Staines v Encounter Holdings Pty Ltd - [2001] WADC 275

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STAINES -v- ENCOUNTER HOLDINGS PTY LTD [2001] WADC 275

CORAM: FENBURY DCJ

HEARD: 3- 7 SEPTEMBER 2001

DELIVERED : 7 DECEMBER 2001

FILE NO/S: CIV 3389 of 1999

BETWEEN: CLIVE STAINES
Plaintiff
AND
ENCOUNTER HOLDINGS PTY LTD
Defendant

Catchwords:

Negligence - Liability and quantum of damages - No breach of duty by employer - Causation of injury multifactorial - Degenerative condition lumbar spine

Legislation:

Workers' Compensation and Rehabilitation Act 1981 s 93D, s 93E

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr T N Cullity
Defendant: Mr M H Zilko

Solicitors:

Plaintiff: Lewis Blyth & Hooper
Defendant: Pynt McKay

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

Chance v Alcoa of Australia Limited (1990) A Tort Rep 81‑017
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410
Jones v Dunkel (1959) 101 CLR 298
McGhee v National Coal Board [1973] 1 WLR 1
Purkess v Crittenden (1965) 114 CLR 164
Raimondo v State of South Australia (1979) 23 ALR 513
Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594
Watts v Rake (1960) 108 CLR 158
West v Government Insurance Office (NSW) (1981) 148 CLR 62
Western Australia v Watson [1990] WAR 248
Wilsher v Essex Area Health Authority [1988] 2 WLR 557

Case(s) also cited:

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

FENBURY DCJ: This is an action for damages for personal injury allegedly suffered in the course of employment. Liability and quantum are both in dispute.
The defendant company was in the fruit growing business and operated a citrus orchard at premises known as "Myara" in Yamba, Western Australia. In March 1990, the plaintiff was employed by the defendant as an orchard hand and labourer. During various periods of a year he was fully engaged in picking fruit but at other times he did other work. The plaintiff's duties varied seasonally because different citrus fruits came on for picking at different times of the year. For instance, from about January until about May Valencia oranges were picked and the plaintiff was almost fully engaged in that activity. But at other times of the year, for example when mandarins were being picked, he would only be picking for about half of his time.
The plaintiff was born on 2 November 1957. He left school at the age of 15. He was brought up near Kojonup. He has worked in manual labour of various kinds throughout his working life. He has generally always been in employment.
In pars 8‑11 of his statement of claim the plaintiff pleads an accident and injury that occurred on or about 1 December 1994 in the course of his employment. Whilst loading the defendant's produce onto a stationary truck using an overhead gantry crane the plaintiff alleges that he lost his footing and fell off the back of the truck. He attributes the cause of his loss of footing and the fall to damaged or missing floorboards on the tray. The plaintiff sustained soft tissue injuries to his lumbar and thoracic spine.
In opening counsel for the plaintiff informed the Court that it was not the plaintiff's case that this incident was causally related to the spinal disabilities upon which the plaintiff now sues.

Brief outline of the claim

On 7 March 1997 the plaintiff was engaged in picking oranges for the defendant company. On one occasion he had reason to be standing on the ground to collect a dozen or so oranges that had spilled out of the side of a bin or bag. He stooped down to pick up these oranges and put them in the bin. The action was a stooping, standing and twisting sort of movement and in the middle of it the plaintiff felt sudden intense disabling low back pain.
This event in isolation does not have the sorts of features that suggest a breach of the employer's duty of care and the plaintiff does not rely on it either. However, he asserts that his low back was placed in a vulnerable state by reason of the unreasonable and dangerous physical demands of his employment with the defendant in the years prior to March 1997.
In the course of his employment with the defendant the plaintiff often was required to use a cherry picker to pick fruit. A cherry picker is an hydraulically operated machine which enables the operator to be lifted and moved about at height whilst standing in a crows nest‑like three sided box or bucket attached to the end of a hydraulic arm/elbow like structure. The person in the bucket operates the machine whilst he is standing by using pedals to which his feet are strapped. His hands are free to pick fruit. The controls enable the operator to move both the machine and the bucket forwards and backwards and the bucket from side to side and upwards and downwards.
The six photographs that comprise Exhibit A illustrate the machine.
Whilst operating the cherry picker and standing in the bucket the plaintiff would position himself as required, pick fruit and place it in a canvas open ended tube bag attached to the front of the bucket. See Exhibit A4, A5 and A6. The bag was attached in such a way that its volume could be regulated by two ropes. The bag would initially be folded in half and rolled up from the bottom end but then gradually unrolled by the operator as it was filled with fruit. The purpose of this system was to reduce the risk of bruising of fruit by limiting the distance of the "fall" of the fruit once it was placed in the bag. As the bag was filled so it was unravelled or unrolled by the operator by adjustment of ropes attached to each corner of the end of the bag. When filled the contents would be retained by the end of the bag being folded over and held up by the ropes on each corner. The ropes were knotted at intervals and secured by being jammed in U shaped metal attachments welded to each side of the bucket (the "U brackets").
The plaintiff stated that one of the main difficulties whilst handling the bag attached to the cherry picker bucket arose when the bag was finally let out to its full extent and the fruit emptied into a bin. The plaintiff said he was required to bend forward from waist level in the bucket and take hold of the ropes that controlled the extent to which the end of the bag was rolled up, briefly taking the weight of the bag as he released the ropes from the U brackets, and then slowly released the ropes causing the bag to unravel and empty. He asserted he would do this 20‑25 times in a day. The plaintiff asserted in the witness box, although this was not pleaded specifically, that the ropes that were attached to the bag were too short for this purpose requiring him to lean forward further than was necessary which, in addition, caused added strain to his back.
Further the plaintiff said he was required gradually to let out the bag as it filled with fruit and he had to take the weight on the ropes to achieve this approximately 60‑75 times per day when he freed the ropes from the U brackets.
In addition to operating the cherry picker the plaintiff was also required to pick fruit from the lower limbs of trees whilst he was standing on the ground. He was provided with a canvas bag to carry this fruit. The bag was strapped to the front of his body with a form of harness. When full the bag weighed approximately 20 kg.
The plaintiff's case is that whilst conducting the work of picking citrus fruit for his employer and manhandling the two types of canvas bags above described, his back was regularly subjected to significant weight bearing forces. The work over years put his spine in a vulnerable condition resulting in the acute problem the plaintiff suffered when he stooped to pick up the oranges spilled on the ground on 7 March 1997.
In the statement of claim at par 18 (as amended) the plaintiff sets out particulars of breach of duty as follows:
"(a)Requiring the plaintiff to pick fruit from a cherry picker utilising the aforesaid canvas bag for significant periods of time.
(b)Requiring the plaintiff to pick fruit from a cherry picker utilising the aforesaid canvas bag for continuous periods of time.
(c)Failing to provide the plaintiff with a canvas bag or other apparatus whereby the plaintiff, in the course of picking fruit, would not be subject to constant weight bearing forces/stress upon his lower back.
(d)Requiring the plaintiff to pick fruit from a cherry picker utilising the aforesaid canvas bag so that the plaintiff, when emptying the said canvas bag, would not be exposed to bearing up to 23 kg of the weight of the fruit therein.
(e)Failing to heed the numerous advices of the plaintiff that the picking of fruit using a cherry picker and the aforesaid canvas bag required the plaintiff, when emptying the bag, to bear up to 23 kg of the contents thereof;
(f)Failing to heed the numerous advices of the plaintiff that the picking of fruit utilising the aforesaid bag frequently caused the plaintiff to have a sore and/or aching back."
At trial the issues pursued were those contained in par (d) and par (e) which concern the operation of the cherry picker. The other alleged breaches of duty fell away as the matter proceeded.
Each of the parties to the action adduced expert ergonomic evidence concerning aspects of the plaintiff's duties in operating the cherry picker. Although most of the facts upon which the two expert opinions were based were agreed, there was a lack of consensus about what the cherry picker operator was required to do with a full bag and its ropes immediately prior to causing the fruit to empty into the bin. The amount of force required to free the ropes in order to open the bottom of the bag differed depending on how the ropes were freed from the U brackets. The plaintiff's case was that the force required was equivalent to a lift of 23 kg. The defendant's case alleged a lift of 15 kg was all that was needed. The defendant further maintained that such a lift was reasonable, unavoidable and in any event could not have contributed to the plaintiff's injury. I shall now deal with this ergonomic evidence.

