw the plaintiff working and asked him if he needed any help. The plaintiff told him he did not need assistance. He described how he went to the control panel with Van Den Ham. He said there was no tag attached to the control panel. Van Den Ham told him that he could not move the mixer back from the tilted position it was in. He went on to explain how he and Van Den Ham then went to the bin lifter adjacent to mixer one where another contractor, Fred Collett, was working. He briefly examined the machinery and told Van Den Ham he thought the problem lay in the proximity switch. He offered to activate the proximity switch with a screwdriver while Van Den Ham operated the switch on the control panel in order to change the angle of the mixer. Van Den Ham then left and went in the direction of the control panel. Up to this point Southerwood had not seen the plaintiff. From his position he was unable to see the compartment between mixer one and mixer two where the plaintiff was working on the machinery. He described how the mixer was activated and he heard a scream. He was adamant he did not hear Van Den Ham call out anything before activating the machinery. Having been an employee of the third defendant for approximately eight years before taking up employment with Control & Thermal Engineering Pty Ltd, Southerwood claimed to be familiar with safety procedures at the Buttercup plant in Malaga and described how he had been on the safety committee before leaving his employment. As a member of the safety committee he claimed that consultants had been engaged as advisers on safety issues and that safety measures were constantly monitored and revised. He emphasised that the contractors working on the third defendant's premises were not given any special safety instructions because, as tradesmen, they were expected to have the necessary skills and knowledge to look after their own safety. When asked about the purpose of the "out of service" tags he said that, from a safety point of view, the tagging of a machine was intended to demonstrate that it was in an unsafe condition or that someone was working on the machine. He maintained that all electrical apprentices were shown the tags and their use was explained to them. He went on to add that a tag could only be removed by the person who installed it or by a supervisor.

Alex Van Den Ham

Alex Van Den Ham, who is the first defendant in the action, is a qualified electrician and director of the second defendant Vancor Enterprises Pty Ltd. He has been in the electrical trade for approximately 30 years and began working at the premises of the third defendant in 1991. In 1993 he and the witness Corlett went into business together in Vancor Enterprises Pty Ltd. During this time they continued to service the machinery at the third defendant’s premises. In 1995 Corlett left the business and the first defendant continued the business with his wife as a co‑director of Vancor Enterprises Pty Ltd.
The first defendant said he was never given any safety instructions by employees of the third defendant. Apart from being assigned work by the third defendant’s engineer, Graham Martin, and the foreman, Michael Stanley, the first defendant claimed he was left to do the work without any direct supervision or control. He agreed he was asked to sign an agreement (Exhibit 13C) containing various provisions as to the safety of the operations carried out at the third defendant’s factory but said he declined to sign a contract because it was too restrictive in its operation.
On 15 August 1994 he said he received a telephone call from the plaintiff and was told the plaintiff was unable to tilt the number 1 mixer to the correct angle. The first defendant said he went to the premises of the third defendant, spoke to Michael Stanley, the workshop foreman, and, after speaking to both Corlett and the plaintiff, managed after several attempts to activate the mixer and tilt it into an upright position. Having succeeded in this he claimed to have told the plaintiff that he could work on the mixer while he, Van den Ham, went to examine the computer programme that operated the system. It was at this point, according to the first defendant, that the plaintiff asked him how he could tag the machine so that he could work on it. The first defendant claimed he told the plaintiff to attach a danger tag to the emergency stop button. He went on to say his understanding at the time was that a danger tag, once attached by a person, could only be removed by that person or a supervisor at the premises whereas an out of service tag was simply intended to convey that the activation of the machine could cause further damage to it and could be removed, not only by the person who attached it to the unit, but also by any other person if the situation warranted it.

