Stephen William Pugh and Robyn Pugh v Brambles Security Services Ltd

[1993] SASC 4302

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Tort - negligence - employee injured when battery of motor vehicle exploded - sent by employer to collect vehicle from repairer - flat batteries - use of jumper leads by servants of repairer - employer guilty of negligence in failing to avoid exposing the plaintiff to unnecessary risk of injury and in failing to provide a safe system of work - duty of employer cannot be delegated - servants of repairer also guilty of negligence in the use of the jumper leads - method of use potentially dangerous - used without sufficient knowledge or skill - risk not 'far-fetched' or 'fanciful' - plaintiff not guilty of contributory negligence - apportionment 4O per cent to employer and 60 per cent to repairer.
Damages - injury to left ear drum - perilymph fistula repaired on occasions - shearing of hair cells of the balance organ of the ear, possibility of endolymphatic hydrops - tinnitus, hearing loss, dysequilibrium, headache - organic basis for symptoms established - psychogenic basis rejected - permanent condition - severe effect upon amenity of life and working capacity - considerable pain and suffering - non economic loss $75,000, economic loss $27,000, special damages $7,358.18, future treatment $3,000.
Loss of consortium - claim by wife - claim limited to loss of society and companionship - modest award justified - $5,000. Raimondo v State of South Australia (1978) 23 ALR 513; Smith v Austin Lifts Ltd (1959) 1 WLR 100; Jones v Santrans P/L and Shaw Pipe Protection P/L (1991) 56 SASR 103; Kondis v State Transport Authority (1984) 154 CLR 672; Wilsons and Clyde Coal Co v English
(1938) AC 57; The Council of the Shire of Wyong v Shirt and Ors (1980) 146 CLR
40; Andrewartha v Andrewartha (No. 1) (1987) 44 SASR 1; Lobb and Anor v Ellis
(1989) 10 MVR 88 and Toohey v Hollier (1955) 92 CLR 618 referred to.

HRNG ADELAIDE, 5-14, 16, 28 April, 30 November 1993 #DATE 3:12:1993
Counsel for plaintiffs:             Mr S Walsh QC
Solicitors for plaintiffs:         Lawson Downs
Counsel for defendant Brambles:     Mr J A Mangan
Solicitors for defendant Brambles: Mangan Ey and
   Associates P/L
Counsel for defendant Industrial:    Mr R Bonig
Solicitors for defendant Industrial: Baker O'Loughlin

ORDER
Damages assessed.

JUDGE1 MULLIGHAN J The plaintiff was employed by the first defendant as a security guard. On 22nd July 1986 he was injured at the premises of the second defendant when a battery in a security van exploded. He brings his action for damages for the injuries suffered and loss sustained by him. His wife brings her action for damages for loss of consortium. 2. The circumstances in which the plaintiff was injured were the subject of a considerable amount of evidence and much debate during addresses but the facts fall within a relatively narrow compass. 3. The plaintiff is aged 35 years. He left school at the end of year 11 and was soon employed as a junior mechanic. Thereafter he worked in various jobs but was, in the main, in regular employment. He married in 1983 and there is one child of the marriage, a boy aged 8 years. He obtained work with the first defendant on a casual basis in about 1984 as a security guard. He received the necessary training and worked in that capacity until his employment was terminated on 11th August 1988, well after he was injured. He enjoyed the work which involved working in, and driving security vans. He worked in the city, metropolitan area and in the country. About one year before he was injured he qualified to work as a driver and worked mainly in that capacity. 4. On the day he was injured the plaintiff was to work as an escort to the driver of a large armoured van. That van was at the premises of the second defendant, some repair work having been done to it by the second defendant which carried on the business of the manufacture and installation of springs at Port Road, Hindmarsh. Work had been done with respect to the springs on the van. The plaintiff went to work at the premises of the first defendant at Richards Street, Hindmarsh. He was instructed by Mr. Braddon to collect the van from the premises of the second defendant because the mechanic who would normally do so was not present and the plaintiff was qualified to drive that van. Mr. Braddon was the dispatch supervisor employed by the first defendant. He had no mechanical training. He drove the plaintiff to the premises of the second defendant. 5. The plaintiff located the van in a service bay. He climbed into the cabin and tried to start the van. It did not start as the batteries were flat. Some current flowed from the batteries as the plaintiff noticed that the ignition light was illuminated and a low vacuum warning buzzer operated which suggests that the electrical system was correctly connected to the batteries and was in working order. According to the plaintiff, he then went to an office and contacted Mr. Braddon by telephone. He told him what had happened. I mention later in these reasons my findings as to the conversation between the plaintiff and Mr. Braddon at this time. Mr. Braddon's recollection is that he waited at the premises of the second defendant after taking the plaintiff there. When the vehicle would not start he told the plaintiff to see if he could get a mechanic to try and start the vehicle and he then left. In giving that instruction, he expected that the plaintiff would be able to obtain the services of a mechanic at the premises of the second defendant. The differing versions of the plaintiff and Mr. Braddon as to how and where this conversation occurred is of no significance. However, if it was necessary to choose between them, I would prefer the evidence of the plaintiff. I found both the plaintiff and Mr. Braddon to be truthful and honest witnesses and both of them did their best to accurately recall the events about which they were asked. Nevertheless it is likely that the plaintiff would have better recall of matters of detail as he was the person injured and the circumstances of his injury are of importance to him. Also his evidence of making a telephone call at that stage accords with the recollection of Mr. Wills. Lastly, I think his version is more likely as there would be no reason for Mr. Braddon to doubt whether the vehicle would start and therefore to wait. 6. After this conversation, the plaintiff returned to the van. According to him, there were two men standing by it, Mr. Wills and Mr. Thompson. Mr. Wills was the older of the two men. Both of them were employed by the second defendant, Mr. Wills as a foreman in the service area and Mr. Thompson as a worker who removed and replaced springs on vehicles. Mr. Wills was Mr. Thompson's supervisor. The plaintiff had not previously known either of them. He spoke to Mr. Wills. The plaintiff's version of what then happened is that he told Mr. Wills that he thought the van had flat batteries and that Mr. Thompson said that he would get a truck brought down to start the van. Mr. Wills left and returned with a truck and a set of jumper leads. He connected the leads to the battery of the truck. The plaintiff had by this time entered the van and Mr. Wills passed the other end of the jumper leads to him. He waited until Mr. Wills entered the truck and they then had a discussion as to how to connect the jumper leads to the batteries in the van. 7. It is convenient at this stage to mention the batteries in the van and how they were connected. There were four six volt batteries. They were positioned side by side in a compartment below floor level behind the driver's seat. The batteries were connected into two 12 volt systems in a parallel system in order to provide adequate power for the starter motor and for internal use. I make that finding upon the evidence of Mr. Marshall, an expert auto electrician who replaced two of the batteries in the van after the plaintiff had been injured. He was shown photographs of the batteries in the van after the replacement and was able to say how they had been connected at the time the photograph was taken. There is no reason to suppose that the batteries were connected in any different manner on the day the plaintiff was injured. 