Expert ergonomic evidence

There are apparently only five persons in Western Australia who have expertise in ergonomics and two of them gave evidence in this case. Dr Ian Gibson who holds, amongst other qualifications, a PhD in human physiology, gave evidence for the plaintiff. (Curriculum Vitae attached to Exhibit M1). Ms Jenni Miller who has a Masters Degree of Science (ergonomics) amongst other qualifications gave evidence on behalf of the defendant. (Qualifications set out in Exhibit N).
Dr Gibson produced two reports the first dated 21 December 1999 (Exhibit M1), and the second a year later being 19 December 2000.
Dr Gibson gave evidence that the information upon which he relied for his reports relating to job description came primarily from the plaintiff. He indicated early in his evidence that he felt the bag and harness provided for the plaintiff when picking fruit whilst standing on the ground was a well designed piece of equipment.
Dr Gibson focussed more upon aspects relating to the work requirements of operating the cherry picker and picking fruit at height. In order to assess the matter he attended at the premises operated by the defendant, being the Fawcett Orchards "for the purpose of evaluating Mr Staines' equipment and system of work" (sic). Dr Gibson was also provided with other information that he describes in his report.
In par 4.3 of his report, Exhibit M1, Dr Gibson explains his calculations concerning the physical aspects of the plaintiff's work thus:
"For my calculations I am working on a figure of 100 kg for a bag full of oranges, based on information supplied that the bag holds enough to fill five cases of oranges, nominally 20 kg per case. The critical figure is how much of the 100 kg is supported by the operator as he unhitches the ropes and lowers the bag into the bin. I did not attempt to measure this weight whilst in the field. If the bag were a rigid container with a hinged door at the bottom, then the calculation would be simple, providing the dimensions of the door and the position of the hinge were known. However, the geometry of the bag makes calculations of loads and forces more difficult, and friction between the fruit and the wall of the bag also will have some effect."
To solve the problem Dr Gibson constructed a scaled down version of his interpretation of the field situation. He did this in his workshop. He filled the leg of an old pair of long trousers with vegetables and fruit to a weight of 6 kg. He then attempted to calculate the proportion of that weight which would be borne by some equivalent system of retaining the items in the trouser leg and arrived at a figure of about 40 per cent of the weight of the trouser leg's contents. He then asserted that this was a reasonable approximation of the percentage of the total weight that would be borne by the operator of the bag in question in this case. In other words his view was that the plaintiff "could have been supporting weights close to 40 kg regularly during the working day for some eight months of the year for the period 1992 to 1997".
Perhaps not surprisingly Dr Gibson reached a view that the plaintiff's manual handling tasks, as assessed by him, were physically demanding and exposed him to risk of incurring injury to the lower and upper back or shoulders. Dr Gibson annexed a number of useful photographs to his report which were attached and numbered 1‑14.
During the following year, 2000, Dr Gibson was sent a copy of the report of Ms Jenni Miller. Ms Miller's approach to measurement of the load that would be borne by the operator of the cherry picker when handling the full bag of fruit was very different to that of Dr Gibson and resulted in a calculation of the weight being of the order of only 15 kg. Ms Miller indicates in her report that she measured the force required to lift the last knot in the rope (attached to the bottom of the bag) over the U brackets. The weight was measured using a spring balance attached to the fork of a tractor positioned above the cherry picker bucket. Ms Miller repeated the measurement on three separate occasions and arrived at the conclusion that the upward force required to lift the knot over the U bracket was 15 kg. I understand this related to the force required to lift both ropes, not just one. Ms Miller never actually measured the force required to hold the bottom of the full bag of fruit closed by holding the ropes that secured it but her view was that it would not have been more than 15 kg. Ms Miller's report was Exhibit N.
After perusing Ms Miller's report Dr Gibson prepared his second report which was Exhibit M2. Dr Gibson changed his approach having seen Ms Miller's report and described it in par 2.2 of his report as follows:
"2.I tied a bar to the two ropes holding the bag closed and fitted a recording spring balance to the centre of the bar, so that a horizontal force applied to the balance would be transmitted to the two ropes equally. I fastened a strap around my waist and attached it to the other end of the balance.
3.I then applied by body weight in a rearwards direction to free the knots from the U shaped brackets, and recorded a figure of 23 kg. This force was experienced only briefly, but I believe it is more representative of the peak force exerted by the worker, than that exerted when lowering the ropes to empty the bag.
4.Repeating the measurement procedure described in Ms Miller's report, in which the ropes were attached to the spring balance suspended from the fork of a tractor raised above the cage of the cherry picker, gave a value of 15 kg, which is in agreement with that obtained by Ms Miller."
I note that Dr Gibson refers to both ropes in the last paragraph.
Immediately it can be seen that Dr Gibson's initial assessment of the degree of force with which the plaintiff had to deal greatly exceeded the reality. Indeed Dr Gibson said as much in par 3.1 of his second report.
Ms Jenni Miller provided notice of her expert evidence in the form of a summary of its substance which was prepared by the defendant's solicitors and became Exhibit N. Ms Miller describes the procedure of use of the cherry picker in par 4 and par 5 of that report and then, in par 6 where she highlights the desirable features of the system, she states as follows:
"The use of ropes to release the fruit from a full fruit bag ensures the picker can remain a relatively upright posture and does not have to take the full weight of the fruit bag plus fruit as the fruit is released. The force required to lift the knot over the U shaped bracket at the point of emptying a full fruit bag was measured using a spring balance attached to the fork of a tractor. The measurement was repeated three times. The upward force required to lift the knot over the U shaped bracket was 15 kg. This was sustained only momentarily."
From all of the above it can be seen that Dr Gibson's initial approach to the task of calculating the force required to disconnect the ropes holding the fruit bag shut when it is full was flawed in its concept. However, it is also apparent that both experts agree that "the upward force required to lift the knot over the U shaped bracket was 15 kg" (obviously referring to both ropes).
However the way the case evolved during the litigation it was asserted for the plaintiff that the critical moment in terms of the weight to be borne by the cherry picker operator was not so much the lifting of the knot over that U bracket but what was required in the immediately following period. The plaintiff points to two sets of photographs that depict this activity and initially Exhibit A photographs 5 and 6 are helpful. After lifting the knot out of the U bracket in photograph 5 the operator seems to move forward and bend from the waist in order to unravel the bottom of the full fruit bag tube thus enabling fruit to roll or fall out of the bag into the bin. It can be seen from those photographs that on the occasions they were taken the operator is bending forward from the waist with his arm bearing load significantly forward of and away from his body. Indeed, these photographs 5 and 6 are also annexed to Exhibit N, Ms Miller's report.
Photographs of the plaintiff carrying out these manoeuvres are attached to Exhibit M1, being the first report of Dr Gibson. Photographs 9 and 10 show the plaintiff, with an empty bag, demonstrating what he says he was required to do in lifting the knot off the U bracket and then bending forward, holding both the ropes at their ends, to unravel the bottom of the tube bag. Photographs 12 and 13 depict another worker on another occasion doing roughly the same sort of activity.
I think photographs 9 and 10, particularly 10, being attached to Exhibit M1 are helpful on the point. Exhibit A6 is also helpful.
There can be no doubt on looking at these photographs that the operator is carrying a load through his hands, arms and shoulders which is some distance away from his body. It appeared to be common ground between the two experts that that load is in the order of a maximum weight of 15 kg.
The process of emptying needs to be noted. It was not the case, as might be suggested by Exhibit A6, that the operator simply let the ropes of the bag go allowing fruit to cascade unimpeded into the bin. According to the plaintiff, there was a need to protect fruit from bruising. Typically what would happen is that the bag would be opened and some fruit would be let out. Then the bucket would be raised slightly by the operator so as to make space for further fruit to come out of the bag. The operator leant forward and jiggled with the bag and the process of emptying the bag took place over a period of about 30 seconds. Obviously as the bag emptied the weight of dealing with the ropes attached to its end lessened.

