Scott v Standard Group Pty Ltd[1998] QDC 2

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 30th day of January 1998

By this action the plaintiff claims damages in respect of an injury alleged to have been suffered by him in the course of his employment on 21 January 1992. He claims that on that occasion while walking out of a store room at the defendant's premises he slipped on some bags which were on the floor and fell to the ground. Liability and quantum are both in issue. There was also an application for leave to reopen on the part of the defendant. Before closing his case counsel for the defendant applied for an adjournment to seek further evidence. That was refused, but on the basis that judgment was to be reserved anyway and, if the defendant came into possession of further evidence, it could apply to have the trial reopened. Such an application was made, initially on 30 April 1997, when it was adjourned to 27 May 1997. In order to place the additional evidence sought to be led by the defendant if the trial is reopened in context, I will deal with the circumstances of the accident and the evidence at the trial.

Circumstances of the accident

The defendant at the relevant time carried on a pest control business from premises at 349 Montague Road, West End. The plaintiff who had had some experience as a pest control technician was employed by that company for a period of three to four months prior to Christmas 1991, and was re-employed on 8 January 1992 full-time until January 21 1992: p. 4. On that day his employment was terminated by the defendant (p. 94), but he was required to wash his truck before he actually ceased work. In order to do that he required some chemicals which were kept in a store room at the back of the downstairs section of the defendant's premises. He went down there and found that it was locked, went upstairs and spoke to another employee, Peter Conlon, who came with him, unlocked the store room and went inside followed by the plaintiff. Mr Conlon found the truck wash and gave it to the plaintiff and the two of them walked out of the store room: p. 5. According to the plaintiff as they walked out of the store room they were chatting together and the plaintiff had turned his head slightly to talk to Mr Conlon when his right foot slipped and he fell to the ground. He said that he slipped on some hessian bags which were to the left of a large drum which was itself sitting on some hessian bags: p. 6. He was at the time walking from the store room towards an open door at the end of the downstairs section, to get to his truck which was parked outside. The drum contained curing oil, but the plaintiff's evidence was that he slipped on a loose bag rather than on any spilled oil. He said the area under the building was pretty messy: p. 7. After the fall he found some metal washers under the bag where he had slipped: p. 8. The general configuration is shown in a diagram which he prepared: Exhibit 5.

The defendant called Mr Conlon. He confirmed that on 21 January the plaintiff had spoke to him about some truck wash which was kept in the chemical room which was locked, and that he went down to open it: p. 80. Mr Conlon said that the plaintiff followed him down the stairs to the door and went in, and the plaintiff led the way out of the store room: p. 81. Mr Conlon thought that there was a hessian bag which held some rags kept in the vicinity of the drum, but could not say whether the drum itself was standing on hessian sacking: p. 81. Mr Conlon said he saw the plaintiff fall at a time when the plaintiff was just to the left hand side of the drum, and he did later notice some hessian on the floor near there: p. 82. He could not recall which way the plaintiff's head was facing immediately before he fell. He could not say whether the drum was sitting on hessian, but the hessian bag he saw was to the left of the drum, and was usually kept next to it: p. 85. The drum was usually kept close to the bottom of the stairs: p. 84. Mr Conlon described the area downstairs as an organized mess: p. 86.

The defendant also called Mrs Letts, who was the managing director of the defendant at the time. She said that on 21 January 1992 she sacked the plaintiff, as a result of dissatisfaction with his work, complaints from customers, and feedback from other employees: p. 94-5. He was told to clean out his utility and wash his vehicle and then finish up. She also said that there was a forty-four gallon drum sitting on a hessian bag or bags, which had been there for some time: p. 97. She said the hessian stuck out about six inches all round, and that it was stuck to the floor: p. 98. She was not aware of anyone else having tripped over it: p. 98. Mrs Letts said that there were bags of rags which they used to buy, but they were not hessian bags and she had no recollection of a hessian bag containing rags: p. 102.

Since the accident the business of the defendant has been transferred to another company, but is continuing and other pest control operators are now employed; the business is larger than it used to be: p. 105. The premises have changes somewhat however; indeed I was provided with some photographs apparently taken in February 1995 showing part of the area downstairs cleaned out, and with the chemical room demolished: Exhibits 15, 16. The chemical room was in the area where the various pieces of timber are stacked to the right hand side of the photograph Exhibit 15: p. 105. Next to the stairs there is a smaller room, with the door open, which was used as a different store room. The photographs demonstrate what was fairly obvious anyway, that Exhibit 5 is a rough sketch and is not to scale.

I think it is fair to say that the credibility of the plaintiff was put in issue more particularly in relation to quantum issues, but it is to some extent relevant to the question of liability. Mr Conlon's evidence provides confirmation of the fundamentals of the incident; that the plaintiff had been in the chemical room with Mr Conlon, had just left it, and was walking away from it towards the door when he suddenly fell heavily on his back just as he was passing the drum. There is some difference between Mr Conlon and Mrs Letts, about matters of detail, but I think it is fairly clear that there was some hessian apart from what the drum was standing on, as Mr Conlon supports the plaintiff's evidence that there was another loose piece of hessian in the area where the plaintiff slipped.