8. After discussing how to connect the jumper leads, the plaintiff and Mr. Wills agreed to place the positive lead on the positive terminal of the second battery and the negative lead on the negative terminal of the same battery. The plaintiff cleaned around the terminals of the batteries so as to distinguish the positive from the negative and to remove grease. He then connected the jumper leads in that way in the immediate presence of Mr. Wills. The plaintiff then attempted to start the engine but without success. He heard only a clicking noise. Mr. Wills then checked to see that the clamps were tight and the plaintiff again attempted to start the engine without success. He then returned to the vicinity of the batteries and had a further conversation with Mr. Wills who then took the positive lead from the second battery and placed it upon the positive terminal of the third battery. The plaintiff again attempted to start the engine but without success. 9. As some time had elapsed, the plaintiff decided that he should inform his employer of what was happening. He went to the rear portion of the van to use the two-way radio to contact Mr. Braddon. He did so and told him that he was still experiencing trouble. Mr. Braddon told him to see if he could get the van going. The plaintiff said he would and returned to the cabin of the van. At that time Mr. Thompson entered the van. He said, "I know what I'm doing, I'll get it going". The plaintiff was on the driver's seat and turned around to watch. Mr. Thompson took the positive lead from the third battery and placed it on the positive terminal of the fourth battery. He took the negative lead from the second battery and placed it on a terminal of the first battery. The plaintiff did not see which terminal. There was an immediate explosion. This activity occurred very quickly and the top of the first battery was blown apart. Mr. Thompson was sprayed with acid. At that time the plaintiff was leaning over the back of the driver's seat of the van. He described what he felt as feeling the ricochet of noise in both ears and that it was as if someone had punched him in the side of the head. He had a "tremendous" ringing sensation in both ears and was totally deaf for a short time. Some small amount of acid sprayed onto his face. 10. The plaintiff left the van. He washed the acid away and contacted Mr. Braddon by telephone and told him what had happened, including that his ears were ringing. Mr. Braddon came and collected him and took him back to the premises of the first defendant. The ringing sensation was worse in the left ear, although present in both ears. The plaintiff went to work the next two days, a Thursday and a Friday. Over the weekend his condition deteriorated. He suffered from the ringing sensation, headache and "fuzziness" in his hearing and had difficulty in sleeping. I am satisfied that the plaintiff suffered a severe injury to his left ear as a result of the explosion. 11. Mr. Wills and Mr. Thompson gave different versions of the circumstances of the explosion. According to Mr. Wills, he organized someone else to get the jumper leads and the truck. He does not recall making any suggestions to the plaintiff about jump starting the van. He does not think that he connected the jumper leads. After the truck was in position for the jumper leads to be used, he entered the van. Mr. Thompson also entered the van and the driver of the truck, a Mr. Goodwin, waited outside. Mr. Wills said that he took up a position near the engine cover which is between the seats for the driver and the passenger in the cabin and that he turned the ignition key and no light came on. According to him, when the explosion occurred the plaintiff was not in the driver's seat. At that time he could not see what the plaintiff and Mr. Thompson were doing. 12. Mr. Thompson denied that he placed either lead on any terminal of the batteries of the van. He said that he collected the jumper leads and connected them to the batteries of the truck, positive to positive and negative to negative. He took the other ends of the jumper leads into the cabin of the van but did nothing further. According to him, he simply stood by and watched. He remembered the explosion but he could not recall how it happened and who used the jumper leads, but he denied that he used them in any way within the van. He said that he would not connect the jumper leads to the batteries in the van because he did not know how those batteries were connected to each other. 13. During cross-examination by Mr. Mangan, Mr. Thompson acknowledged that he had made a statement to a loss assessor on 2nd October 1986 about the circumstances of the explosion. He subsequently signed that statement and eventually he acknowledged, in his evidence, that what is contained in the statement is likely to be correct and his description in the statement of what occurred must be accurate. The statement reveals that Mr. Thompson made statements which are significantly inconsistent with his evidence. He told the loss assessor that he and Mr. Wills "attempted various ways of connecting the leads to the four batteries" in the van, that the plaintiff gave no instructions and left it to them to decide how to connect the jumper leads, that he, Mr. Thompson, connected the leads to the batteries in various ways without producing any response and that, finally, he connected the leads to the battery nearest the passenger's door and the other to the battery nearest the driver's door. He could not say to which terminal on each of those batteries the connection was made. Upon touching the terminal on the battery nearest the driver's door, the battery exploded. He also said in the statement that the Isuzu truck had two batteries and that he connected the jumper leads to the positive terminal on one battery and to the negative terminal on the other. In view of the circumstances of the explosion, it is reasonable to conclude that Mr. Thompson connected the jumper leads in such a way as to transmit current from both of the batteries on the truck to the van. 14. I did not find Mr. Thompson to be a reliable and convincing witness. Despite the passage of time, I expect that he could remember a good deal more than he was prepared to reveal in his evidence. I think he was not telling the truth when he denied connecting the jumper leads to the batteries in the van. That is not the type of matter which he would be likely to forget and his previous inconsistent statement was made at a time when the circumstances of the explosion were fresh in his memory. 