On the face of it, it seemed that Jenni Miller assumed the bag would just be let go to empty. She assumed there was only one occasion on each emptying that the bag was held by the ends of the rope distant from the body and then it was let go. This does not appear to be the way the bag was emptied in fact.
Amongst all of the evidence considered by the two experts the critical issue seems to be the significance of the plaintiff being required 20 – 25 times a day, according to him, to engage in this activity in the positions depicted in photograph 10 attached to Exhibit M1 and photograph 6 attached to Exhibit N otherwise known as Exhibit A6.
In par 3.5 and par 3.6 of his report Exhibit M2 Dr Gibson states:
"3.5I believe that the need to support a load of about 15 kg on a regular daily basis, even if sustained for only a short period of time on each occasion, will present a risk of injury especially when the trunk is in a fully flexed position.
3.6I disagree with Ms Miller's conclusion (par 20) that the system of work did not expose Mr Staines to a significant risk of sustaining a musculo skeletal injury to the back or shoulders, since she has not taken posture or task frequency into account."
Dr Gibson also felt that the use of longer ropes would have reduced the risk of injury to Mr Staines by enabling him to adopt a more upright posture when doing the act depicted (par 3.4).
Ms Miller's opinion was that the system of work referred to did not expose the plaintiff to a significant risk of sustaining a musculo skeletal injury to the back or shoulders. She placed considerable reliance on the fact that the plaintiff had a large abdomen which would have been pressing against the top front edge of the bucket when the plaintiff was leaning over thereby greatly shortening the lever and greatly reducing whatever strain there would have been on his spine. In other words, rather than using his spine, the plaintiff would have been using his stomach.
Some support for this view is seen in photographs 9 and 10 attached to Exhibit M1. Certainly the plaintiff was a large man and I can see the point that Ms Miller makes.
Equally, however, it is plain that if the ropes were longer then the operator would not need to lean over the way he does as depicted in photograph Exhibit M1(10) or Exhibit A6.
Apparently the reason why ropes were not made longer is because they could trail along underneath the bag when the cherry picker was moving and get jammed under the wheels or tangled in other ways. Its difficult to see how that would be a substantial risk considering it appears that an increase in length of no more than a metre, and probably less, is all that would have been required.
Dr Gibson as a witness was candid. He seemed to be fair and independent. His comment generally about the system of work was that clearly it was not the worst system that he had seen but it was sufficiently risky to deserve attention. His view generally was that Ms Miller ignored the postural factors in the load bearing being analysed. In spite of defence counsel's gentle ridicule of his initial attempt at scientific analysis, Dr Gibson took it well and accepted the criticism. Significantly he agrees with the rough estimate of weight put forward by Ms Miller. His view however is that the work is heavier and more difficult when one takes account of the postural factor and he measured the force required to release the fruit in a different way.
With respect to Ms Miller, she also was an impressive witness. She approached the matter in a more scientific way initially. Her view was that there was not enough force to make the posture of the plaintiff a risk factor in the operation. She did have the mistaken impression that it was only momentary holding of the 15 kg weight that was required before release. She did not seem to appreciate the fact that it took up to 30 seconds for a bag to be emptied and that the operator did not just simply let go of the ropes but held them and moved the ropes about controlling the outflow of fruit.
Dr Gibson's lately developed method of measuring the weight taken by the operator at the moment of emptying a full bag, (that method using a set up that requires what seemed to be a horizontal application of force), appears to me to be less likely to result in an accurate estimate of weight than the method utilised by Ms Miller.
The operating procedure to free the knots on the rope required a lifting force, not a horizontal pulling force. In any event, it is not the force required to free the knots that is of interest but the downward force caused by the weight of the fruit against the end fold in the bag after the knots are freed and the bag is about to be allowed to open and empty its contents.
I prefer the evidence of Ms Miller to Dr Gibson so far as it went. Based upon the material provided to her, and within its limitations, Ms Miller's view was that there was nothing from an ergonomic perspective that was unsafe in the system employed by the defendant for operation of its cherry picker in the picking and unloading of fruit.
However, as I have mentioned, although not specifically pleaded, the case evolved into a consideration of the issue of the posture of the operator whilst bearing a load of 15 kg and opening the end of the tube bag. It was asserted on behalf of the plaintiff that the posture was unsafe and was required because the ropes attached to the bag were too short. On behalf of the defendant it was asserted the ropes were long enough to do the job and could not be any longer because of safety reasons.
As to the issue of the lengths of the ropes attached to the bag the plaintiff gave evidence that he had complained on a number of occasions to one or other of his two employers (office holders in the defendant company ‑ father and son) that the ropes were too short and he was having problems coping. The plaintiff said that he had asked for the ropes to be replaced but his pleas fell on deaf ears. He made a request on quite a few occasions. He said that a fellow employee, one Davey Roley, was present during some of these conversations.
The plaintiff was challenged concerning this evidence in cross‑examination. He stated that he considered the length of the ropes attached to the bag to be a major problem and a major cause of his disability. He could not explain why the issue of the lengths of the ropes attached to the bag was not referred to in the pleadings or interrogatories but he maintained he had told his solicitors, "as far as he knew".
When pressed with the suggestion that his evidence concerning the significance of the lengths of the ropes was, in effect, recently fabricated, the plaintiff exhibited signs of considerable discomfort in the witness box. He became uncertain, less confident and he lacked conviction. I hesitate to accept his evidence on the point. Generally speaking I had a favourable impression of the plaintiff as a witness and throughout his evidence relating to other aspects I had no reason to disbelieve him. He seemed a pleasant earnest man, likeable and one who has no doubt had a miserable time since he injured his back. He was an excellent worker and there is no doubt whatsoever that he has suffered.
This is not a case where credibility and reliability of the plaintiff's evidence is really seriously contested save for his evidence on the issue of concerns he says he raised about the length of the ropes attached to the bag.
As I have mentioned Davey Roley was a fellow employee at relevant times who was said by the plaintiff to have witnessed conversations and he was called to give evidence. I shall briefly refer to Mr Roley's evidence.