Having examined the computer programme the first defendant said he spoke to Southerwood in the workshop and then returned to the control panel of the mixer where he saw the plaintiff working on mixer number 1. He claimed at this point to have told the plaintiff that he wanted to do further testing on the mixer and asked him to move away from it saying he did not want the plaintiff in the vicinity of the mixer while he was operating the buttons that might cause it to tilt. He maintained the plaintiff responded by saying he had work to do in the workshop and made a joke about another colleague. Assuming that the plaintiff had left the first defendant said he went to the control panel and then returned to the workshop in the plant room where he asked the witness Southerwood for assistance. He and Southerwood walked through the plant workshop towards the mixer and saw the plaintiff working in the workshop. He recalled Southerwood asking the plaintiff if he needed assistance and the plaintiff replying that he did not. He said he and Southerwood noticed that the bin lifter had been raised off the surface by a block and tackle and that the witness, Corlett, was working on it. After a discussion with Corlett and Southerwood it was agreed that Southerwood would operate the proximity switch with a screwdriver while the first defendant went to the control panel and pressed the switch that activated the tilting mechanism. He left the others and walked past the entrance to the compartment or space between the two lifters. He claimed he looked into the space but saw no‑one in the vicinity of either lifter. He claimed that when he got to the control panel he saw an out of service tag attached to the stop button but noticed there was no writing on the tag. He removed the out of service tag because he believed that the plaintiff had attached it to the control panel simply to convey that the part of the mixer he was working on should not be operated. Since he did not intend operating that part of the mixer the first defendant decided it was safe to try to activate the tilt mechanism. He claimed to have yelled to both Southerwood and Corlett asking whether they were ready and hearing a positive response from both of them. He then pressed the tilt button and the mixer began tilting. He claimed approximately 30‑45 seconds had elapsed between the time he left the bin mixer, walked past the space between the two lifters and pressed the button. It was at this point he heard a scream and immediately depressed the emergency stop button. He claimed he then saw the plaintiff limp out from the space between the two mixers.
The first defendant also emphasised how, after the accident involving the plaintiff had occurred, he continued to work at the premises of the third defendant who introduced a series of measures designed to make the work place safer. These measures included a new tagging procedure, an electronically operated latch gate to the entrance between the two mixers, a system of mirrors to enable an operator at the control panel to see if anyone was in the space between the mixers and a warning system that was automatically activated if the mixers were operated.
The most significant aspects of the first defendant’s evidence were his assertion that, according to his understanding at the time, an out of service tag could be removed by anyone if the situation warranted it and, even more significantly, that he had actually told the plaintiff to move away from the mixer because he intended to operate the tilt system. The conversation he claimed to have had with the plaintiff on this occasion differed substantially from what the plaintiff recalled when giving evidence. The plaintiff acknowledged that the first defendant had spoken to him and told him he would have to do some more testing on the mixer. The plaintiff never said, however, that he had been told by the first defendant to move away from the machine because the first defendant intended to operate the buttons that might lead to the mixer tilting or that he, the plaintiff, allegedly responded that it was alright for the first defendant to work on the machine because he had other work to do in the workshop. I consider this conflict between the evidence of the plaintiff and that of the first defendant as being extremely significant. If, as the first defendant alleges, the plaintiff was expressly told to move away from the mixer because the first defendant intended to operate the tilt mechanism and that the plaintiff went on to acknowledge it was alright for the first defendant to work on the machine because he, intended working elsewhere, the subsequent conduct of the plaintiff in entering the confined space between the two mixers, knowing the first defendant intended to operate the tilt mechanism, might be said to have contributed substantially to his injuries.
I was not impressed with the evidence of the first defendant. When cross‑examined on the content of an accident report he had signed on the date of the accident the first defendant had to concede that what he said in that report was materially inconsistent with his evidence in court. In his evidence he was adamant he first saw the out of service tag attached to the control panel immediately before he activated the tilting mechanism and the plaintiff was injured. This was quite different from what he said in the accident report dated 15 August 1994. In that report he described how, having informed the plaintiff that he would like to carry out further tests on the mixer, he returned to the control panel and noticed the emergency stop button was depressed and that an out of service tag was attached to it. He went on in the report to say he removed the tag, unlatched the stop button and re‑set the controls. In the same report he went on to describe how further testing proved unsuccessful and led him to return to the plant room to discuss the problem with Southerwood who subsequently accompanied him back to the mixer. He then went on to describe how he left Southerwood and returned to the control panel where he activated the tilting mechanism and the accident occurred. When cross‑examined by Mr Clyne he was unable to give any satisfactory explanation as to the material discrepancy between these two accounts of when he first saw and removed the out of service tag.
The inconsistencies did not end there. In a record of interview he made with an inspector with the Department of Occupational Health, Safety and Welfare on 11 November 1994 the first defendant made a series of statements that, in my view, were materially inconsistent with the evidence he gave at the trial. During the record of interview, for example, he asserted he had told the plaintiff that he wanted to do some more tests on the mixer and asked if that was all right with the plaintiff. In that same record of interview he asserted that the plaintiff replied that it would be all right and that he had work to do in the workshop. What the first defendant did not say in that record of interview, but what he did emphasise in his evidence, was that he had actually warned the plaintiff to move away from the mixer because he did not want him to be in the vicinity of the machine when he pushed the button to activate the tilt mechanism. Another material discrepancy in the record of interview related to the point in time when he first saw the out of service tag attached to the control panel. As in his accident report made on 15 August 1994 he told the interviewer that he had seen the tag for the first time immediately after he told the plaintiff to leave the area of the mixer and not, as he later said in evidence in court, at the point in time when he actually activated the tilting mechanism and the accident occurred. A third discrepancy is to be found in his assertion in the record of interview that, after walking with Southerwood to the mixer and discussing the problem with him, he and Southerwood then went to the control panel to carry out some sort of examination before returning to the place where Corlett was working. This statement differed from his evidence where he made no mention of having gone to the control panel at any time with Southerwood. Finally, he acknowledged in his record of interview that he knew an out of service tag could only be removed by the person who attached it or the supervisor. His explanation as to how he only came to this understanding in November 1994, some three months after the accident, but was not aware of the situation at the time of the accident itself, was, I thought, totally implausible.
While none of these inconsistencies, looked at alone, might be enough to reflect adversely on the credit of the witness, the combination of them, and their degree of materiality, have led me to conclude that the first defendant was not in all respects a reliable witness and, where his evidence conflicts with that of the plaintiff, I intend to accept the latter’s testimony. In particular I am not prepared to accept that the first defendant warned the plaintiff that he was about to recommence work on the mixer and that the plaintiff should remain clear of the machine. I am also not prepared to accept that the plaintiff acknowledged any such warning by indicating he was going to work in the workshop. I accept the plaintiff’s account that all the first defendant told him was that he would have to carry out further tests on the mixer without in any way suggesting either that he was about to operate the mixer or that the plaintiff should stay away from the mixer until the tests were done.

