Woosnam v Minproc Engineers Ltd - [2001] WADC 176

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WOOSNAM -v- MINPROC ENGINEERS LTD & ANOR [2001] WADC 176

CORAM: MARTINO DCJ

HEARD: 2-5 APRIL 2001

DELIVERED : 31 JULY 2001

FILE NO/S: CIV 2829 of 1997

BETWEEN: STEVEN MARK WOOSNAM
Plaintiff
AND
MINPROC ENGINEERS LTD
First Defendant
KIRFIELD ENGINEERING & CONSTRUCTION PTY LTD
Second Defendant (Third Party)
WALDERMAR ETSCHMANN
Fourth Party

Catchwords:

Torts - Damages - Personal injuries

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff:        Mr A S Stavrianou
First Defendant  :        Mr T H Offer
Second Defendant (Third Party)     :        Mr M A McAuliffe
Fourth Party  :        No appearance

Solicitors:

Plaintiff:        Bradford & Co
First Defendant  :        Corrs Chambers Westgarth
Second Defendant (Third Party)     :        McAuliffe Williams & Partners
Fourth Party  :        No appearance

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

Nil

Case(s) also cited:

Bowen v Tutte [1990] A Tort Rep 81-043
Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Jongen v CSR Ltd & Anor [1992] A Tort Rep 81-192
Peate v Commissioner of Taxation (1964) 111 CLR 443
Purkess v Crittenden (1965) 114 CLR 164
Thomas v O'Shea [1989] A Tort Rep 80-251
Watts v Rake (1960) 108 CLR 158