Davey Roley

David Roley is now a turf farmer who worked with the plaintiff for the defendant between 1999 and 1994. He did outside work, fruit picking, spraying and mowing. He was friendly with the plaintiff both at work and socially. He worked with the plaintiff mainly as a ground picker but he also used the cherry picker. If he got too far ahead as a ground picker he would stop doing that and go and get the other cherry picker to enable the plaintiff to catch up. If this was not done then the ground picker got ahead of the cherry picker and had to walk too far back to the bins to empty his bag.
Mr Roley said that Geoff Fawcett gave him brief instruction on how to use the machine. He said that the plaintiff used the cherry picker 90 – 95 per cent of the time; more often than anyone else.
Mr Roley said that he could recall something being said about the bag and the ropes being too short. He said that they had got old and bits had broken off and therefore they had got shorter. He said that he thought the conversation was with Geoff Fawcett or Ron Fawcett. He was not confident about this in his evidence. He said he could not recall the date. In his cross‑examination he estimated that it was in about 1992. He said it was on an ordinary picking day. He said following a complaint about the ropes being too short and that they were made of cotton and they tended to fray and break, the ropes were replaced with nylon ropes which he said were longer. Later he said the nylon ropes were simply made to the same length that the cotton ropes had been before they started to shorten through fraying and breaking.
Mr Roley said that he would occasionally get a sore back from leaning over with the rope. He did not recall ever making a complaint about this. He said one had to lean forward to let out the fruit as you were going up. In other words the operator caused the bucket to go upwards as he was letting the fruit out slowly.
Mr Roley said that when the complaint was made about the ropes they were changed from cotton to nylon ropes but then they were replaced at the same length as the cotton ropes were originally. He said that the system worked better.
It is to be noted that the ropes attached to the bags as depicted in the photographs referred to earlier all appear to be of the orange nylon variety and their length is there to be seen.

Counsel's submissions relating to rope

It was submitted on behalf of the defendant that the evidence of Mr Roley relating to the ropes suggests that the plaintiff was untruthful in his account of his complaint about the matter. I think that is putting it a little strongly but having regard to Mr Roley's evidence, which I had no reason to reject, my disquiet concerning the plaintiff's reliability on the point remains. There may well have been issues raised concerning the need to replace ropes that had become tattered and broken but I am not satisfied that the plaintiff ever complained that the ropes were too short.
Further support for that view can be found in the absence of any reference in the medical reports to the plaintiff complaining of low back pain. In the period following his mishap on 7 March 1997, when he suffered the disabling pain having stooped to pick up oranges, the plaintiff saw a number of medical practitioners. Reading the reports of those practitioners which are contained in a large book which was Exhibit H it can be seen that no medical practitioner refers to any difficulties being caused to the plaintiff by reason of having to bend over because of short ropes and this is obviously because the plaintiff never raised the matter. The report of Prof Dennis Paterson dated 15 September 1997, reproduced in Exhibit H, pp 141‑151, at p 147 and following emphasises the lack of prior low back symptoms being reported by the plaintiff.
I have already commented upon the absence of reference in the pleadings and interrogatories to the issue of the length of ropes. Further, as counsel pointed out, the plaintiff's wife gave no evidence of complaints being made to her.
I am not satisfied that the plaintiff ever complained to his employer about the lengths of the ropes, nor that he experienced discomfort in his low back, or anywhere, as a result of working with the cherry picker using the ropes that were provided.
The defendant company being the employer of the plaintiff throughout the relevant period had a duty to take reasonable care for the safety of its employee, the plaintiff in all the circumstances of the case. To formulate that duty in another way, the defendant is under a duty to carry on its operations so as not to subject the plaintiff to unnecessary risk of injury. The duty is to take reasonable care but there is no requirement that an employer guarantee its employee be protected from all danger whatsoever.
The burden of proof is on the plaintiff to show by direct evidence or demonstrate that it can be inferred that his employer the defendant has failed to take reasonable steps in the circumstances which would have protected the plaintiff from the risk of injury. In Raimondo v State of South Australia (1979) 23 ALR 513 Mason J in the High Court put it as follows at 518:
"…the employer will not be liable unless it appears that he has failed to take measures, or adopt means, which were reasonably open to him and which would have eliminated or significantly reduced the element of danger… And it has been held that:
(a)the degree of risk of an accident occurring;
(b)the degree of injury likely to result from such an accident; and
(c)the nature and extent of the remedial action suggested to be taken are all elements to be considered in deciding whether the employer is in breach of a duty to take reasonable care…"
The original view of Dr Gibson was quite clearly that the defendant's system was fraught with danger for the plaintiff requiring, as he thought it did, that the plaintiff regularly bear weights in the region of 40 kg in the course of emptying fruit from a bag attached to the cherry picker. That was the view of Dr Gibson in his first report, Exhibit M1, which was dated 21 December 1999. It is obvious that the plaintiff commenced proceedings in September 1999 fortified by Dr Gibson's original view. And quite clearly it is fair to say, I believe, that had the assumptions Dr Gibson made been supported by the evidence then the plaintiff's claim would have a greatly strengthened attraction.
Ms Jenni Miller's view of the matter was provided in about November 2000 and I have already dealt with the effect her opinion had upon Dr Gibson's views. The weights about which Ms Miller spoke were far less than 40 kg. Dr Gibson was forced to concede not only that the weight Ms Miller proceeded upon was accurate (namely 15 kg) but also to abandon his original approach and adopt an alternative method which, in any event, resulted in an estimate of weight just over half that which he originally assumed to be the case. Thus in his evidence Dr Gibson expressed himself in terms that the system of work was "not the worst" he had encountered but it was "sufficiently serious to deserve attention". He also spoke, in cross‑examination, of the weight required to be lifted by the operator of the bag as being "quite heavy". Generally speaking he had to tone down his view on the system of work. I also suspect he was anxious to "save face".