15. I find that neither Mr. Wills nor Mr. Thompson gave an accurate and truthful account of the circumstances of the explosion and I accept the evidence of the plaintiff. 16. Before turning to consider whether liability attaches to either defendant for the injuries sustained and loss suffered by the plaintiff, it is necessary to reach some conclusion as to the cause of the explosion of the battery. On the day of the explosion two batteries were replaced by Mr. Marshall. He could not recall what happened to the batteries which were replaced but he thought it is likely that he took them to the premises of his employer and discarded them onto the scrap heap. He replaced two batteries in accordance with his usual practice. If one in a series needs to be replaced, it is desirable to replace both. 17. There was no examination of the battery which exploded. The leads and connections to the batteries in the van were not repaired or replaced. The van was again used and in working order after the two batteries were replaced and so it may be assumed that there was no other component of the electrical system of the van which caused or contributed to the explosion. 18. The task of determining the cause of the explosion has been greatly facilitated by the expert evidence of Mr. Marshall, which I accept without reservation. He is a very experienced auto-electrician who has worked extensively with motor vehicles, including heavy vehicles, for many years. I accept his evidence that a battery will emit gas in any of three situations, when under load, when being charged and when a cell is faulty. The caps in batteries have small holes to permit the escape of gas. This gas is highly inflammable. Mr. Marshall did not know the type of gas but he thought it was hydrogen sulphide. If gas has been emitted and remains in the vicinity of the top of the battery a naked flame or a spark can ignite the gas which may result in gas within the battery also being ignited. Because the gas is in the confined space of the battery casing, an explosion can occur of sufficient force to cause the top of the battery to be blown off the casing. 19. When connecting jumper leads, it is common for sparks to occur when the last connection is made. It is then that the circuit becomes complete. If gas is present an explosion can occur. Experienced persons try and avoid the risk of explosion in one of two ways, by making the earth connection through the engine of the vehicle rather than the negative terminal of the flat battery or by making the last connection at the charged battery which is usually in good condition and has not recently been under load and therefore the risk of the presence of gas is slight. 20. The batteries in the van were in a confined space. Although the evidence does not reveal whether there was ventilation underneath the batteries, there was little ventilation above them. The batteries had been under load during the attempts to start the vehicle. Gas was probably produced and emitted at that time. The evidence does not permit a finding that the battery which exploded had a faulty cell which produced gas, although that is possible. During the various connections of the jumper leads to the batteries of the van, except the last, no or insufficient sparks were created to ignite the gas. Further attempts to start the vehicle placed the batteries under load which produced more gas. When the final connection, or attempted connection, was made, sparks were produced which caused the gas to ignite and the explosion. All that was necessary to avoid the risk of explosion was to connect the jumper leads to the charged battery or batteries last or to make the final connection to the engine. 21. Starting a motor vehicle with a flat battery by the connection to a charged battery through jumper leads is a very common experience. It is reasonable to accept that it is a common experience among most motorists. A battery exploding in the course of that activity probably only rarely occurs. Nevertheless it does occur. Mr. Marshall was taught during his training that these types of explosions can occur when jumper leads are used. He had experience of a battery exploding through the ignition of gas but not when jumper leads were being used. He has seen many batteries after they have exploded without knowing the cause of the explosion. I am satisfied that it is well known among suitably qualified persons, by reason of instruction or experience, that batteries may explode in this way. The chances of such an explosion for this reason occurring in the van was increased by reason of the batteries being in an enclosed compartment inside the cabin of the van and therefore not as well ventilated as if under the bonnet and in a well ventilated position. Furthermore the battery system could give the appearance of a 24 volt system when in fact it was two systems of 12 volts. Consequently, an insufficiently knowledgeable person could incorrectly connect jumper leads thereby causing sparks at the final connection. Such a possibility, according to Mr. Marshall, is greatly enhanced if a charged 24 volt system is connected to either a 6 volt battery or a 12 volt system which is probably what occurred here. I find, on the balance of probabilities, the cause of the explosion was that the final connection caused sparks which ignited gas emitted from the fourth battery. 22. This was the only vehicle owned by Brambles which had this system of batteries inside the cabin. Other vehicles were smaller and had single 12 volt batteries under the bonnet. Prior to the explosion the plaintiff was not aware that a battery in a motor vehicle could explode during an attempt to start a vehicle by use of jumper leads. It seems that Mr. Wills also was not aware of that possibility but he was aware that a battery should be disconnected when welding on a vehicle is undertaken. He did not know why. Mr. Thompson acknowledged that he had more extensive knowledge. Immediately before the explosion he knew that sparks may occur during the jump starting process which could be dangerous. He said he was aware of these matters because of his previous experience in jump starting motor vehicles. He went on to say that one danger might be explosion because of the presence of gas but it is not clear whether he was aware of that possibility prior to this incident. Mr. Braddon had no knowledge of any significance about jump starting motor vehicles and of any potential danger in doing so. 23. The plaintiff brings this action against both defendants in negligence. He also alleges that the first defendant is in breach of the contract of employment in that it was negligent. There is no reason to distinguish between those two causes of action against the first defendant as the particulars of negligence alleged are common to both. 24. In my view the first defendant was guilty of negligence which was causative of the plaintiff's injury and loss. The first defendant employed a qualified mechanic at its premises at Hindmarsh. He was temporarily unavailable when it became known that the van would not start. The first defendant had previously used the services of Mr. Marshall and his employer with respect to its vehicles. There was no reason for the first defendant to assume that the plaintiff had any knowledge of mechanical matters or as to any other matter which could be of assistance in getting the van started. There was no pressing hurry to have the van started and returned to the premises of the first defendant. When it was known that the van would not start, the mechanic, after he returned to the premises of the first defendant, or Mr. Marshall, could have been instructed to attend and resolve the problem. To have adopted either course would have involved insignificant delay and expense. 