Frederick Corlett

The evidence of Frederick Corlett, who was called as a witness by the first and second defendants, does not alter my view of the situation. At the time of the accident Corlett was a partner of the first defendant. He was working on the premises of the third defendant on the morning of the accident. He operated the tilting mechanism on the lifter at the plaintiff’s request on three occasions. He claimed to have told the plaintiff several times that a danger tag should be attached to the control panel and other precautions taken before the plaintiff worked in the space between the two mixers. He also claimed that when his partner, the first defendant, arrived on the premises he heard the first defendant tell the plaintiff that he wanted to take control of the mixer and that the plaintiff would have to stop working on it for safety reasons. He went on to assert that the plaintiff responded by saying he intended to work in the workshop on the swivel joint. Corlett described how he last saw the plaintiff working at a bench in the workshop. He said he returned to work at the bin lifter where he was later joined by the first defendant and Southerwood. As a result of the discussions that took place it was agreed that Southerwood would depress the proximity switch on the bin lifter with a screwdriver while the first defendant operated the controls of the control panel. Corlett claimed that when the first defendant was ready he called out: “Are we right – are we clear?”. At this point Corlett said he was standing at the bottom end of the number 1 mixer near the entrance to the space between number 1 and number 2 mixers. He claimed to have heard both the first defendant and Southerwood acknowledge that they were ready to proceed. He described how he moved forwards and looked into the space between the two mixers. He said he had an unobstructed view of the spot where the plaintiff had previously been working at the swivel joint and that there was no‑one there. He described how he stepped back approximately 1.5 metres from the entrance to the space between the mixers and an interval of 5‑6 seconds elapsed before the tilting mechanism began to operate. It was then he heard a scream and saw the plaintiff stumbling out of the space between the two mixers.
I do have reservations about the reliability of Corlett’s testimony. He was the first defendant’s partner at the time and admitted having discussed the details of the incident with the first defendant after it occurred. What really gave me cause for concern, however, was Corlett's assertion that he actually looked into the space between the two mixers immediately before the tilting mechanism was operated and did not see the plaintiff there. I simply cannot accept this evidence. Corlett was in a good position to see anyone who entered the space between the two mixers before the accident. After last seeing the plaintiff working on a bench in the workshop Corlett made his way back to the bin lifter where he resumed work. He was joined later by Southerwood and the first defendant. He then moved to a position at the bottom of mixer number 1 very close to the entrance to the space between the two mixers. Up to this point in time he had not seen the plaintiff in the vicinity of the mixer. I am satisfied, however, that by this time the plaintiff must have re‑entered the space between the two mixers and resumed work on the swivel joint. If, as Corlett claimed, he went to the entrance of the space between the two mixers and looked inside he would have seen the plaintiff working on the swivel joint approximately 1‑2 metres away from the entrance. He claims he saw no‑one at all. After that he stepped back 1½ metres and some 5‑6 seconds elapsed before the tilting mechanism was activated. I cannot accept Corlett's assertion that he checked the space between the two mixers before signalling the all clear to the first defendant. His evidence on this point simply flies in the face of the known fact that the plaintiff must have been in the space between the two mixers at that time. I cannot accept the submission made by Ms Cahill that the more probable inference is that the plaintiff entered the space between the mixers from the rear in the very short time between Corlett checking the space and the machine beginning to tilt. I also believe that Corlett's evidence as to the verbal warning given by the first defendant, and the alleged response by both Southerwood and Corlett, is open to doubt. It conflicts with the plaintiff’s evidence but, even more significantly, is denied by Southerwood who heard no warning from the first defendant and denied he responded verbally before the mixer was activated. Once again I prefer the evidence of Southerwood on this not insignificant issue. He had no reason to deny an event of such significance if it had, in fact, occurred.
What has to be remembered is that the first defendant knew who had attached the out of service tag to the control panel and why it had been put there. The plaintiff had actually asked the first defendant how he could tag the machine so that he could work on it. From the very outset the first defendant knew the plaintiff was going to work on the machine. He told him to attach a danger tag to the emergency stop button on the control panel. He knew the only object in tagging the machine was to protect the plaintiff. The fact that the plaintiff was unable to find a danger tag and attached an out of service tag instead is, in my view, quite immaterial. Whether the two tags served different purposes, and whatever the first defendant’s understanding of the purpose of each tag might have been, he knew, or ought reasonably to have known, that the out of service tag attached to the control panel must have been put there by the plaintiff on the first defendant’s own advice so that the plaintiff could work on the mixer in safety. The fact that an out of service tag had been used as a substitute for a danger tag, and the plaintiff’s omission to fill in any of the details required on the tag itself, were once again quite immaterial. This is not a case where a person, not knowing what had happened earlier, removed the out of service tag and activated the machine believing the tag was simply intended to warn of the possibility of damage to the machinery itself if it was operated. Rather this is a case where the person activating the tilting mechanism knew from the outset who had attached the tag to the control panel and the reason why the tag had been put there. It had been put there on the first defendant’s own advice to prevent the lifter from being activated while the plaintiff was working on it. In these circumstances the first defendant could hardly be heard to say he believed the only purpose of the out of service tag was to protect the machinery from damage by being activated. He knew or must have known all along that was not the case. He knew or must have known the plaintiff had put the tag on the control panel on the first defendant’s own recommendation to protect the plaintiff while he was working in the confined space between the two mixers. The first defendant owed the plaintiff a duty of care not to operate the mixer while the plaintiff was working on it. When he saw the out of service tag on the emergency stop button he ought reasonably to have foreseen the likelihood of the plaintiff being in the vicinity of the mixer. He knew that was why it had been put there. By removing the tag and activating the tilting mechanism without checking that the plaintiff was clear of the mixer he breached his duty of care towards the plaintiff. It was this negligent act that caused the plaintiff’s injuries.