Findings on allegations of breach

I have already explained why I prefer the view of Ms Jenni Miller to the effect that, from her perspective as an expert ergonomist, there were no safety aspects of the defendant's system of work that concerned her. Of course it is possible she has skimmed over, or not sufficiently focused upon, the postural requirements of emptying the cherry picker fruit bag as shown in the photographs to which I have referred. Be that as it may I am not satisfied on the balance of probabilities that the defendant has breached its duty to take reasonable care for the safety of the plaintiff. I am not persuaded that an operator of the cherry picker emptying the bag and releasing the ropes as I have described is exposed to an unnecessary risk of injury. There is a small possibility of injury in any of this sort of activity but, as I have mentioned, the duty on an employer does not extend to guarding against every conceivable risk however remote or fanciful.
Counsel for the plaintiff put his case on the basis that the system was "clearly unsafe" in that it required the plaintiff to "constantly weight bear" although "admittedly of short duration". He relied upon Dr Gibson's estimate of 23 kg being required to be lifted in a pulling back motion and 15 kg "in a stooped position". Counsel asserted that the remedy was "clear" and that longer ropes should have been provided.
Put shortly the plaintiff has not proved his case that the defendant breached its duty to take reasonable care for his safety. I am not prepared to give the evidence of Dr Gibson that the system was "sufficiently risky to warrant intervention" the weight that counsel advocates in the light of the witness's concession that his initial approach was flawed.

Causation

Given that the plaintiff has failed to prove negligence then his claim must fail but in the event that I am in error in reaching that view then it is appropriate that I consider the question of whether the plaintiff has proved that the defendant's breach, assuming there was one, has caused him injury. The plaintiff has the burden of proof that his back injury sustained on 7 March 1997 was caused by the negligence of the defendant. The burden of proof of causation is upon the plaintiff on the balance of probabilities.
The plaintiff's counsel in his submissions referred to and relied on the decision of the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1 at p 5 and p 6. In that case the plaintiff contracted dermatitis allegedly as a result of his employment with the defendant at a brick works. Lord Wilberforce at p 6 said:
"My Lords, I agree with the Judge below to the extent that merely to show that a breach of duty increases the risk of harm is not, in abstracto, enough to enable the pursuer to succeed. He might, on this basis, still be met by successful defences. Thus, it was open to the respondents, while admitting or being unable to contest that their failure had increased the risk, to prove, if they could, as they tried to do, that the appellant's dermatitis was, non‑occupational.
But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary."
Lord Wilberforce went on to conclude at p 7 that:
"…in the absence of proof that the culpable condition had, in the result, no effect, the employers should be liable for an injury squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default."
McGhee was followed in Wilsher v Essex Area Health Authority [1988] 2 WLR 557. According to counsel for the plaintiff, negligence having been proven, the onus is on the defendant to show that the plaintiff's injury did not result from the breach of duty. In establishing this counsel asserted, following McGhee, that:
"Where there are possible competing causes it is sufficient if the evidence would support an inference that the defendant's negligence ‘materially contributed' to the plaintiff's injury."
there citing Chance v Alcoa of Australia Limited (1990) A Tort Rep 81‑017.
Counsel for the defendant asserted that it was incumbent upon the plaintiff to prove that the injuries he had sustained were caused by the defendant's negligence and not for some other reason. He asserted that the plaintiff bore the onus of proving causation and referred to the decision of Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 416‑7 and Schellenberg v Tunnel Holdings Pty Ltd (2000) 170 ALR 594 at 623.
Counsel then referred to Jones v Dunkel (1959) 101 CLR 298 at 304‑5 and West v Government Insurance Office (NSW) (1981) 148 CLR 62 at 65‑66 for the proposition that:
"If a plaintiff does no more than adduce evidence which gives rise to conflicting inferences of equal degree of probability as to the cause of his problems, as is the case here, so that the choice between them is merely a matter of conjecture, or requires a court to choose between guesses, or where possibilities are not unlimited, then it is not open to choose one guess as more likely than the others."
Counsel for the plaintiff relied upon the evidence of Mr Robin Jackson, consultant orthopaedic surgeon, who wrote a report dated 2 December 2000 which is reproduced in Exhibit H at pp 23‑32 inclusive. On p 32 Mr Jackson states:
"Again you ask whether his lumbar degenerative spondylosis arose prior to 1990. This is difficult to determine, but to some extent it must be a product of the employment duties from 1990 to 1997. Mr Staines did of course undertake heavy manual work prior to 1990 which would have contributed to the degenerative arthritic change. Some of his reduced earning capacity therefore must be attributed to degenerative change in his back which would have occurred between 1990 and 1997."
Counsel also relied upon the report of Dr Brian Dare, specialist in occupational medicine whose reports appear in Exhibit H commencing at p 33. In his report dated 29 November 2000, at p 5, (p 37 of the book), Dr Dare states the following:
"With regard to whether his incapacity to work is a consequence of his work at Fawcett Orchards from 1990 to 1997 and related to his two specific injuries which occurred in December 1994 and March 1997, is unclear. (sic) I consider the fall in December 1994 would have resulted in an acute injury but Mr Staines appeared to recover completely from this injury. Unfortunately it appears he has continued to suffer ongoing symptoms since his injury in March 1997.
I consider Mr Staines presents with an overall picture of significant degenerative disease of his lumbar spine, which has been aggravated by incidents which occurred whilst working as a fruit picker, with the most significant incidents occurring in December 1994 and March 1997.
Overall I consider the type of work Mr Staines performed would have contributed to his degenerative disease. In my opinion, work was one of the many factors which would have contributed to his degenerative spine.
I am unable to put a definite figure on the degree to which work has contributed to his current disability."
In his second report dated 4 January 2001 reproduced at p 41 of Exhibit H Dr Dare states:
"Mr Staines has been performing heavy manual handling tasks all his working life and I would expect him to have evidence of degenerative changes in his spine demonstrated on x‑ray prior to 1990. However, I am not aware of any x‑rays being performed prior to 1997, or if they had been performed no reports have been made available to me.
It is therefore not possible to determine what degenerative changes occurred before 1990, prior to September 1993 and post September 1993. However, what is known is that on x‑rays performed in 1997 there was significant evidence of degenerative disease of his lumbar spine. The changes evident on the x‑rays of 1997 suggest that the degeneration had been present for some time and because of this Mr Staines would have been more susceptible to injury as a result of the pre‑existing degenerative changes."