25. The first defendant had a clear duty to take reasonable care for the safety of the plaintiff which includes taking reasonable care to avoid exposing him to unnecessary risk of injury and to providing a safe system of work for the plaintiff: Raimondo v State of South Australia (1978) 23 ALR 513 per Mason J at p.517. This duty existed even though the work was to be carried out at the premises of another: Smith v. Austin Lifts Ltd. (1959) 1 WLR 100 and Jones v Santrans Pty Ltd and Shaw Pipe Protection Pty Ltd (1991) 56 SASR 103. In order to discharge that duty the first defendant had to take such care as was reasonable in the circumstances to ensure that the plaintiff was not injured. The state of knowledge as to the circumstances in which a battery in a motor vehicle could explode as revealed by Mr. Marshall, and to a lesser extent by Mr. Thompson, demonstrates that in order to discharge its duty to the plaintiff, the first defendant had to have regard to that risk. It did not do so and it is of no consequence that Mr. Braddon was not aware of such matters. 26. The discharge of the duty of care of the first defendant to the plaintiff could not be delegated by the first defendant: Kondis v State Transport Authority (1984) 154 CLR 672. The duty to provide a safe system of undertaking the work to get the van started was personal to the first defendant and is not "fulfilled by entrusting its fulfilment" to others: Wilsons and Clyde Coal Co v English (1938) AC 57 per Lord Wright at p.78, Kondis (supra) per Mason J at pp.680-681 and Jones v Santrans Pty Ltd and Shaw Pipe Protection Pty Ltd (supra) per White J at pp.111-112. In my view, given the potential danger of a battery exploding, the first defendant did not discharge this duty by the instructions given by Mr. Braddon to the plaintiff. Furthermore in the context of whether the first defendant was in breach of that duty, the risk of explosion of the battery, even if unlikely, was not "far-fetched or fanciful" and was foreseeable: The Council of the Shire of Wyong v Shirt and Ors (1980) 146 CLR 40. Even accepting that the explosion was caused by the negligence of the employees of the second defendant, Mr. Wills and Mr. Thompson, the failure of the first defendant to adopt a safe system of starting the van constituted a failure by the first defendant to satisfy the non-delegable duty to provide a safe system of work for the plaintiff: Kondis (supra). 27. There can be no doubt that Mr. Thompson was negligent. He undertook a task, without sufficient knowledge or skill, which was potentially dangerous and, it would seem, to his knowledge. Mr. Wills was also negligent in that he was the foreman in charge of Mr. Thompson and he permitted him to try and jump start the van without any enquiry as to whether Mr. Thompson knew what he was doing. Both of these men had a duty of care to the plaintiff, having accepted the task of jump starting the vehicle and the risk of explosion and resultant injury and loss to the plaintiff was foreseeable. It was not suggested, and could not be correctly suggested, that the second defendant is not vicariously liable for the negligence of its employees Mr. Wills and Mr. Thompson. 28. Before turning to the question of apportionment of liability between the two defendants, it is appropriate to consider whether the plaintiff is guilty of contributory negligence. I do not think he was. This is not a case where an employee has some special skill or expertise which the employer has required him to exercise. The plaintiff had no knowledge, skill or expertise which fitted him for the task of starting the van. Furthermore, he had reported to Mr. Braddon that attempts to start the van had been unsuccessful. I accept the evidence of the plaintiff that Mr. Braddon then asked him, "Is there a mechanic?" and the plaintiff replied, "I don't know. I will try and find one". 29. Mr. Braddon then said "Well just see if you can't get it going". Earlier in his evidence the plaintiff gave a slightly different version of this conversation but when asked later for the precise detail of the conversation he gave the version which I have mentioned. It may be seen that even though Mr. Braddon had been made aware of the inability to start the vehicle, he instructed the plaintiff to see if he could get it going. There was no instruction to wait for the mechanic or whilst Mr. Marshall was instructed. When the plaintiff encountered Mr. Wills and Mr. Thompson and, in response to an enquiry, told them that the van appeared to have flat batteries, Mr. Wills said he would "get another truck and jump start it". According to the plaintiff, he thought Mr. Wills knew exactly what he was doing and that he could rely on him. It became apparent to the plaintiff after a time that Mr. Wills did not know how to jump start the vehicle but Mr. Thompson then asserted that he knew what to do. 30. In these circumstances the conduct of the plaintiff cannot be regarded as a failure to take care of his own safety. He had not been instructed to get a mechanic. He had not been told not to try and start the vehicle without a mechanic. It is reasonable to interpret Mr. Braddon's conversation with him as no more than an instruction to get the van going and he assumed that first Mr. Wills and then Mr. Thompson knew what to do. The plaintiff did not disregard any instruction or feature of the system of work. There was no suggestion that his first job after leaving school as a junior mechanic would have provided him with sufficient knowledge and skill to be aware of the potential for a battery to explode in those circumstances. I reject the contention that he was guilty of contributory negligence. 31. I now turn to the apportionment of responsibility for the plaintiff's injuries and loss between the two defendants. It was argued that the extent of the duty of care of an employer to his employee is somewhat higher than in other relationships and therefore the first defendant should bear a greater share of the responsibility than the second defendant. It was also argued that the negligence of Mr. Thompson, and to a lesser extent Mr. Wills, was of more significance than that of the first defendant. I agree with the observations of White J in Jones v Santrans Pty Ltd and Shaw Pipe Protection Pty Ltd (supra) at p.112:- "It does not matter that the respective breaches of the respective duties of care arose in different situations, in different relationships, in different places and for different reasons." 32. Both defendants are in part responsible. I think the share of responsibility to be borne by the second defendant should be a little greater than that to be borne by the first defendant. I apportion responsibility forty percent to the first defendant and sixty percent to the second defendant. 33. I now turn to the assessment of the plaintiff's damages. The force of the explosion damaged his left ear drum. The nature and extent of that damage and of any consequential disability was greatly disputed at the trial. Consequently, it is necessary to mention the evidence and my conclusions in some detail. 