MARTINO DCJ: The plaintiff claims damages for personal injuries suffered in an accident on 25 February 1996. The defendants denied liability in their defences but on the morning of the trial I was informed that liability had been agreed and the hearing was for the purpose of the assessment of damages only. As a result of the agreement between the parties the fourth party took no part in this action. Both defendants contend that any injury, loss or damage suffered by the plaintiff was caused or contributed to by a pre‑existing condition of the spine and that the defendant had failed to mitigate his loss.
The plaintiff was born on 4 November 1963. He is naturally left‑handed. He left high school at age 15 after completing Year 10. On leaving school he obtained unskilled work. After working for approximately a year he commenced a pre‑apprenticeship course at TAFE of six months' duration. In 1981 he commenced an apprenticeship as a boilermaker/welder. He completed that apprenticeship after four years and obtained his ticket as a boilermaker/welder in June 1985. In 1991 he obtained his ticket as a rigger after completing a 36 week, two hours a week course at TAFE. This was his third attempt at obtaining that qualification.
From mid‑1985 until the date of the accident the plaintiff worked as a boilermaker/welder or as a rigger.
The plaintiff married in 1987. He has three children. The eldest is aged 12, the youngest 9. In 1992 he commenced working as a boilermaker on a sub‑contract basis. This was because the company for whom he was to do work contracted only on that basis. As a result of advice he received from his accountant he structured his affairs so that he was in partnership with his wife under the business name S & L Rigging. This enabled him to split his income equally with his wife. His wife did some work in the partnership doing the books and paying the bills. The plaintiff estimated she worked two hours a week.
The plaintiff was a keen cricketer. In 1992 he suffered pain in his back and left shoulder while bowling in a game of cricket. He attended upon a general practitioner, Dr Murphy, who sent him for x‑rays. The report on those x‑rays concluded that the plaintiff had a spondylolysis of L5. The pain subsided after a few days. The plaintiff returned to training by Wednesday the following week and was playing cricket on the next weekend. The plaintiff had no further problems with his back or shoulder until the accident the subject of this action.
The plaintiff commenced working for the second defendant in February 1995. The basis upon which he worked for the second defendant was that S & L Rigging was a sub‑contractor to the second defendant and was paid $25 an hour for the plaintiff's services. The second defendant deducted 25 per cent for tax under the PPS system. The plaintiff supplied his hand tools and the second defendant supplied everything else.
The plaintiff remained working for the second defendant from February 1995 until the accident on 25 February 1996. At that time he was working for the defendant on the construction of a large piece of mining equipment called a stacker at Kemerton, near Bunbury. At the time of the accident the plaintiff was tightening bolts on a deck of the stacker. The deck was approximately 18 metres above the ground. The plaintiff felt a jerk and looked down and saw the ground getting closer. When the deck fell to the ground the plaintiff landed primarily on his left side and hit his head resulting in a gash to his head. The plaintiff was bleeding from the gash on his head and felt numb and in shock. Other workers ran over towards him and gave him first aid.
He was then taken to the Bunbury Hospital where x‑rays were taken and a doctor placed sutures in the gash on his head. The plaintiff returned to work feeling very sore. He sat in the crib room for about an hour and then the other workers came in for lunch. He went to go to the toilet and found he could not move and so decided he should go home. He was assisted to a car and then driven back home. The next day his whole body was in considerable pain. He rested for the next few days. He required assistance from his wife to help in bathing and getting dressed because he was in pain.
On 1 March 1996 the plaintiff saw his general medical practitioner Dr Colin Hughes. The plaintiff told Dr Hughes that he was very stiff and sore in the neck and lower back and that he had a constant quite severe headache which was aggravated by alcohol.
On examination Dr Hughes found a full range of movement of the plaintiff's cervical and lumbar spine. The plaintiff was tender near those areas of the spine. Dr Hughes recommended that the plaintiff take a further four days off work and prescribed anti‑inflammatory medication.
Dr Hughes next saw the plaintiff on 5 March 1996. The plaintiff told Dr Hughes that he had no neck or back pain and that he felt fit enough to return to work.
The plaintiff returned to work on around 5 March 1996. This followed a request from the second defendant. He was allocated supervisory work. He had difficulties coping with that work. He could not lift his head properly and he felt sore. He worked only for one day.
On 25 March 1996 the plaintiff again saw Dr Hughes. He told Dr Hughes that he was getting very sore around his neck, that he had a sore back and that his headache had returned when he tried to return to work. Dr Hughes referred the plaintiff for physiotherapy and prescribed analgesics.
X‑rays of the plaintiff's cervical and lumbar spine were arranged by Dr Hughes. Those x‑rays suggested an L5/S1 Grade 1 spondylolisthesis with a bilateral pars defect.
On 15 April 1996 the plaintiff informed Dr Hughes that he had developed pain in his left upper arm.
The plaintiff gave evidence that about a month after the accident he again returned to work for the second defendant, this time at Geraldton where the second defendant was finishing off a job. It would seem from Dr Hughes' report dated 20 May 1996 that the return to work was in April 1996. He worked for two weeks and found the work very difficult due to pain primarily in his back and left shoulder. He has not worked again for the second defendant.