Dr Dare said in his report that he felt the injury sustained by the plaintiff in December 1994 was "of a relatively minor nature".
Dr Dare concluded his remarks as follows:
"Mr Staines does have significant degenerative disease of his lumbar spine and his employment between 1990 and 1997 would have contributed, to some degree, to this degeneration, but certainly not wholly.
It is my view that his degenerative disease does preclude him from employment as a fruit picker, but, as stated in my original report, it is not wholly a product of his employment with Fawcett Orchards from 1990 to 1997."
Counsel for the defendant put his submissions relating to the evidence of causation in the following terms:
"None of the doctors was able to say with any confidence when the degenerative condition began or how much it had progressed whilst the plaintiff was working for the defendant with the result that the Court is left with conflicting inferences of equal degree of probability so that the choice between them requires the Court to choose between guesses. For example, was the plaintiff's degenerative condition caused by picking and emptying bags of fruit, or was it caused by using his bobcat each week between 1993 and 1997, or was it caused by his previous work driving bulldozers, back hoes and front end loaders, or was it caused by working in the north west on cattle stations and in gold mines…
There is no or insufficient evidence on the balance of probabilities to support the plaintiff's allegation that the system of work in which he was engaged by the defendant caused the acute onset of pain on 7 March 1997 and the plaintiff's subsequent disability. Indeed, the plaintiff's own evidence and his version of events to all of the doctors points overwhelmingly to the incident on 7 March of picking up the oranges as causing his injuries and not any preceding act or omission on the part of the defendant."

The plaintiff's work history

The plaintiff was born on 2 November 1957 in Kojonup. He was nearly 44 years of age at trial.
The plaintiff attended high school to age 15 whereupon he entered the workforce commencing employment at a garage and then performing labouring work in Pinjarra.
In the following years the plaintiff worked on cattle stations up north as a general hand, he worked for Westrail, he operated a back hoe, he was a labourer for a company named Carpenters, and he worked in a gold mine in Telfer in about 1975. He did various sorts of work including driving tractors, operating heavy machinery, seeding and mustering of cattle from time to time. He had considerable experience driving bulldozers and front end loaders up until 1988. From 1988 for 2 years he worked for Wesfarmers at Wesfarmers/Dupont and Simms Metal in Shay Gap and then commenced employment with the defendant in about March 1990 as an orchard hand and fruit picker.
Obviously the plaintiff's work history is one of heavy physical work and a significant amount of heavy machine operation. Notably therefore the plaintiff has been extensively engaged in operations requiring him to sit in a cab, operating a heavy machine, and often being exposed to vibration.
Indeed during the period of his employment with the defendant the plaintiff, in about March 1993, started up his own bobcat business. He acquired a truck and bobcat and had a contract at a chicken farm processing manure. He would drive his bobcat in his spare time and especially on weekends.
In addition to his history of heavy work in the years prior to the commencement of his employment with the defendant in 1990, another physical factor that has relevance to a consideration of the plaintiff's presentation is his obesity. For some 20 years or so he has varied between 105 to 108 kg but at the time of trial he was 120 kg. He has always been a big man although, having regard to his height of about 170‑175 cm, he could not be described as tall. The plaintiff also suffered from a variety of other physical ailments which are not relevant specifically to the question of the causation of the degeneration of his spine.
Consequently, it appears on the evidence that the cause of the degeneration of the plaintiff's spine is multifactorial being in part attributed to his long history of heavy work, especially his work with heavy machinery, his work for the defendant and his obesity. As to the latter, as I have indicated, he was some 115‑120 kg at the time of trial. Some of that weight was gained by the plaintiff since the accident. According to Dr Buters' report, Exhibit H .53, the plaintiff was 115 kg prior to suffering symptoms in March 1997 but by December 2000 he was 122 kg. According to Dr Buters the plaintiff's ideal weight would be between 70 and 75 kg and thus he was approximately 40‑50 kg overweight.
Not only is there the issue of the extent to which the plaintiff's heavy work history and obesity had upon the rate of degeneration of his spine, but the plaintiff also suffered from other significant medical conditions that not only impacted upon his enjoyment of life but also his earning capacity. The plaintiff suffered from degenerative osteoarthritis in both knees, a condition which is also exacerbated by his obesity. He also suffered from gout, hypertension and asthma. As to the asthma it was apparently never severe enough to intrude into his working capacity.
Given the extent of what might be described as the non‑tortious difficulties suffered by the plaintiff then it is a very difficult task indeed to attribute specific loss to that amount of spinal degeneration that could be blamed upon the defendant's allegedly unsafe system of work. Obviously this is a case of competing concurrent factors, many of them non‑tortious, impacting upon the degenerative condition of the plaintiff. The question that needs to be answered is whether the plaintiff's present symptoms, and those which manifested themselves on and after 7 March 1997, were contributed to by degeneration of his spine for which the defendant is responsible. In circumstances where there are a variety of concurrent competing non‑tortious factors at play the defendant employer has the burden of showing the relationship between the non‑tortious concurrent factors and the plaintiff's disability, and that relationship needs to be explained with reasonable precision. (See Western Australia v Watson [1990] WAR 248 at 302‑311 where Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 are discussed).
In this case it seems to me that the defendant has made a reasonable attempt to discharge that burden with reasonable precision. The medical witnesses who gave evidence in the case, especially Mr R V Jackson, Dr Dare and Dr Buters, gave opinions on the issue.
Dr Buters, the plaintiff's general practitioner, was cross‑examined about his remarks contained in his report dated 8 December 2000 reproduced at Exhibit H p 53, in the middle, and he expressed the opinion that the symptoms the plaintiff suffered from his back contributed to an extent of 60 per cent as a causative proportion of his loss of earning capacity. He attributed 30 per cent to the plaintiff's osteoarthritis in the knee and 10 per cent to other factors.
Orthopaedic surgeon, Mr R Jackson whose reports appear at Exhibit H pp 8‑32) was of the opinion that 50 per cent of the plaintiff's disabilities were attributable to the aggravation of his pre‑existing degenerative change and 50 per cent was caused by the exacerbation of his symptoms on 7 March.
Dr Dare's opinion was to the effect that about 60 per cent of the plaintiff's disabilities were attributable to his pre‑existing spinal condition and the balance was the result of the combined effect of his obesity, his hypertension, his osteoarthritis and his gout.
It is quite clear that the plaintiff suffers from a variety of ailments many of which impact upon his quality of life and his earning capacity and most of which are non‑tortious and non‑compensable. I am satisfied that other non‑tortious factors have been significant in the plaintiff's overall picture and having regard to the medical evidence I think that a fair assumption would be that non‑tortious factors contribute to the amount of 50 per cent of the plaintiff's residual disability.
The medical evidence emphasised the degenerative effect that the plaintiff's work with heavy machinery prior to 1990 would have had upon his spine and especially the effect of constant vibration. The degree of heavy work performed by the plaintiff and the effect that work had upon the rate of degeneration of the plaintiff's spine was substantial. For the purpose of the exercise however it is necessary to formulate some view about the extent to which the plaintiff's duties with the defendant also contributed to that degeneration of the spine. On balance I think that 50 per cent is a fair assessment of that.
My view therefore is that the degree of degeneration of the plaintiff's spine which has produced the symptoms upon which the plaintiff sues would be, to the extent of 50 per cent, the fault of the defendant.
But in addition thereto the role that the plaintiff's degenerative spine had in his loss of capacity to earn income is also to the extent of 50 per cent. On one view therefore the plaintiff is entitled to 25 per cent of the assessment.