Analysis of liability

It was not submitted on behalf of the defendant that I should find that the accident had not occurred. I was however asked to make the following findings:

The plaintiff in his evidence said that it was not possible to walk to the right of the drum (p. 6) but he was walking to the left of the drum, and his evidence did not indicate that there would have been any difficulty in walking between the hessian and a trailer that was parked under the building, and was some distance in front of the drum: p. 68. Although he thought at one stage that there was three feet or more of hessian to the left of the drum where he slipped (p. 67) he obviously has no recollection of the appearance of the area prior to his fall, and whatever was there would have been disturbed by his fall anyway. Mr Conlon's evidence supports the view that there was some loose hessian, probably a bag, beside the drum where the plaintiff fell. In view of the evidence of Mrs Letts it may not have been a hessian bag used for keeping rags in. It may be that the drum had been moved and in the process one of the bags that the drum had previously been standing on had been left loose. I think that there is no great difficulty on the evidence in making the findings 1, 2 and 3, and something like finding number 4 so long as it is a reference to the general rather than the precise position of the drum. I think it is correct to say that in a sense the accident occurred because the plaintiff did not look where he was going, in the sense that if he had been keeping a proper lookout he would obviously have been able to see the hessian and avoid it, but the accident also occurred because the loose hessian was there in a position which, if it was not actually a defined path, was certainly where one would naturally walk when proceeding from the chemical room to the area outside the downstairs part of the premises, which is the sort of journey one might reasonably expect employees to be required to make from time to time. It was not suggested that there was any reason why the loose hessian needed to be there. Overall the situation in relation of liability is fairly simple and straight forward, and does not involve the resolution of any major conflict of evidence.

There is an allegation in the pleadings that the plaintiff deliberately fell intending to inflict injury on himself. Mr Conlon's description of the fall did not make it sound like something which was staged or deliberate, there is no evidence that the fall was deliberate, and it would seem to me to be a very odd thing to do. I reject this allegation.

I think that the defendant was negligent in that it failed to maintain a safe place of work and thereby exposed the plaintiff to unnecessary risk of injury. There was no good reason for the loose hessian to be there, and it would have been easy enough to remove it to a place where it did not pose a risk, which I think was foreseeable, that someone could slip or trip on it. That is particularly the case since people in that area would be likely to be carrying things, and might be distracted by their work, although these were not I think significant considerations with this plaintiff. I think there was negligence at common law.

The plaintiff also alleges a breach of section 9 of the Workplace Health Safety Act 1989; I think that this was made out essentially for the same reason as the claim at common law; the defendant has not discharged the onus of showing that there was no reasonable alternative to having this hessian where it was on the floor, and indeed it did not attempt to do so.

Contributory negligence

The question of whether an employee such as the plaintiff is guilty of contributory negligence depends on whether he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. As was pointed out there, his conduct must be judged in the context of the finding that the employer was in breach of its statutory obligation to ensure his health and safety, by exposing him to unnecessary risks. The question is whether in such circumstances the conduct of the plaintiff amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage (ibid). Some emphasis needs to be placed on the word “mere”, because inadvertence inattention or misjudgment and contributory negligence are not mutually exclusive categories. Inadvertence inattention or misjudgment can amount to contributory negligence: the question of whether it does so depends on the test posed by Windeyer J in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37. As explained by the majority in McLean v Tedman (1984) 155 CLR 306 at 315, some temporary inadvertence, some inattention, or some taking of a risk will be excusable if in the circumstances it is not incompatible with the conduct of a prudent and reasonable man. The issue is ultimately one of fact. The question is whether the plaintiff acted as a reasonable and prudent man in the circumstances in which he was injured: Alexandrow v Tully Cooperative Sugar Milling Association Ltd (Appeal 65/88, Full Court of Queensland, 5.6.89, unreported) per Ryan J. p. 7, Connolly J. agreeing. In the same judgment His Honour rejected the proposition that a person cannot be guilty of contributory negligence if he shows lack of reasonable care for his own safety in carrying out a dangerous operation as part of his employer's business.