The plaintiff was provided with rehabilitation services that were arranged by the second defendant's workers' compensation insurer. In June 1996 that rehabilitation service provider arranged for a work trial working four hours a day including travel. He did some of the duties of a boilermaker. He got up to doing six hours a day including travel but that work finished at Christmas 1996 because the work had run out. While he was doing that work he was very sore in his head, back and left side. He got behind in his mortgage payments and was having difficulty paying other bills and this was causing stress in the family. While he was working for that company he obtained a crane driver's certificate which he paid for himself and for which he had to study.
The rehabilitation service provider obtained a work trial for the plaintiff with Brambles. The plaintiff hoped to work as a crane driver but he did not get to drive cranes. He did some work as a dogman, slinging the loads on cranes. However there was little work for him to do and the plaintiff spent most of the time sitting in the crib room so it was arranged that he stay home unless there was any need for him.
Through his own efforts the plaintiff found employment with GM Mining Electrics working four hours a day in late 1997. He started off as a tea boy getting coffees and helping tradesmen. For this he was paid $7.60 an hour. GM Mining Electrics tried to get the plaintiff to do heavier work later on. The plaintiff had facet joint injections in his neck and back which reduced his pain a little. He was laid off from work before Christmas 1997 and recommenced in 1998. He ceased halfway through 1998 because GM Mining Electrics needed someone to work more hours. He has not worked since.
In 1999 the plaintiff enrolled in a one year certificate course in civil and structural drafting at TAFE. He had difficulty with a number of the units and did not pass all the units required. In 2000 he enrolled in a one year certificate course in Mechanical Drafting for which he was given credit for a number of units he had passed in the course for his studies the previous year. He again failed a number of units.
The plaintiff has not re‑enrolled at TAFE this year because he has had an operation on his left shoulder and left knee.
The plaintiff does not believe he could work as a crane driver because there is heavy work involved in setting up the crane nor does the plaintiff believe he would work as a boilermaker or rigger due to the consequences of the accident.
The plaintiff finds that sitting down for too long causes his buttocks and back to get sore. He suffers from headaches. At the time of the trial his left shoulder was immobilised as a result of the surgery but his orthopaedic surgeon Mr Janes hoped that it would improve. The plaintiff suffers from back pain all the time in the centre of his lower back and his neck is stiff and sore.
The plaintiff suffers from a painful left knee and if he turns too quickly he gets dizzy.
Prior to the accident the plaintiff had had a discussion with Mr Woollams, a supervisor of the second defendant, in which Mr Woollams had informed the plaintiff of the opportunity of working overseas for the second defendant. The plaintiff also knew that other employees of the second defendant worked overseas. The plaintiff decided that if given the opportunity he would work overseas for the second defendant and he informed the second defendant's owner, Mr Jim Hancock that he would like to do so.
Since commencing his studies at TAFE the plaintiff has not applied for work. He has been looking after his children. His wife has been working for the last three or four years.
The plaintiff agreed that he liked to be involved actively in his children's sporting activities and their upbringing generally. He said that he worked away for the second defendant to obtain income to benefit the children, particularly their education. He did not know for how long he would have done that.
The plaintiff said if he had not had the accident he would not have taken a holiday around Australia in the year 2001 but probably would have done that when the children were old enough to be independent.
In February 2001 Mr Greg Janes, an orthopaedic surgeon, carried out surgery on the plaintiff's left shoulder and left knee. Mr Janes expressed the opinion that the injuries to the plaintiff's left shoulder and left knee were injuries that required considerable force. He would have expected the plaintiff to have complained of pain in his knee earlier than five months after the accident and to have complained of pain in the shoulder earlier than six to seven weeks after the accident. There were two injuries to the plaintiff's left knee. One was an injury to his posterior cruciate ligament and the other was a lateral meniscus injury. It was the lateral meniscus injury which he repaired in surgery. It was the posterior cruciate ligament injury which, in Mr Janes opinion, was consistent with a major force such as that involved in the plaintiff's accident.
The plaintiff's wife, Mrs Mary Woosnam, gave evidence that her partnership with her husband was a result of advice received from their accountant. Her role in the partnership was to assist with record keeping and to make purchases and pay bills. She estimated that initially she spent two hours per week on these activities and it reduced to around one hour a week.
After the accident Mrs Woosnam cared for the plaintiff for two or three days assisting him with all activities of daily living such as showering and since the surgery in February 2001 she has dressed him and cared for him. The accident has had an impact on their marriage and it has required her to take up employment.
Mrs Woosnam agreed that it would not have been healthy for her husband to have been away for long periods of time such as occurred when he was working for the second defendant in the long term. By that she meant it would not have been healthy for the family as a whole and particularly the children. She had not discussed with the plaintiff for how long he would work away.