Liability of the third defendant

Paragraph 5.3 of the statement of claim alleges that:
"5.3 Further and in the alternative the incident as pleaded as paragraph 2.7 above was caused by the negligence of the Third Defendant in that it:
(a)failed to supervise or adequately supervise the activities of the persons working at the premises;
(b)failed to co‑ordinate or adequately co‑ordinate the activities of persons working at the premises;
(c)failed to devise a system for work where the Plaintiff would not be exposed to danger;
(d)failed to locate the controls of the machine in such a position that all persons endeavouring to operate the machine could ensure that there were no other persons working on or near the machine;
(d)failed to install mirrors or close circuit electronic monitoring where the controls of the machine were such that any persons working on or near the machine could be seen or detected prior to the switching on of the machine;
(e)failed to train or adequately train the persons working at the premises as to safe work practices to be used at the premises;
(f)failed to implement and enforce a fail safe lock out and tag procedure for the machine (eg key lock out as recommended by Worksafe and implement by the Defendant after the incident);
(g)failed to supply a safe place of work; or to fence off the controls."
In the alternative the statement of claim alleges that the third defendant was in breach of the duty it owed to the plaintiff pursuant to s 19 of the Occupational Health Safety and Welfare Act 1984.
I accept the third defendant owed the plaintiff a duty of care. The nature of that duty was explained by Mason J in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 31:
"The interdependence of the activities carried out in the forest, the need for co‑ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. 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 retain 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. Brodribb’s ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machine."

Following the plaintiff’s accident Kevin John Campbell, an inspector with the Department of Occupational Safety and Health Welfare, examined the machinery and noticed that what he described as the limit switch on the top of the gate or barrier located between the two mixers was not working and that the safety switch on the control panel did not have a key lock on it. The significance of the limit switch on the top of the door or barrier between the two mixers being non‑operational was never explained in evidence. The absence of a key lock on the operating panel simply meant that the switch on the panel could be used to activate the machine without the operator having to insert a key and unlock the mechanism before activating the machine.
When the inspector returned to the premises on 5 September 1995 he noticed that the limit switch on the top of the barrier or door between the two mixers had been replaced and that a key lock system had been installed in the control panel. He also noticed that a barrier had been erected at the rear of the aperture or space between the two lifters to prevent access from that end.
I am unable to attach any significance to the fact that the limit switch on the top of the door or barrier between the two lifters was non‑operational or the fact that the operating switch on the control panel did not have a key lock. There is no evidence that either of those factors contributed to the plaintiff’s accident. In the absence of any evidence that an operational switch on the gate or barrier leading to the space between the two mixers would have prevented the machine from being activated from the control panel while the plaintiff was working on the lifter I am unable to infer that this defect, if it can be called that, contributed causally to the accident. Likewise the absence of a key lock on the control panel has not been shown to have contributed to the accident. While a key lock might be considered the most effective way of rendering machinery inoperative during maintenance it is significant that the Department of Occupational Health, Safety and Welfare circulated a pamphlet (Exhibit 24) expressly recognising that, where locking out may not always be practical, a system of tagging machines during maintenance, using either a danger tag or an out of service tag, should be followed as an alternative procedure.
The installation of mirrors after the accident does not, in my view, suggest it was unsafe to operate the system without them. What must be remembered is that a tagging system was in place and, had the first defendant followed the usual precautions associated with this system, the accident would never have happened. The alleged failure of the third defendant to install mirrors did not, in my view, in any way contribute to what happened. The cause of the accident was quite simply the unreasonable failure of the first defendant to adopt the normal precautionary steps associated with the tagging system in place at the time.
The allegation that the third defendant was negligent in failing to supervise the activities of persons working at the premises and failing to coordinate the activities of the independent contractors who were there on the morning in question is, in my view, quite without foundation. The machinery had been shut down for the repairs to be undertaken. The third defendant had in place a tagging system which the contractors could employ if the need arose. I accept that "danger" and "out of service" tags were available in the workshop office. There was simply no need for the third defendant to supervise the activities of the contractors or warn them of the danger of operating any of the machinery while others might be in the vicinity. The third defendant was entitled to assume that the contractors were experts in their own field and acquainted with the basic rules of safety. It had provided a tagging system which was available for use if special precautions needed to be taken. The tagging procedure was one approved by the relevant agency. There was no need to instruct skilled tradesmen in the operation of tagging procedures. The plaintiff used this system to protect himself on the express advice of the first defendant. It was the negligence of the first defendant, who was essentially familiar with the tagging procedure, in failing to take the requisite precautionary steps associated with this procedure that caused the accident. The lack of supervision or coordination of the activities of the tradesmen working on the premises that morning had, in my view, nothing whatever to do with the accident that occurred.
While the third defendant undoubtedly owed a duty of care to contractors on the premises I am not satisfied that the plaintiff has proved the third defendant was in breach of that duty. I am unable to find the system of work in place at the time was unsafe. While there was obviously a risk of injury to a contractor arising from machinery being operated while it was being worked on I do not believe there was any need for the third defendant to give directions as to when or where the work was to be done or to co‑ordinate the activities of the contractors involved. I believe this was a case where, in the words of Brennan J in Brodribb (supra) at p 47:
"The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility."
The third defendant had a tagging system in place when machinery was worked on. Danger and out of service tags were readily available. The evidence revealed that the contractors, including the first defendant, were all familiar with the essential requirements of this tagging procedure. The first defendant knew who had put the tag there and why it had been put there. Had an employee of the third defendant been aware of the first defendant’s intended removal of the out of service tag and the operation of the tilting mechanism of the mixer he or she could undoubtedly have been expected to put a stop to it. But such supervision was not necessary. It was not necessary because the first defendant was familiar with the essential features of the procedure and, knowing the plaintiff was going to work on the mixer, expressly told him to tag it. He ought reasonably to have known he should not have removed that tag and operated the machine as he did.
Apart from the tagging procedure that was in place the evidence established that the control panel had a built in safety mechanism. According to the first defendant the emergency stop button had been depressed and the tag had been attached to it. He accepted he had to re‑set the button and cancel the alarm by exiting from one screen to another before the tilting mechanism could be activated.
I am not satisfied that the third defendant has been shown to have been negligent.