34. He did not suffer any permanent injury from the splashing of the battery acid. The plaintiff went to a local medical clinic shortly after the explosion where he saw Dr. Lewis. After receiving advice, he took the rest of the day off but returned to work the next day. The ringing in both his ears continued, although worse in the left ear, and he suffered headache and some lack of clarity in his hearing. He remained at work for the remainder of the week but during the weekend his condition deteriorated. Nevertheless he returned to work on the Monday believing that his condition would pass. His sleep was affected and the other symptoms continued. 35. On that day the plaintiff worked in an armoured van. He had to collect money from the first floor of bank premises in the city. As he left the lift he fell to the floor face down without moving. He then experienced a spinning sensation and dizziness. He left the bank premises but had difficulty in walking. He sat in the back of the van for a time but felt worse. The spinning sensation continued and he experienced nausea. Despite his requests to be taken back to the premises of the first defendant, his fellow workers continued with the run but eventually they returned to their base. After reporting his symptoms to the manager of the first defendant, the plaintiff was taken to Dr. Hamel, a general medical practitioner who referred him to Dr. Rozenbilds, a specialist ear, nose and throat surgeon. I accept that it is very likely that on this occasion the plaintiff had suffered the first incident of perstimulatory dysequilibrium. 36. After carrying out various tests, Dr. Rozenbilds advised the plaintiff to undergo exploratory surgery. The plaintiff sought a second opinion from Dr. Tomich who is also a specialist ear, nose and throat surgeon and he saw him on 12th August 1986. His diagnosis was that the plaintiff had probably suffered a left-sided labyrinthine injury, probably a perilymph fistula. On his advice the plaintiff took a month off work to see if his condition improved. According to the plaintiff, it became worse and Dr. Tomich then also recommended exploratory surgery which he performed on 30th September 1986. The plaintiff continued to suffer from tinnitus, headache and sleeplessness. The dysequilibrium had become almost constant and the plaintiff was falling over frequently. Dr. Tomich found and patched a round window perilymph fistula. It appears that the patching was successful but the plaintiff continued to suffer from tinnitus, headache and sleeplessness and experienced dysequilibrium on occasions, when driving a motor vehicle, which was associated with headache and lack of co-ordination of his legs and eyes. 37. Dr. Tomich continued to see the plaintiff. He recommended assessment by a neurologist which was undertaken with the result that no abnormality to the central nervous system was detected which could account for the plaintiff's symptoms. By the end of the year Dr. Tomich was of the opinion that the plaintiff had recovered from the left perilymph fistula, which he accepted was caused by the explosion, apart from the continuous left-side ringing tinnitus. He advised him to return to work. 38. The plaintiff continued to suffer from all of the symptoms including dysequilibrium. He returned to work with the first defendant but not as a driver. He worked as a guard in the rear of a security van. He experienced attacks of dizziness and loss of balance. On one occasion, in December 1986, he was working in the coin room at the premises of the first defendant which involved continual bending. He suffered another attack of dysequilibrium and again saw Dr. Tomich who recorded this incident as having occurred on 27th January 1987. Dr. Tomich undertook various tests. There were some signs of a recurrence of the fistula in the left ear but there were no other indications of an organic basis for the increasing symptoms of dysequilibrium and left-sided tinnitus. Also the relatively flat and mild left-sided neurosensory hearing which had earlier been detected was found to have progressed. Dr. Tomich continued to see the plaintiff during 1987. By June that year there was an apparent further progression in the hearing loss which was not entirely confirmed by a type of audiogram. Dr. Tomich arranged for further exploratory surgery on 12th August 1987. 39. According to the plaintiff, his condition remained much the same. On 9th August 1987 he went with his wife and son and members of her family to Berri. They stopped at an adventure playground and the plaintiff decided to use a flying fox. The first occasion was uneventful. On the second occasion he suffered an attack of dysequilibrium. He had no sensation in his legs and when he came to a mound at the end of the journey he broke his ankle. The plaintiff estimated that this injury would have caused him to be away from work for about one week if he did not have the problem with his left ear. It is unnecessary to reach any conclusion about that matter. The plaintiff does not seek damages in this action for that injury or any consequential loss. He received benefits under the Workers Compensation Act 1971. However, Mr. Mangan submitted that the flying fox incident is not without significance. He contended that the plaintiff was clearly irresponsible to engage in that activity a few days before the operation on his ear had been arranged. It also may show that the plaintiff did not have symptoms at that time or they were much less than he recounted in his evidence. Lastly, Mr. Mangan contended that his willingness to engage in this activity in the circumstances is instructive as to his personality and attitude which is an adverse contingency to be brought to account when considering damages for economic loss. I am not prepared to draw any inference adverse to the plaintiff by reason of the flying fox incident. Perhaps he behaved unwisely, but he was a relatively young man used to physical activity and, in my view, he did no more than act impulsively in the belief that the activity was well within his capacity, having overlooked the possibility of another sudden attack of dysequilibrium. 40. Further surgery on the left ear was carried out by Dr. Tomich on 12th August 1987. He found that portion of the graft had lifted. It was refreshened and regrafted. The plaintiff returned to work having been away for eight weeks. According to him, his ear condition improved for a time after this second operation, but before long the symptoms of dizziness and headaches resumed. However, he continued to work as a rear guard but was not permitted by the first defendant to work as a driver. There were significant periods of time during this year when the plaintiff claimed that he could not work as a guard due to the symptoms of his ear condition. He was placed on light duties. The plaintiff found many of these duties to be demeaning. He would be required to wash the manager's motor car. Having done so he would be required to wash it again. He had disagreements with the manager who, according to the plaintiff, did not accept that he had suffered any injury or had any disability. Other light duties were working in the coin room and the dispatch area. 41. As the plaintiff's symptoms continued after the second operation, he again consulted Dr. Tomich. He complained that the dysequilibrium and tinnitus was worse. Tests revealed that there may be a fistula in the right ear. An operation was performed on this ear on 4th February 1988 which revealed no