The plaintiff called Mr Mark Leighton Sivwright and Mr Zenon Paulukiewicz. Both are employees of the second defendant of long standing. They gave evidence as to their rates of pay and as to the desirability of spending periods overseas where a bonus of $5 an hour is paid if more than three months is spent overseas. Tax is not paid on that income.
On 2 October 1996 Mr David Wright, an orthopaedic surgeon, reviewed the plaintiff at the request of his solicitors. The plaintiff told Mr Wright that he had pain in his low back, cervical spine, left shoulder and left knee. Mr Wright has seen the plaintiff on several occasions, the most recent being 20 September 2000.
Mr Wright assesses the plaintiff as having a 12.5 per cent permanent loss of function of his lumbar spine, 7.5 per cent loss of function of his left shoulder and 2.5 per cent loss of function of his cervical spine. In his opinion the plaintiff is not fit for heavy manual work but is fit for light to moderate work.
Mr Wright's evidence was that spondylolisthesis is relatively common. The condition exists in about 8 per cent to 9 per cent of the population. It is caused by a developmental defect in a vertebrae followed by one vertebrae slipping forward on another. The plaintiff has Grade 1 spondylolisthesis which is relatively mild. This condition is similar to, but different from, the spondylolysis reported in the 1992 x‑ray report. In spondylosis the vertebrae has not slipped forward. Mr Wright said that it is possible that the 1992 x‑ray was not properly interpreted or that in the accident on 25 February 1996 the plaintiff's vertebrae slipped forward resulting in spondylolisthesis. It is possible for either condition to be asymptomatic for long periods. However once a person has pain in most cases it is likely to recur. If Mr Wright had seen the plaintiff's x‑ray report in 1992 he would have advised the plaintiff at the time to think about a lighter occupation than that of a boilermaker and rigger. The plaintiff had a number of risk factors to developing back pain in view of his degenerative defect. These risk factors included the absence of rest periods in his work while working for the second defendant and his sport of cricket in which he was a bowler.
John Laurence Robinson was called by the plaintiff. Mr Robinson is a draftsman, is president of the Association of Engineering & Drafting Services and has 29 years experience in the drafting industry. He carries on business in partnership with another draftsman and employs one qualified and four trainee draftspeople.
There are two qualifications for a draftsperson. Both are the result of TAFE courses. The first qualification is a certificate course. This is the basic level qualification. A diploma course involves further studies and is an extension of the certificate course. It gives the draftsperson a higher qualification. Mr Robinson encourages all of his trainees to complete the diploma course. A person with a diploma receives a higher income. Most of Mr Robinson's trainees are aged 17 to 20 years. He has not employed a 37 year old trainee.
Mr Robinson believes a strong display in maths indicates a higher potential as a draftsperson and weak maths counts against a person in applying for a position. Work is now done on computers and so the need for maths has been reduced.
The plaintiff called Brian Matthews, an engineering lecturer at Midland TAFE. Mr Matthews gave evidence both about the course at TAFE and his experience with the plaintiff. Maths is a compulsory subject to obtain a certificate in both mechanical engineering and structural engineering. The plaintiff has failed maths subjects twice. TAFE allows two attempts to do a subject and after that they have the discretion to allow another attempt at the subject. They would exercise that discretion in the plaintiff's favour because he has progressed so far in his courses. Mr Matthews would recommend the plaintiff for employment.
Dermott Graham Balson is an actuary. Mr Balson gave evidence as to the present day value of lost superannuation contributions according to various salary levels.
The first defendant did not call any evidence.
The second defendant called Debbie Ann Larsen, a labour economist. She gave evidence as to the availability and remuneration of various employments based upon statistics from Australian government departments and her own expert analysis of those statistics.
Miles Leonard Glanville gave evidence as to the fact that he observed the plaintiff jogging for about seven minutes in May 2000 and took some surveillance film of him. The plaintiff was jogging with his son. The plaintiff then joined a group of parents. There were a couple of soccer balls nearby and they pushed them to and fro. Mr Glanville then saw the plaintiff show great skill in flicking a ball up from the toe onto one knee from knee to knee and then back to the foot again to kick to the parents. In cross‑examination Mr Glanville said he was not mistaken and he was sure that it was the plaintiff that he had seen. In cross‑examination, the plaintiff was asked about these activities. He admitted to some jogging but denied that he had the ball skills which Mr Glanville observed.
The second defendant's insurer had the plaintiff reviewed on a number of occasions by Dr John Richard Suthers, an occupational physician. Dr Suthers saw the plaintiff on 17 September 1996, 16 June 1997 and 13 September 1999. The plaintiff impressed Dr Suthers as being an honest person, always keen to get back to work. The plaintiff had Grade 1 spondylolisthesis that almost certainly pre‑dated the accident. Apportionment of responsibility of his pre‑accident condition is very difficult in Dr Suthers' opinion. "It would be reasonable to assume that 50% of the pain is due to the pre‑existing state and 50% to the incident". He assessed the plaintiff as being fit to carry out full time light work as a draftsman, courier driver, building estimator, building construction supervisor or welding supervisor/inspector.
The second defendant called Gregory Robert Mainstone, the managing director of a building maintenance company. Mr Mainstone's company employs building supervisors and are currently looking for building supervisors to employ. Their remuneration is $35,000 a year plus a car, a phone and superannuation.