Contributory negligence

In the joint defence filed by the first and second defendants it was alleged in the alternative that the plaintiff suffered his injuries as a result partly of his own fault. The findings I have already made in relation to the evidence of the first defendant and the witness Corlett apply in this area as well. I do not propose to set out in detail each particular of negligence pleaded by the first and second defendants. Having made the findings of fact already referred to I have little difficulty in coming to the conclusion that it has not been shown the plaintiff departed in any way from the standard of a reasonable contractor in his position. Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. The allegation that the plaintiff was negligent in failing to use a danger tag when one was available is, in my view, without foundation. I accept his evidence that he was unable to find a danger tag. He may simply have overlooked the danger tags that were in a container or there may not have been any in the workshop when he looked for one. What is significant is that he took the precaution of using an out of service tag knowing the first defendant was aware the plaintiff was working on the mixer and that the machine could only have been tagged by the plaintiff. Likewise the allegation that the plaintiff was negligent in failing to tell the first defendant he had used an out of service tag instead of a danger tag is, in my judgment, immaterial. There was no need for him to advise the first defendant that he had used a substitute tag when the first defendant already knew who had put the tag there and why it had been put there. I do not accept the submission by counsel for the first and second defendants that I should find the plaintiff failed to stay away from the mixer after being told by the first defendant to do so; nor do I accept the submission that he recommenced working on the mixer when he was aware that the first defendant was working on it. I have already indicated I am satisfied he did not enter the mixer area from the rear and that there was no warning call from the first defendant before the tilting mechanism was operated.
Given these findings I am unable to accept that the plaintiff’s injuries were a result partly of his own fault.

The medical evidence

Professor F L Mastaglia

Professor Mastaglia, a consultant neurologist, saw the plaintiff for the first time on 11 October 1994 less than two months after the accident. After being told the history of the plaintiff's injuries following the accident Prof Mastaglia carried out an examination of the plaintiff's left thigh which revealed marked sensory changes extending over the medial part of the left thigh, the front and the medial part of the knee and the medial portion of the calf to a level approximately 10 cms above the ankle. He also noted weakness of hip flexion and occasional involuntary jerking movements in the left leg accompanied by a slight limp when the plaintiff walked. His initial conclusion was that the plaintiff had sustained a severe injury to the left femoral nerve. This injury encompassed what he described as both neuropraxic and axonal components. The neuropraxic nerve damage was, in his opinion, reversible in what would normally be a short period of time. The axonal damage, however, was consistent with the cabling of the nerves actually having broken down resulting in a loss of conduction of electrical impulses through the nerve. This damage, in his view, could only be reversed through regeneration of the nerve fibre over a substantial period of time and could lead to altered sensations in the left limb. Prof Mastaglia emphasised that it was not simply the left thigh that was adversely affected by the nerve injury: the compression of the femoral nerve in the area of the thigh could, in his opinion, lead to symptoms in the remainder of the limb including the knee, ankle and foot. Prof Mastaglia saw the plaintiff on approximately four subsequent occasions the last of which was on 4 November 1999. On this occasion he noted that the jerking movements of the plaintiff's left leg had resolved as had his tendency to limp when walking. He also noted that there was no longer any atrophy of the thigh or lower leg. What was apparent, however, was that the plaintiff's muscle power was still adversely affected as manifested by what Prof Mastaglia described as mild weakness of flexion of the left hip. Even more significantly he found that left knee reflex was still diminished. This impairment in knee reflex indicated continuing problems in the circuitry that controls muscle movement in the leg and affects the stability and overall performance of the limb. The plaintiff's description of altered sensations in the limb were, in Prof Mastaglia's opinion, consistent with his original diagnosis of axonal damage to the nerves. He concluded that the plaintiff had a residual disability in the left leg in the order of 30 per cent. This percentage figure encompassed, not only loss of motor function, but also other factors such as the likely diminution in levels of endurance.
In his report dated 10 November 1999, and again in his evidence at the trial of the action, he expressed the view that it was unlikely there would be further deterioration in the plaintiff's neurological condition. He said he was unable to offer the plaintiff any further treatment.
Relying on his assessment of the extent of the plaintiff's neurological injuries Prof Mastaglia expressed the view that, while the plaintiff might be able to continue to perform his pre‑accident work involving the maintenance and servicing of commercial and industrial air-conditioning machinery, his levels of performance and endurance would be reduced. He agreed with the proposition that work involving prolonged periods of standing, climbing ladders and squatting would in all likelihood result in the pain and discomfort described by the plaintiff in his evidence and, although the plaintiff might have the capacity to carry out his pre‑accident work, he would only be able to do so on a reduced basis with intervals of rest. In reaching this conclusion, which was contradicted by another neurologist called by the third defendant, it is significant that Prof Mastaglia relied, not only on his assessment of the neurological damage, but also the injury to the femoral artery, which affected the blood supply to the plaintiff's leg, and the damage to the tissues of that leg. These "crush" injuries, as they were referred to, were significant enough to lead Prof Mastaglia to comment that, in conjunction with the injury to the femoral nerve, he was surprised that the plaintiff did not display a higher level of residual symptomatology and disability.