Assessment of damages

In spite of reaching the conclusion that the plaintiff's claim must fail it is appropriate that I proceed to assess damages in case my decision on liability is overturned on appeal.
As I have mentioned earlier in these reasons the plaintiff suffered disabling back pain on 7 March 1997 having merely bent over in the course of his employment to pick up some oranges that had spilt onto the ground.
It does not appear that the plaintiff suffered any specific injury as a result of this incident but investigative procedures reveal that the plaintiff's spine was in a state of significant degeneration. The incident that triggered symptoms on 7 March 1997 was not one upon which the plaintiff could sue. In his statement of claim the plaintiff pleads the facts which he says forms the basis of his assertion that aspects of the system of work were dangerous and then, at par 16, pleads as follows:
"As a result of the plaintiff picking fruit utilising the said canvas bags described in par 12 hereof, from the commencement of his said employment until and including 7 March 1997, the plaintiff suffered injury to his lower back."
The plaintiff then particularises his allegations of breach by his employer of his duty to take reasonable care for the safety of his employee by setting out various aspects relating to his duties of picking fruit and then sets out particulars of injuries at par 19 which are as follows:
"(a)Injury to the muscles, ligaments, tendons and other soft tissues of the lumbar spine;
(b)Injury to the muscles, ligaments, tendons and other soft tissues of the thoracic spine.
(c)Degenerative and/or accelerated degenerative changes to the discs of the lumbar spine, particularly at L3/4, L4/5 and L5/S1 levels;
(d)Right paracentral analysis disruption associated with a disc herniation at the L4/5 level;
(e)Calcified left postero‑lateral disc herniation with compression of the left S1 nerve root at the L5/S1 level;
(f) Injury to the facet joints at L4/5."
The plaintiff attended upon Dr I A Buters, a general practitioner at the Byford Medical Centre, who wrote a report dated 8 December 2000 contained in Exhibit H commencing at p 52. In par 3 Dr Buters describes his involvement with the plaintiff in the following terms:
"Mr Clive Staines first attended myself at the Byford Medical Centre on 7 March 1997 with his back injury, which had occurred a day earlier on 6 March 1997. As a result of his back injury a lumbar sacral spine x‑ray was ordered and this revealed significant L5/S1 disc degeneration and a reduction in disc height. These x‑ray changes would have been unlikely to occur as a result of bending over to pick up a piece of fruit. It is much more probable that these x‑ray changes were as a result of pre‑existing degenerative changes in his lower back. It is more likely the bending over contributed to causing a flare‑up of this condition."

The assessment for general damages

The plaintiff has had pain and discomfort arising from his spinal difficulties since 7 March 1997 which is in excess of 4½ years. He regularly takes medication including Panadeine Forte and Voltaren. Occasionally he will take 12‑14 pills per day. He also undergoes therapy in a swimming pool. He wears a moulded back brace and a kidney belt at all times. He has been prevented from pursuing his pre‑accident leisure activities including four wheel driving, working on his parent's property, push biking and general leisure and social activities. He now spends time sitting on the invalid jetty in Mandurah. The plaintiff has two children aged 7½ and 3½ and he is not able to interact with them in the normal way a father does.
The plaintiff says that his back has improved with the passage of time but that he still is required to lead a sedate lifestyle. He is not able to chop wood save for kindling. He cannot use a chainsaw. He has to use a ride‑on mower. He is only able to drive short distances. He spends a lot of time sitting around at home and feeling miserable.
There can be no doubt the plaintiff has had recurring episodes of back pain since March 1997. Considering the extent of the spinal degeneration it does not look like he is going to have much relief of his symptoms in the future. The plaintiff impressed as a pleasant fellow, who was earnest in his evidence. He is significantly restricted in his activities as a result of his persistent back pain. In my opinion an award of general damages for non‑economic loss in the sum of $35,000 would be fair and reasonable.

Past economic loss

In submissions by counsel for the plaintiff I was informed that the plaintiff had received some $101,657.26 exclusive of income tax by way of workers' compensation.
I was also informed that the calculations made on behalf of the plaintiff were that he would have been entitled to a total sum of $101,958.03 which results in a net past loss of approximately $300. However I was also informed that the amount to which the plaintiff was entitled was also to be determined by a basic finding of fact concerning the rates upon which the plaintiff employed. It was submitted that he was entitled to the equivalent of the casual fruit picker's award plus 40 per cent as per an agreement he had reached with Mr Fawcett, he being paid extra on the basis of his experience and the fact that he had leadership responsibility in the work place.
I am prepared to accept the plaintiff's evidence concerning the arrangements he reached with the defendant concerning the precise nature of his employment and whatever award he was to be paid under. I have some confusion concerning the precise nature of the submissions advanced on behalf of the plaintiff concerning the claim for past economic loss but suffice it to say I am favourably disposed towards the general theme of counsel's submission in that regard. If I have understood counsel correctly it is in the region of some $300‑$350. For the purposes of these reasons, and subject to any further submission I allow the sum of $300.

Past loss of superannuation

The plaintiff provided a schedule explaining a claim for $9,088.41. I am prepared to accept that calculation subject to any updating to the date of judgment.