The second defendant's business has been taken over by a company with a similar name and its payroll clerk, Sue Bronwyn Conduit, gave evidence. She deals with pay arrangements where employees are riggers. Persons who hold rigger's certificates are employed as boilermaker/welders and their remuneration can range from $15.39 to $16.10 per hour. If they work on‑site they earn an extra $2.01 per hour and if they are employed overseas they earn a further $2.60 per hour. Sub‑contractors get paid $26 per hour which is a flat rate regardless of how many hours worked so they do not get paid for time‑and‑a‑half and double time and they do not get paid extra for working on‑site either in Australia or overseas.
Workers are paid superannuation according to their earnings per month.
Mr Franklyn Gilbert Bell, orthopaedic surgeon, gave evidence before trial and his evidence was tendered as an exhibit by the second defendant. It was Mr Bell's opinion that in the next month or so, after recovering from Mr Janes' surgery, the plaintiff would have a capacity to work as a draftsman, courier driver, storeman, building estimator, building construction supervisor, building supervisor inspector.
Having heard the plaintiff give evidence and having heard all the other evidence presented to me I conclude that the plaintiff was an honest witness who gave his evidence fairly and endeavoured to be as accurate as possible.
The plaintiff was involved in a very serious accident when the platform on which he was working fell approximately 18 metres. There is no doubt that the plaintiff suffered a laceration to his head, a neck injury and back pain following the accident.
I am also satisfied that the plaintiff had a pre‑existing defect in his spine. That defect had been symptomatic on one occasion prior to the accident and that was in 1992 after playing cricket. That back pain resolved after a few days and the plaintiff was able to continue working without any restriction. He also returned to playing cricket. I am satisfied that while the plaintiff did have a pre‑existing defect in his spine that it was the accident which rendered his back defect to become and remain symptomatic and has resulted in pain and limitation in his capacity to work.
The defendants disputed that the plaintiff's knee injury was caused by the accident. The reason for that dispute is that it was not until approximately five months after the accident that the plaintiff complained of knee pain and that appeared to have been precipitated by rehabilitation work in the gym. The evidence of Mr Janes was that the plaintiff had two injuries to his knee. One was to his posterior cruciate ligament and the other was a tear of the lateral meniscus. It was the tear of the lateral meniscus that was repaired at surgery by Mr Janes. Mr Janes' evidence was that the lateral meniscus tear could have occurred at any time for example, by a simple twisting injury, but the posterior cruciate ligament injury meant that the knee had been subjected to a fairly violent event. The only time such injuries are seen are in accidents involving a very large degree of trauma.
On the basis of Mr Janes' evidence I conclude that the most likely cause of the two injuries to the plaintiff's right knee is the accident on 25 February 1996. While it is surprising that the plaintiff did not notice his knee pain earlier than he did a possible explanation is that other symptoms resulting from the plaintiff's accident had a greater impact upon the plaintiff.
The defendants also submitted that the plaintiff's shoulder injury was not caused by the accident and that was because the plaintiff did not report shoulder pain until 15 April 1996, some six weeks after the accident. Mr Janes' evidence was that injuries of the type suffered by the plaintiff to his shoulder are only caused by accidents involving very significant trauma. The accident on 25 February 1996 in which the deck on which the plaintiff was working fell approximately 18 metres would have generated the force to cause that shoulder injury. While it is surprising that the plaintiff did not report shoulder pain as a result of this significant trauma prior to 15 April 1996 the most likely reason is the significant other pain that the plaintiff was suffering. I also note from Dr Hughes' report dated 20 May 1996 that the notes from the Bunbury doctors who saw the plaintiff on the day of the accident was that he was tender in his arms and tender over the left ribs which is consistent with an injury to the shoulder being suffered in this fall. I conclude that the plaintiff's shoulder injury was caused by the accident on 25 February 1996.
The plaintiff suffered an injury which has significantly disabled him and has had a serious impact upon his life. I assess his general damages at $40,000.
The plaintiff has had some earnings in the period since the accident. Part of those earnings have been while employed by the second defendant and part the employment he found on his own. While the first defendant submitted that the plaintiff has failed to mitigate his loss by failing to obtain suitable income the second defendant, which has had direct experience of the plaintiff's attempt at rehabilitation since the accident, did not make that submission. My own assessment of the plaintiff was that he made the best effort to minimise the effect of is injuries and I reject the submission that he has failed to mitigate his loss.
Counsel for the second defendant submitted that if the plaintiff had continued to work for the second defendant it is likely that he would have moved from being a sub‑contractor to an employee because the only reason that he was a sub‑contractor was to enable him to split his income with his wife. His wife did not play any role in the business of significance. Counsel for the second defendant pointed to changes to the income tax legislation introduced with effect from 1 July 2000. Where, as in the plaintiff's case, income is derived from one person's personal services and from one client the income derived from that person's services is taxed as that person's income. I accept that submission and I calculate the plaintiff's past and future loss on the basis that he would have been taxed as an employee.
Although the plaintiff would have had the opportunity to work overseas if he had not been injured I am not satisfied that he would have taken up that opportunity. It would have meant separation from his family for lengthy periods and I am not satisfied that he would have been prepared to do that. However I am satisfied that he would have been prepared to continue working in regional areas to provide for his family. It is not possible to be precise as to what the earnings of the plaintiff would be if he had not been injured and had remained in employment with the second defendant.
In the year ended 30 June 1995 the net profit of the plaintiff's partnership was $58,860. In the year ended 30 June 1996 that net profit was $60,280.
Mr Sivwright's earnings were as follows:
Year ended  Gross salary
30 June 1996  $53,321
30 June 1997  $60,853
30 June 1998  $68,813
30 June 1999  $81,466
30 June 2000  $77,243
However, Mr Sivwright worked overseas at times and I am not satisfied that the plaintiff would have done so.
I conclude that a reasonable estimate of the plaintiff's earning capacity is a gross salary of $1,100 per week or $57,200 per year. To 30 June 2000 that equates to an after tax salary of $743 per week. It is now an after tax salary of $803 per week.
The period from the accident to 30 June 2000 was 226 weeks. The period since then is 56 weeks.
226 weeks x $743  $167,918
56 weeks x $803  $ 44,968
Less actual earnings  $    3,594
Balance  $209,292
Less net weekly compensation that