Dr W M Carroll

Unlike Prof Mastaglia, Dr Carroll, a practising neurologist, did not see the plaintiff immediately after his injury but examined him clinically on one occasion and saw him on two further occasions when diagnostic tests were performed. Having considered the plaintiff's history, and relying upon his clinical observations and the electromyography and nerve conduction tests he performed in December 1997, Dr Carroll concluded that, while there had been a slight degree of damage to the major nerve trunk in terms of a small number of fibres travelling to the muscle of the thigh and to the skin of the medial leg below the knee, there was little evidence he could find of any neurological deficit in the leg supplied by the femoral nerve that would cause any functional disability. In a report introduced into evidence, which he commented upon in his testimony, he concluded there had been a total sensory loss in the region of 1.5 per cent and a motor loss of 1.75 per cent following upon the nerve damage he was able to detect. He disagreed with the findings of Prof Mastaglia and, in particular, contradicted the latter's opinion that a loss of endurance was quantifiable and could be factored into the ultimate assessment of loss of function. In his opinion the most likely explanation of the plaintiff's apparent restriction in carrying out his pre‑accident work was a mental state of apprehension over his neuropathic symptoms. His objective findings excluded the likelihood of the plaintiff's pain being related to his neurological condition. Given these findings he expressed the view that the plaintiff ought to be able to stand, squat, and climb ladders without experiencing pain from any nerve injury he might have suffered.
When questioned about the effects of the so‑called "crush" injury Dr Carroll was less positive. While conceding that the plaintiff had suffered both vascular and soft tissue injuries at the time of the accident he expressed the view that these injuries had resolved and that there was no longer any clinical signs of their presence. He agreed that theoretically such injuries might explain the plaintiff's pain but, in the absence of any clinical signs pointing to their existence, he was unable to accept Prof Mastaglia's evidence on that point.

Mr F J Prendergast

Following his injury the plaintiff was found to have an occlusion of the left superficial and profundafemoral arteries. These were repaired surgically and he was reviewed by Mr F J Prendergast, a vascular surgeon, both in hospital and later after his discharge from hospital. Upon being examined after surgery Mr Prendergast found that the vascular reconstruction had been successful and the detection of peripheral pulses in both lower limbs indicated that the arterial repairs had resolved the plaintiff's vascular injuries. A later examination of the plaintiff in 2001 confirmed that the arterial repairs remained stable. In Mr Prendergast's opinion no further vascular treatment is necessary although he did refer to the possibility of the vein grafts narrowing over a period of time and necessitating further treatment. Such treatment could take the form of angioplasty or, as a last resort, further surgical intervention. Mr Prendergast was unable to give any opinion as to the possible likelihood of such further treatment being necessary.
While accepting that the plaintiff continued to complain of discomfort after prolonged standing and also suffered from a burning sensation in the left hip, knee and lower third of his leg, Mr Prendergast expressed the view that this condition was not a result of his vascular injuries but was more likely to be the result of the crush injury resulting in muscular, ligamentous and nerve damage. In Mr Prendergast's opinion there was no physical impediment to the plaintiff returning to full time work in a sedentary capacity.

Dr Kevin Nikellys

Dr Kevin Nikellys, the plaintiff's general practitioner, saw him initially on 9 September 1994. In a report dated 30 March 1995 he expressly declined to express an opinion to the plaintiff's solicitors on the question of what residual or permanent disabilities the plaintiff was likely to suffer from because, in his view at the time, such issues were best left to the specialists who were dealing with him. Notwithstanding these reservations Dr Nikellys did express his opinion on these issues in a later report dated 14 April 1997 when he assessed the plaintiff's "percentage functional disability" as being approximately 60 per cent. He explained the expression "functional disability" as being synonymous with the plaintiff's capacity to work as a refrigeration technician. He also expressed the view that his opinion as to the level of the plaintiff's functional disability in 1997 remains the same today.
This assessment of a 60 per cent disablement was challenged in cross‑examination. There are several reasons why, in my view, little weight can be given to this assessment. In the first place Dr Nikellys' willingness to express a view on this issue in his report dated 14 April 1997 was quite inconsistent with his initial reservations in his report dated 30 March 1995 when he expressly declined to give any opinion on the basis that the issue was one best left to the specialist whom the plaintiff was seeing. In the second place I was not convinced by the explanation given by Dr Nikellys as to why in April 1997 he felt he was able to express a view on a subject he had expressly declined to express a view on in the past. His explanation that the unchanging nature of the plaintiff's symptoms and the lack of any improvement in his condition over a period of time enabled him to express his view on this issue in April 1997 was not, in my view, convincing. Finally, in reaching that assessment, Dr Nikellys conceded he had relied upon the reports of selective specialists and his own admitted incomplete understanding of the plaintiff's pre‑accident work to reach the conclusion he did.