abnormality. Further evaluation caused Dr. Tomich to consider whether the plaintiff was suffering from endolymphatic hydrops which, in brief terms, is an increase in the volume of fluid in the inner ear which may be caused by a loss of volume in the surrounding perilymph. The consequence is that the excess of fluid can damage the hair cells or sensory structures in the inner ear. He sent the plaintiff to Sydney for specialised testing which was performed in May and again on 22nd August 1988. The report of the first test raised the question whether the condition was a "psychogenic" problem. However, after the second test, Dr. Tomich concluded that the plaintiff was suffering from endolymphatic hydrops in the left ear. 42. According to the plaintiff, his employment with the first defendant came to an end because he could not perform the duties which he was employed to do. He was not permitted to work as a driver and, in view of his condition, for good reason. He found he could not work as a guard in the rear of a van as he suffered dysequilibrium. He did not work again until April 1990 when he obtained part-time work as a casual maintenance officer at a nursing home. In the meantime the plaintiff's symptoms continued and he saw Dr. Tomich from time to time. Dr. Tomich sought advice from Professor Gibson, the professor of otolaryngology at the University of Sydney. Professor Gibson undertook various tests including electrocochleography. The left ear did not show any signs suggestive of endolymphatic hydrops but did show signs suggesting that there was some perilymph leak. There were no signs of abnormality in the right ear. In a report written to Dr. Tomich, he wrote:-

    "I wonder if there is a reservoir between the round window
    and the seal which you inserted. I think you will have to
    drill back the niche and find the true membrane and then
    repair it. If you wish we could do this together in Sydney
    with intraoperative monitoring". 43. In December 1989 a further operation was performed by Dr. Tomich on the left ear and another graft was applied with analogous fibrin glue. The plaintiff's symptoms improved but continued and eventually reverted to the previous level. According to the plaintiff his condition has since remained constant. He continues to suffer headache, some hearing loss, tinnitus and from dysequilibrium. The hearing loss has been measured on a binaural basis at 35 decibels which is in the mild to moderate range. The tinnitus is significant. Whilst it is difficult to accurately measure, the level suffered by the plaintiff is about four kilohertz which is at the top range of high pitch in noise. It is present in both ears but louder on the left side. He sought yet another opinion from Dr. Rolland, another specialist ear, nose and throat surgeon in late 1990. In consequence of advice which he received, to the effect that the graft on the fistula had again lifted, he consulted Professor Gibson direct. On 1st February 1991 Professor Gibson repeated the electrocochleography and found no evidence of hydrops or of an on-going perilymph leak. He concluded that there may be some residual inner ear damage which was likely to remain whatever surgery was undertaken but that, hopefully, he would be able to retrain his balance to compensate for the deficit which had occurred. 44. The history which I have recounted is to some extent based upon the evidence of the plaintiff and his wife as well as upon the evidence of Dr. Tomich and Professor Gibson. I have no hesitation in accepting the evidence of all of these witnesses. Both Dr. Tomich and Professor Gibson are pre-eminent in their specialties and are well qualified to express the opinions which they have given. To some extent their opinions are based upon the truthfulness and accuracy of the plaintiff's description of his symptoms, but I accept that he has been truthful and accurate in what he has told them. 45. Professor Gibson saw the plaintiff again on 29th October 1992. Once again he repeated the electrocochleography. He found no evidence of a perilymph fistula. At that time he expressed the opinion that the plaintiff may have secondary endolymphatic hydrops but his tests had not revealed that condition. However, the tests did reveal that damage had occurred to the basal cochlear turn, which causes the tinnitus and hearing loss. 46. Dr. Tomich reviewed all of these opinions and findings. He expressed the opinion that it was unlikely that there was a perilymph fistula and it was possible that the plaintiff did suffer from endolymphatic hydrops which, he said, could mimic the symptoms of such a fistula. He advised against further surgery. 47. Dr. Tomich and Professor Gibson have both accepted that the plaintiff's complaints as to symptoms are genuine. The possible organic causes for his condition are a continuing fistula, hydrops or the loss or attrition of the hair cells of the balance organ in the ear. There could have been a shearing of these hair cells caused by the explosion and this condition can mimic the symptoms of the other conditions and cause dysequilibrium. Dr. Tomich does not think that there is a perilymph fistula based upon the tests conducted by Professor Gibson, but he accepted that the possibility remained. He also expressed the view that there is no evidence to support a diagnosis of hydrops. He has not excluded the condition of shearing. In his opinion the symptoms experienced by the plaintiff are consistent with any of these causes and they, in turn, are consistent with having been caused by the explosion. However, Dr. Tomich does acknowledge that if there is no organic cause, there may be a psychogenic or functional cause. 48. Professor Gibson expressed the opinion that any of the organic conditions which have been mentioned could, alone or in combination with one or more of the others, cause the symptoms. He, too, excluded the presence of a perilymph fistula at this time but accepted that such a fistula had earlier been present. However, he accepted that the plaintiff does suffer from damage to the inner ear which would account for all of his symptoms and which damage is consistent with having been caused by the explosion. 49. Professor Gibson is of the opinion that pressure from the explosion caused a perilymph fistula which has been patched by Dr. Tomich. However, it also caused other damage, namely the shearing of hair cells on the basal cord within the inner ear. 50. Both Dr. Tomich and Professor Gibson expressed the opinion that consistent with these conditions, dysequilibrium is likely to occur when the plaintiff is tired. Professor Gibson went on to say that it may be caused by sudden movements like getting up or moving the head quickly or playing tennis or squash. Considerable movement in front of his eyes is another cause. Professor Gibson would not be surprised if the plaintiff had hydrops. It did not show on testing, but the tests are not entirely reliable. He expressed the view that it is possible that the plaintiff does have hydrops. Also, it is possible that it may develop later in life. If that does occur, the attacks of dizziness will last longer and there may be a feeling of rotation or spinning accompanied by nausea and sometimes vomiting. During such attacks the tinnitus increases and there is some distortion to the hearing. The attacks occur at random, without warning and tend to cause, in the long term, significant hearing loss. Professor Gibson estimated the chance of the plaintiff developing hydrops, if he does not now have that condition, at about a fifty percent chance. If he now suffers from it, the chance of it developing into a much more serious condition is greater. However, there is treatment now available, in the form of both medication and surgery, which alleviates significantly the symptoms of hydrops. 