the plaintiff has received  $ 86,050
Balance  $123,242
Interest on that sum at the rate of 3% per annum        $ 20,246
Income tax paid on the workers' compensation that the plaintiff has received is $21,512.50.
For the future I am satisfied that the plaintiff has suffered a significant loss of earning capacity. He has had difficulty in completing his course as a draftsman but I am satisfied on the basis on his own evidence and that of Mr Matthews that he will do so and while he will find it difficult to obtain and hold employment due to his age and the limited success in his studies I am satisfied that he will be able to obtain some employment from time to time as a draftsman or other suitable employment in the building industry. I conclude that the appropriate deduction for retained earning capacity is 30 per cent. I am also satisfied, having regard to the evidence as to the hard nature of work as a rigger and of the plaintiff's pre‑existing back condition, that the plaintiff would not have worked past age 55 as a rigger and therefore his loss of incapacity is for a period of 17‑1/2 years. The multiplier for 17‑1/2 years is 572.4.
$803 x 572.4  $459,637
Less 6% for contingencies  $432,059
Less 30% for retained earning capacity  $302,441
For future loss of superannuation benefits counsel for the first defendant pointed out that the obligation to make superannuation contributions under the Superannuation Guarantee (Administration) Act 1992 applies only to ordinary time earnings, not to earnings inclusive of overtime. On the other hand the evidence of Ms Conduit was that superannuation contributions were based upon actual earnings. No evidence was adduced that superannuation contributions paid by the second defendant were based upon ordinary hours. I conclude that although the second defendant would have satisfied its obligation under the Act by paying superannuation based only upon ordinary time earnings in fact it paid superannuation on the basis of the plaintiff's actual earnings and it is on that basis that his loss should be assessed.
I accept the evidence of Mr Balson as to the appropriate method by which to calculate the value of the plaintiff's loss of superannuation benefits. However some changes to Mr Balson's figures are necessary by reason of my findings at fact as to the age to which the plaintiff would have worked as a rigger (55) his retained earning capacity (30 per cent) and the deductions for contingencies (6 per cent).
Using a gross salary of $1,100 Mr Balson calculated that the plaintiff's future loss would be $401,754 before making allowance for tax or superannuation benefits and the discount for the present value of those benefits. To 1 July 2018 when the plaintiff would be aged 54.66 that loss would have been approximately $168,590 using his method. Deducting 6 per cent for contingencies and 30 per cent for retained earning capacity give a figure of $110,932.
Mr Balson calculated the past loss at $165,995. The total past and future loss is therefore $276,927.
"Benefits received over age 55 are tax free up to $100,696. Amounts above this threshold are taxed at 16.5 per cent, which incorporates a Medicare levy of 1.5 per cent." (Page 3 of Mr Balson's report dated 27 February 2001.)
Lost benefit  $276,927
Less tax on lost benefit  $ 29,078
Balance  $247,849
The discount figure for a loss in 17‑1/2 years using a rate of 6 per cent is 0.361.
Present value of loss = 0.361 x $247,849
= $89,473
On the basis of Mr Balson's evidence I calculate the plaintiff's loss of past and future superannuation benefits at $89,473. For past and future gratuitous services I allow a global sum of $2,000 and for future medical expenses I allow a global sum of $1,500. Special damages were agreed at $40,790 all of which were paid for by the second defendant and so no interest is allowable on that item.

Summary

In summary therefore I assess the plaintiff's damages as follows:
General damages  $ 40,000
Past loss of earnings  $209,292
Income tax paid on past loss of earnings  $ 21,513
Interest on past loss of earnings  $ 20,246
Future loss of earning capacity  $302,441
Special damages  $ 40,790
Future treatment costs  $    1,500
Past and future loss of superannuation  $ 89,473
Past and future gratuitous services  $    2,000
TOTAL  $727,255