For these reasons I have relied largely on economic schedules provided by the plaintiff which are reproduced here with some modifications. While the figures contained in this schedule were contested by the defendants I believe they do substantially reflect the measure of the plaintiff’s loss. One of the more controversial features of the plaintiff’s calculations was the estimated loss of profits for the years 1998/1999, 1999/2000 and 2000/2001. (See par 5(b), 6(b) and 7 of economic schedules). These estimated loss of profits, based on alleged lost sub‑contract work, are, in my view, not compensable because I am not satisfied the decline in profits in those years has been shown to have been due to a loss of customers through the use of sub‑contractors, the inefficiency of substitute labour or the poaching of the plaintiff’s customer base. The only allowance I am prepared to make for those particular periods is the actual cost to the plaintiff of having to engage contract labour to do the work which, but for his injury, I believe he could have done himself.
I reproduce the economic schedules provided by the plaintiff with some modifications in relation to the financial year 1994/1995:
Calculations
1.Financial year 1994/1995
(a)Cost of hire of refrigeration
Mechanic (see page 10 of
Exhibit 9)  $3,779.59
(b)Plaintiff’s share             $1,889.79
(c)Wife’s share                  $1,889.79
Total net loss for 1994/1995  $3,779.59
2.Financial year 1995/1996
(a)Cost of hire of refrigeration
Mechanic (see page 27 of
Exhibit 9)  $48,231.00
(b)Plaintiff’s share            $24,115.50
(above actual income of
$18,653 – see page 164
of Exhibit 10)
Less tax at marginal rate
of 20% on $2,047.00       $409.40
Less tax at marginal rate
of 34% on $17,300.00     $5,882.00
Less tax at marginal rate
of 43% on $4,768.50     $2,050.46
Less Medicare levy of
1.5%$361.73 Net Loss $15,411.92
(c)Wife’s share   Net Loss $15,411.92
Total net loss for 1995/1996  $30,823.84
3.Financial year 1996/1997
(a)Cost of hire of refrigeration
Mechanic (see page 91 of
Exhibit 9)  $60,114.40
(b)Plaintiff’s share            $30,057.20
(above actual income of
$16,399 – see page 169
of Exhibit 10)
Less tax at marginal rate
of 20% on $4,301.00       $860.20
Less tax at marginal rate
of 34% on $17,300.00     $5,882.00
Less tax at marginal rate
of 43% on $8,456.20     $3,636.17
Less Medicare levy of
1.5%$450.00      Net Loss $19,227.97
(c)Wife’s share  Net Loss $19,227.97
Total net loss for 1996/1997  $38,455.94
4.Financial year 1997/1998
(a)Cost of hire of refrigeration
Mechanic (see page 142 and
143 of Exhibit 9)  $68,795.00
(b)Plaintiff’s share            $34,397.50
(above actual income of
$16,399 – see page 177
of Exhibit 10)
Less tax at marginal rate
of 20% on $4,010.00       $802.00
Less tax at marginal rate
of 34% on $17,300.00     $5,882.00
Less tax at marginal rate
of 43% on $13,087.50     $5,627.62
Less Medicare levy of
1.5%$515.96      Net Loss $21,569.92
(c)Wife’s share  Net Loss $21,569.92
Total net loss for 1997/1998  $43,139.84
5.Financial year 1998/1999
(a)Cost of hire of refrigeration
Mechanic (see page 206
of Exhibit 9)  $53,472.50
(b)Plaintiff’s share            $26,736.25
Less tax$5,655.58            $21,086.67
(c)Wife's share                  $26,736.25
Less tax$5,655.58            $21,086.67
(d)Wife’s share  Net Loss $22,794.11
Total net loss for 1998/1999  $42,173.34
6.Financial year 1999/2000
(a)Cost of hire of refrigeration
Mechanic (see page 91
of Exhibit 9)  $26,841.00
(b)Plaintiff’s share            $13,420.50
Less tax $2,684.10            $10,763.40
(c)Wife’s share                 $13,420.50
Less tax$2,684.10            $10,763.40
Total net loss for 1999/2000  $21,526.80
Total  $179,899.35
I have considered scaling down the award to reflect adverse contingencies but, rather than do this, I propose simply not to allow any award for interest on the figure reflecting past economic loss. In adopting this approach I have taken into account the increase in business turnover before the decline set in. The favourable contingencies are really outweighed by the unfavourable contingencies such as illness, accident or decline in business activity which was essentially a one man business. Given this finding the non‑award of interest really reflects a scaling down for adverse contingencies.