51. Dr. Scanlon, a specialist psychiatrist, examined the plaintiff on occasions in 1988 and 1992 at the request of the legal advisers of the first defendant. He found that the plaintiff did not suffer from any psychiatric disturbance or depressive illness. He expressed opinions as to a possible psychological basis for the plaintiff's symptomology if there was, in fact, no organic basis for his condition. As I understand his evidence, he does not assert that there is no organic basis for the symptoms, although he suspects that such is the case. In his lengthy reports, and to some extent in his evidence, he has interpreted features of the plaintiff's background and his relationship with persons close to him in such a way as to provide a basis for the conclusion that there may be a psychological, as opposed to an organic, basis for the symptoms. In view of the opinions of Dr. Tomich and Professor Gibson, which I accept, that an organic basis exists, I reject Dr. Scanlon's thesis that the plaintiff's condition may have only a psychological basis. The plaintiff's condition is not caused by other than the damage to his left inner ear and, to a lesser extent to his middle ear, and he has not falsified or unduly exaggerated any of his symptoms. Although to some extent Dr. Tomich and Professor Gibson must rely upon the accuracy of the history given to them by the plaintiff, there has been a sufficient objective component in some of the tests administered by them to verify damage to the inner ear. Also, as may be expected, there is scarring of the middle ear in consequence of the operations which has contributed to the hearing loss. Neither Dr. Tomich nor Professor Gibson had any reason to doubt the genuineness or truthfulness of the plaintiff and nor did I. Dr. Scanlon's evidence does not cause me to doubt that there is an organic basis for the plaintiff's symptoms. In view of these findings, it is unnecessary to mention the features of the background of the plaintiff upon which Dr. Scanlon based his opinion. 52. Whilst there is some difference in the opinions of Dr. Tomich and Professor Gibson as to whether the condition of hydrops is present, they agree that the plaintiff did suffer a perilymph fistula which has now been repaired and that it is probable that he also suffered shearing of the hair cells in the inner ear. I find that the plaintiff suffered damage to the inner ear in consequence of the explosion, in the nature of a perilymph fistula and shearing of the hair cells, and that in consequence of the various operations he has scar tissue in the inner ear which contributes to his hearing loss, and that it is possible he also has hydrops which may develop to a more severe stage. In consequence of these conditions, he suffers headache, tinnitus, hearing loss and dysequilibrium. 53. The plaintiff has suffered considerably in consequence of his injuries. His condition has remained much the same since the explosion although he has learned to avoid some situations which bring on attacks of dysequilibrium. In the early stages after the explosion, these attacks occurred frequently, usually each week. After a time the frequency of the attacks reduced so that they do not occur more often than about once a month and even less frequently in their more severe form. Indeed he has not suffered a very severe attack which has disabled him for some months. The tinnitus is constant and he will suffer that condition permanently. He used a tinnitus masker for about six months some years ago but without good results. He has difficulty in sleeping and the headaches and hearing loss persist. He still drives a motor car but Professor Gibson is of the view that he should not do so. 54. Since he was injured he has been irritable at home causing many arguments with his wife and much unhappiness to them both. I accept the evidence of both of them as to the marital problems which are a consequence of the injury. The plaintiff has lost self esteem due to his disability and what he sees as a reversal of roles as he is often at home and undertakes domestic chores whilst his wife is at work. He realizes that his irritability is the cause of many of the matrimonial problems. 55. Prior to the explosion, the plaintiff and his wife enjoyed an active social life. They were close companions and also had an active sexual relationship. Their marriage was fulfilling to both of them. The plaintiff took an active role in caring for his son. Since the explosion the marriage relationship has deteriorated to the point that despite counselling there is a real possibility that the marriage will fail. There is little companionship and affection or social activity. Their sexual relationship is almost non-existent. The plaintiff goes to bed early each night with a television set playing loudly to mask the tinnitus. He takes serepax and other medication for his headaches and to assist him to sleep. He is not close to his son because he has not had the necessary patience to care for him. Whilst it is to be hoped that the plaintiff and his wife can resolve their differences and that the plaintiff will be able to sufficiently amend his ways so that the marriage can be saved, the present difficulties, which have existed for some years, cause great distress to both of them. 56. Before the injury the plaintiff was a fit and active man. He played squash and rode a bicycle regularly. He enjoyed swimming. His disabilities prevent him from playing squash and riding his bicycle long distances. He swims only occasionally. 57. Clearly the effects of the damage to the inner ear have been considerable. The plaintiff has lost most of what he considers worthwhile and it is unlikely that his condition will improve significantly. I assess his damages for non-economic loss at $75,000. I apportion $40,000 to the past and $35,000 to the future. 58. If the plaintiff had not been injured there is no reason to suppose that he would not have continued to work as a security guard and driver with the first defendant. He enjoyed that work and there is no suggestion that he did not discharge his duties satisfactorily prior to the explosion. Without doubt he has suffered a diminution in his earning capacity by reason of his disabilities and I reject Mr. Mangan's argument to the contrary. His attempts to work after the explosion are testimony to his incapacity to work in his former employment and to his determination to remain in the work force. I accept his evidence that he must avoid sudden head and eye movements and becoming over tired if he is to minimize the risk of a severe attack of dysequilibrium. His disability has reduced his chances of obtaining work in the labour market. He does have a significant residual earning capacity in employment that does not require bending and sudden movements. The difference between what he would probably have earned in employment with the first defendant had he not been injured and what he has in fact earned is approximately $93,000 after payment of income taxation without deduction of a medicare levy. 59. Mr. Mangan also