Future economic loss

The plaintiff's claim for future economic loss was formulated, in schedule form, as follows:
"1. As from 3/9/01 the plaintiff, had he continued in employment with the defendant, would have received a net weekly income of not less than $476.11.
2. As at 3/9/01 the plaintiff born 2/11/57 is 43 years and 44 weeks (43.85 years).
3. From 3/9/01 to 65 years of age the plaintiff will live a further 21.15 years.
4. The 6% multiplier for 21 years is $632.1. The 6% multiplier for 22 years is 647 (difference 14.9). The multiplier for 21.15 years is therefore $632.1 + 2.24 = $634.34.
5. Utilising a multiplier of 634.34 to age 65 at $476.11 net per week the plaintiff's future loss is $302,015.61."
The calculations based on a weekly income of $476.11 relate to the casual rate of pay for a fruit picker under the award plus 40 per cent pursuant to an agreement with Mr Fawcett on behalf of the defendant which I have already concluded has been proven.
The difficulty with the plaintiff's claim is the fact that none of the medical evidence is to the effect that the plaintiff would have continued to work to the age of 65 but for the exacerbation of his degenerative spine.
The gist of the medical evidence is that his working life would have been significantly shorter than that, it being assessed that he may well have had to retire at 55 rather than 65, based upon his other various serious medical problems and especially his osteoarthritic knees.
Counsel for the plaintiff put his case on the basis that the plaintiff had been reduced from being an active man to a man who was totally inactive. It was pointed out that on 7 March 1997 the plaintiff was fully capable of working even though he was 110 kg in weight. He had no significant knee problems. He was able to do the job. He came from a family who were big.
Counsel submitted that as a result of the plaintiff's back injury his working capacity was demolished.
It is difficult, given the plaintiff's work history and abilities, to see what sort of employment the plaintiff could perform having regard to the catalogue of his physical problems. He might theoretically be adjudged as able to obtain a sedentary occupation but the reality is, I think, that he is most unlikely ever to succeed in that pursuit. In my view the combined effect of his degenerative spine, his osteoarthritic knees and all of his other difficulties is that, to all intents and purposes, he is totally incapacitated from gainful employment.
However he would have had major problems with his employment and his working life span, even if the rate of degeneration of his spine had not been exacerbated by the allegedly dangerous system of work put in place by the defendant.
Assuming the plaintiff would have only lasted in his employment until the age of about 55, which I think is in accordance with the evidence of Dr Dare, and applying a multiplier along the lines suggested by the plaintiff in his schedule for a period of 10 years at 6 per cent discount, this gives a multiplier of 395 multiplied by $476.11 equals $188,063.45.
I would assess future economic loss at $180,000.

Future loss of superannuation

The plaintiff's schedule puts the calculation thus:
"1. From 3/9/01 to 30.6/02 (inc), 301 days (43 weeks at $597.11 gross per week at 43 weeks = $25,675.73 at 8% = $2,054.06.
2.   From 1/7/02 the Federal Government Superannuation Guarantee Levy is 9%.
3.   For 1 year (ie 1/7/02‑30/6/03), 52.14 weeks at $597.11 gross per week = $31,133.31 at 9% = $2,802.
4.   $2,802 divided by 52.14 weeks per annum = weekly loss of $53.74.
5.   20.35 years from 1/7/02‑2/11/22 (the plaintiff 65 years of age) the multiplier is 621.83 at $53.74 = $33,417.14.
6.   Aggregate loss to age 65 $2,054.06 + $57,020.70 = $59,074.76."
I find it difficult to follow the plaintiff's schedule especially in the last paragraph but I am prepared to accept the figures contained in par 1, par 3 and par 4. Consistent with my view about future economic loss however the relevant period should be about 10 years rather than 20.35 years. Thus the multiplier is 395 multiplied by $53.74 equals $21,227.30 and adding that sum to the figures in par 1 and par 3 of the schedule gives $26,083.36.
I would allow the plaintiff $26,000 for future loss of superannuation.

Past travel expense

I would allow the sum of $259.10 for past travel expenses as claimed.

Future travel expense

A significant basis for the calculation for future travelling expenses is the frequency with which the plaintiff will be required to visit the physiotherapist in Mandurah. The plaintiff participates in hydrotherapy three times per week.
The cost of the plaintiff undergoing hydrotherapy at the physiotherapist's premises is very significant totalling some $62 per week for three sessions of treatment. There is no doubt that the hydrotherapy is beneficial to the plaintiff but he does not need to utilise a physiotherapist's swimming pool, (which has an artificially created water movement to make the patient work through the water), when a public swimming pool is available. It seems to me, consistent with the evidence, that the plaintiff having become familiar with the sorts of exercise required, would not need to attend a physiotherapist's swimming pool and pay the significant costs thereby levied but should be able to pursue treatment and self care in a public swimming pool. In a public swimming pool he would be able to move through the water without the costly artificial current needing to be provided. I do not know what all of that would cost as there appears to be a dearth of evidence precisely on the point but I am not prepared to allow the large sum of travelling expenses based, as it is, upon the assumption that the plaintiff's attendances for physiotherapy would be required three times per week, 156 times per year, until he was at least aged 65.
I would allow the plaintiff $500 for future travelling expenses which is not based upon any scientific calculation but seems to me to be more than adequate to compensate him under that head.

Future medical treatment costs

I have already dealt in part with the plaintiff's claim for costs related to hydrotherapy. The calculation advanced is based upon one session of hydrotherapy per week at a cost of $42 until the plaintiff turns 65 which amounts to a claim of $26,642.28. That seems to me to be excessive and not justifiable on the evidence.
Having closely perused the plaintiff's claim for future medical treatment costs including hydrotherapy, medication and future attendances upon the general practitioner, totalling as it does a claim for the sum of some $32,000 or so and having regard to the lack of any submissions or arguments in relation to the point but recognising that for the sake of the argument the plaintiff will have an ongoing need for these matters I am prepared to allow, as what might be called a global award, the sum of $10,000 for future medical expenses.
Thus, the total assessment for the plaintiff's claim is as follows:
Non‑economic loss  $ 35,000.00
Past economic loss  $      300.00
Past loss of superannuation                 $    9,088.41
Future economic loss  $180,000.00
Future loss of superannuation              $ 26,000.00
Past travel expenses  $      259.10
Future travel expenses  $      500.00
Future medical expenses  $ 10,000.00
$261,147.51
Accepting for the purposes of the exercise that the plaintiff has proven liability, the evidence establishes that the plaintiff's employment with the defendant was responsible for 50 per cent of the degeneration of the plaintiff's spine. I also repeat my findings that the plaintiff's spinal degeneration contributed to the extent of 50 per cent of the plaintiff's incapacity to earn income. These findings need to be reflected in the assessment. Without attempting that exercise, however, the question arises whether s 93D of the Workers' Compensation and Rehabilitation Act 1981 applies. Section 93D, which came into force in 1993 (three years after the plaintiff commenced employment with the defendant) and which was in force until about 1999 provides:
"1.Damages can only be awarded if the disability … is a serious disability.
2.A disability is a serious disability if, and only if - …
(b)the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."
No submissions were made to me whatsoever concerning this issue but I am aware that the prescribed amount during the period would have been of the order of $120,000. The effect of the legislation at the time it was in force was that unless the quantum of future pecuniary loss exceeded the prescribed amount then the plaintiff would not receive any damages in the action at all.
Bearing that in mind therefore, the application of any apportionment based upon my findings on causation to the assessment for future economic loss, (and I refer to my view that the plaintiff's incapacity is caused by his spine to the extent of 50 per cent), will result in a figure considerably less than the prescribed amount. If that is correct the plaintiff will not be entitled to receive any damages in the action.
As these observations are somewhat conditional and I would be seeking further assistance from counsel if required then there seems no necessity at this stage to make further remarks on the issue of quantum. I shall leave that until, and if, required to do so in the future.