Future loss of earning capacity

I have to decide what earning capacity has been impaired or lost and what financial loss has been occasioned by that impairment or loss. Husher v Husher (1999) 165 ALR 384 at 389‑390. The loss of capacity is the plaintiff’s inability to maintain and service commercial air‑conditioning and refrigeration equipment. I am satisfied he has lost that capacity completely. The maintenance and service of industrial equipment was the sole focus of his business before the accident. The subsequent introduction of split systems was secondary to the maintenance and service work and would have been undertaken by the plaintiff even if he had not been injured. Given his loss of capacity the plaintiff will have to engage sub‑contractors to do the service and maintenance work he can no longer do. He is not trained or equipped to change the nature of his employment. But the reality is that the business is hardly likely to have continued to survive using contract labour. This is amply demonstrated by the sharp downturn in the income of the business in 1999 and again in 2000. The probabilities are that the income will continue to decline to the point where the plaintiff will simply have to bring this business to an end. He will then have to find something else to do and, given the limited opportunities that might be available, the probabilities are that he would earn a lesser income than he did when he was able to work in his business. Accepting, as I do, that the business simply could not be expected to continue I do not believe his future loss of earning capacity ought to be calculated on what the plaintiff would have to pay to obtain substitute labour to keep the business operating.
The plaintiff is now aged 40. He said he wanted to continue his business and hoped to make it more profitable in the future. He initially said in evidence he hoped to stop working at the age of 55. Later he said he intended continuing until aged 65. I intend relying on his initial assertion that he would, but for the injury, have continued working until about age 55.
At present the plaintiff said he does 10‑15 hours a week in administration, 3 hours a week in maintenance and service and 20 hours a week at peak periods in split systems. I accept he is doing the best he can in the hope his business improves. I am unable to find that anything he has done is unreasonable or indicative of a failure to mitigate his losses.
The plaintiff purchased the business on 19 April 1993. He was injured on 15 August 1994. Bearing in mind that he purchased a business with a built in customer base I believe it would be relevant to look at his income for the financial year 1994 when, as the evidence shows, he operated the newly acquired business on his own. Both his and his wife's income tax return for the year ending 1994 reveal a gross income of approximately $58,000. Since the plaintiff's wife was a partner in the business he had the advantage of splitting his income with her for tax purposes. The tax returns for both the plaintiff and his wife in that financial year reveal that each paid approximately $6,000 in tax or a total of $12,000. Their joint net income for the year ending 1994 was approximately $46,000.
Looking at the income of the business in the year ending 1995 is more difficult. For a part of that financial year the plaintiff was injured and did not work at all. He had to engage a contractor to do the work during his enforced absence. When he returned to work on 17 October 1994 he was able to do maintenance and service work but he had to engage a sub contractor on 21 December 1994 because of the expansion in the volume of work available. For these reasons I do not believe the financial returns of the business for the year ending 1995 can be relied upon as a true reflection of what the plaintiff could have earned had he been able to do all the work himself. Having said that it is interesting to observe from the tax returns of both the plaintiff and his wife for the year ending 1995 that their gross income remained at much the same level as the previous year.
It is difficult to estimate what the plaintiff would have earned in his business but for his injury. There is a strong likelihood the business would have expanded. The fact that he had to engage another contractor in 1994 to assist him because of an increase in the volume of work is evidence of this. Whether any such expansion could have been maintained is entirely speculative. In the absence of any other evidence what I propose to do is to take the net income of approximately $46,000 in 1994 as the basis for calculating the plaintiff's future loss of earning capacity. An annual net income of $46,000 represents a net weekly income of $884.00. Given my finding that the plaintiff, but for his injury, was likely to have continued working until age 55 the appropriate multiplier for a period of 15 years is 522.
$884 x 552 = $487,968.
The plaintiff has a residual earning capacity which must be taken into account by the deduction of a percentage amount from the figure of $487,968 calculated for total loss of earning capacity. Bowen v Tutte (1990) A Tort Rep 81‑043. I have already discussed the evidence relating to the complainant's residual capacity. This evidence leads me to the conclusion that an award of damages must be reduced by 30 per cent so as to reflect the difference between his earning capacity as it was before the accident and his earning capacity as I now find it to be.
$487,968 – 30% = $341,577.
The award I have made must be adjusted to reflect a number of contingencies. One of the major contingencies to be taken into consideration is the possibility of the plaintiff's income from his business having increased over time. As against this, however, the work he undertook carried a certain element of risk. He was required to work in confined spaces and the physical component of his work was, in my view, very demanding. There was always a possibility that he might have been injured and become incapacitated. Since his business was primarily a one man affair his inability to work would have had a profound financial effect on the business. I must also take into account the possibility of a down turn in the industry and the adverse effects this might have had on the plaintiff's capacity to generate an income. Another factor I cannot overlook is that the plaintiff, while he was in business, enjoyed the ability to split his income with his spouse and derive a tax advantage from this arrangement. This benefit may have come to an end.
Weighing the positive and negative contingencies against one another I believe a further deduction of 10 per cent should be made. Black v Motor Vehicle Insurance Trust [1986] WAR 32.
$341,577 – 10% = $307,420.
I award the plaintiff $307,420 in respect of his future loss of earning capacity.

Pain and suffering and loss of amenities

I am satisfied the plaintiff suffered considerable pain and discomfort as a consequence of what was a very serious injury. He had to undergo surgery and remained in hospital for 10 days before being discharged on crutches. His recovery to the point of being able to return to work took several months. He is left with residual scarring, a slight swelling of the injured limb and an alteration of sensation. His physical restrictions preclude him from walking for any great distance or standing for any length of time. He can no longer take part in the social and sporting activities he enjoyed before his injury. The report of a clinical psychologist introduced by consent suggests that he has had extreme difficulties adjusting to his situation and at one point was manifesting signs of severe depression and anxiety accompanied by loss of self‑confidence and self esteem.
The plaintiff is now aged only 40. He has many years of life ahead of him. The potential for enjoyment of these future years has, in my view, been seriously impaired by the injury he sustained in the accident. I award the plaintiff $40,000 in respect of this head of damage.

Summary of award

Past loss of earning capacity               $179,899.35
Future loss of earning capacity            $307,420.00
Pain and suffering and loss of amenities $40,000.00
Special damages  $2,687.00
$530,006.35