contended that the plaintiff has been capable of working more extensively since the explosion than the work which he has done. He has, in effect, been working about half time. I think he probably could have worked longer hours as a handyman if more work had been available to him, but it was not. The plaintiff applied for other jobs but without success. He even applied, in July 1990, for a job as a security guard with the first defendant. He made that application genuinely in the hope that he would get the job and be able to do the work. Mr. Mangan contended that the making of this application should be interpreted as an indication that the plaintiff had recovered sufficiently to discharge the duties. I do not think so. The evidence discloses that he was not capable of working as a security guard. The first defendant rejected his application without giving the reason. The plaintiff also applied for a position as a security officer with the former Court Services Department but was unsuccessful. In my view, these applications for jobs establish no more than that the plaintiff was willing to work. 60. I assess the plaintiff's damages for past economic loss on the basis that he did utilize his residual earning capacity reasonably and as effectively as the circumstances permitted. It is a reasonable measure of his loss to compensate him on the basis of what he would have earned but for the explosion, having regard to contingencies. Some amount must be deducted for the obligation to pay the medicare levy. There is no evidence as to the amount of the levy in each year. I do not think there should be any allowance made for contingencies, adverse or favourable. Prior to the explosion, the plaintiff was in good health. He enjoyed his work and he would have wanted to continue in this employment with the first defendant. There is no reason to suppose that he would have been retrenched or promoted. In my view, any adverse contingencies are adequately balanced by the plaintiff not being compensated for past economic loss in current money. I allow $90,000. 61. I now turn to the assessment of damages for future economic loss. But for the explosion and resulting injury, it is likely that the plaintiff would have wished to continue in his employment as a security guard and driver for the rest of his working life. The first defendant is a well established organisation and there is no reason to suppose that it would not have continued to employ security guards and drivers. It is possible that the plaintiff may have tired of country work and lost some overtime and penalty rates. However, subject to the usual adverse vicissitudes of life and the adverse contingencies resulting from the plaintiff's interests in diving and snorkelling and road cycling, it is likely that he would have continued in this employment until retirement, no earlier than age 60 years. The weekly earnings of a present employee of the first defendant doing the work which would have been done by the plaintiff is $458 per week. The award rate for such a person is $451.70 per week. If the plaintiff was totally incapacitated from employment, the lump sum necessary to compensate him for all future loss of wages at the rate he would now have earned had he not been injured until the age of 60 years calculated on actuarial basis would be $408,076. To age 65 years the amount would be $452,962. However, he is not totally incapacitated. He has proved that he has the capacity to work 20 hours each week in light work as a handyman. With training, he may be able to work in many sedentary occupations which do not require climbing and sudden movements and do not cause him to become over tired. However, he will always require an understanding and sympathetic employer if he is to obtain and remain in regular employment. It may be possible for him to obtain suitable full-time employment but I think that is unlikely. He is at a serious disadvantage in the labour market. He has significant impediment to his working capacity. Whilst the actuarial calculations which I have made can afford some guidance in assessing damages for the plaintiff under this head, I do not think the precision of such a calculation is appropriate. 62. Having regard to the extent of the residual earning capacity of the plaintiff and the usual contingencies, favourable and unfavourable, I assess the plaintiff's damages for future economic loss at $180,000. 63. Special damages have been agreed, as to quantum, at $13,396.96. All of the expenses were necessarily and reasonably incurred and I allow that amount. 64. There must be some award for future medical treatment. It is unlikely that the plaintiff will incur much expense by way of fees charged by medical practitioners, but it is likely he will have some medical treatment from time to time. He will continue to take drugs at a modest cost. It is not possible to precisely calculate the cost of future treatment and drugs but some estimate can be made. I allow $3,000. 65. In summary I assess the plaintiff's damages as follows:
   Past            Future
Non economic loss                $40,000.00     $35,000.00 Economic loss $90,000.00     $180,000.00 Special damages                 $13,396.96 Future treatment   $3,000.00
   $143,396.96     $218,000.00
   143,396.96
    Total   $361,396.96 66. Various amounts have been paid to the plaintiff on behalf of the first defendant by way of worker's compensation benefits. I shall hear the parties as to the interest and as to the terms of the judgment which should be entered against each defendant. 67. It remains to consider the claim of the wife of the plaintiff for damages for loss of consortium pursuant to 5.33 of the Wrongs Act 1936. It is clear that her damages must be confined to loss of the plaintiff's society and for the temporal losses involved in that loss. Damages may not be awarded for distress and sorrow and the mental and spiritual losses which she has suffered: Andrewartha v. Andrewartha (No. l) (1987) 44 SASR l. In Lobb and Anor. v. Ellis (1989) 10 MVR 88, King CJ, at pp 88-89, accepted that an 'award for loss or impairment of consortium must be confined to the material or practical consequences of loss or diminution of the spouse's society and services'. The material or temporal loss must be capable of estimation in money: Toohey v. Hollier (1955) 92 CLR 618 at p 628. 68. There is no need to repeat my findings as to the consequences of the plaintiff's injuries to the marital relationship. His wife has lost much of the positive side of that relationship. There has been very little society or companionship between them for some years. There is no certainty that their relationship will improve. However, I do not think the plaintiff's wife has suffered much by way of material or practical consequences of the plaintiff's injury or disability. In a real sense the converse is the case. He has been at home and has prepared meals, undertaken housework and transported their child, which he would not have undertaken had he not been injured. She has not suffered financially as she has remained at work. However, she has lost the plaintiff's society very substantially and even after disregarding her distress and sorrow and her mental and spiritual losses, a significant, although modest award, is justified. I allow $5,000. 69. The plaintiff's wife is to have judgment for that amount and I shall hear the parties as to the precise form that judgment should take.