In the present case I think that there was more than mere inattention or inadvertence. Looking where one is going is an ordinary precaution which is a normal part of life for everyone. A failure to take obvious and natural precautions can be contributory negligence: OUT v. Davis (Appeal 3691/97, 5.12.97). Although the plaintiff said, and I accept, that he did not see the bag or the hessian in the relevant area prior to the accident, he was not in a position where he knew or had reason to believe that the area was clear. He must have been walking fairly close to the drum, and the presence of the drum must have been obvious and the drum had been for a long time sitting on hessian bags so that the idea of there being some hessian in the close vicinity of the drum should have been know to him. The plaintiff was not at the time when he was walking past the drum distracted by anything he was required to do in the course of his employment; he was only carrying 3 litres of truck wash: Exhibit 4. If he was looking away because he was chatting with Mr Conlon, that was simply a matter of a private chat, and it was his choice to turn his head slightly when he was speaking rather than watch where he was going. The plaintiff was not distracted by something he was required to do, nor was he engaged repeatedly in an activity which required some rudimentary precaution which might occasionally be overlooked. Although the general path taken by the plaintiff was dictated by the layout in the area downstairs at the defendant's premises, the precise path was a matter for the plaintiff's choice. I think there was contributory negligence on the part of the plaintiff in failing to watch where he was walking.

With regard to the question of apportionment, it is recognised that the duty of care on an employer was not a low one, and the plaintiff's negligence in this case did not endanger anyone but himself. On the other hand the presence of the bag on the floor next to the drum did not constitute a major hazard; I would not have expected such a thing to be particularly slippery, but obviously it was possible to fall on it. The area was lit, but the light coming in through the end door was not so bright as to make it difficult to see anything else: p. 66. In all the circumstances I think it is appropriate to apportion responsibility for the fall ¼ to the plaintiff and ¾ to the defendant.

There is nothing in the further evidence which the defendant seeks to lead if the case is reopened which would bear directly on the issues relating to liability; in so far as it is indirectly relevant, by relating to the plaintiff's credibility as a witness, I do not think there is any substantial evidentiary issue on which the plaintiff and the defendant's witnesses are in conflict which is of any importance in resolving the question of liability.

Quantum

Immediately after he fell the plaintiff was in pain (p. 8) and complained of pain to his back: p. 86. The plaintiff was taken to the West End Medical Centre (p. 9) where he was given Valium tablets and told to have bed rest; he was suffering from severe pain and he could not straighten up properly. He was seen on 3 April 1992, about ten weeks after the accident, by Dr Boys, an orthopaedic surgeon, who reported to the Workers' Compensation Board that the plaintiff was suffering acute back pain with lumbar spasm without significant evidence of neurological impairment, which then prevented his employment as a pest control operator: Exhibit 17. He thought the condition would be likely to resolve progressively with time, physiotherapy and muscle conditioning. X-rays showed no evidence of significant degenerative change.

The plaintiff gave evidence that on 4 February 1992 (p. 70) he had slipped down a couple of stairs at a home unit in Chermside where he used to live: p. 13. He described it as a jar rather than a heavy fall, which produced some additional pain which did not seem to last very long.

The plaintiff was seen by Dr Livingstone, an orthopaedic surgeon, for the purposes of a report to the Workers' Compensation Board on 29 July 1992: Exhibit 13. The plaintiff reported that physiotherapy had helped for a time, but subsequently his condition had deteriorated and he had chronic back ache present most of the time in the lower thoracic and sacral region, aggravated by bending or lifting. He had difficulty with sitting, sleeping, walking particularly uphill, and was taking Valium, and anti-depressant and Clinoral for pain. Dr Livingstone thought at that stage there was little residual disability from the fall.

In January 1994 the plaintiff was referred by a GP to a Dr Slinger, a spinal surgeon practicing in Perth. At that stage the plaintiff was complaining of low back pain aggravated by lifting and walking any distance, and restricted bending which limited his golf and similar activities. Dr Slinger thought the plaintiff had suffered a soft tissue injury in the accident and that the present symptoms would continue, and suggested exercises to strengthen muscles and avoiding provocation of the condition, together with symptomatic treatment of heat massage and mobilization: Exhibit 3. Dr Slinger saw the plaintiff again for the purposes of the report to the solicitors on 13 September 1995. There was still discomfort in the low back restricting bending, pain with sexual intercourse, limited sitting and walking, and causing him to avoid lifting. He was depressed because of the break-up of a relationship and an inability to return to sporting activity or find employment. He was talking one Panedine Forte for pain per day, and had undertaken a spinal exercise in an education program at the Royal Perth Hospital. He was getting assistance with vacuuming and some heavier shopping. Dr Slinger then thought that the plaintiff's condition was likely to continue, and would permit him only to do work of a light nature. He put the residual disability as 10% loss of function of the spine: Exhibit 2.

In February this year the plaintiff was seen for the purposes of a report by Dr Day, an orthopaedic surgeon, at the request of his solicitors, and Dr Nutting, an orthopaedic surgeon, at the request of the defendant's solicitors. Dr Day thought that the plaintiff was suffering soft tissue injury of the thoracolumbar spine, and that he had prior to the accident been suffering from a fairly mild developmental abnormality of the spine called Scheuermann's kyphosis, which had not been producing symptoms, but which had been aggravated and was contributing to his current problems: Exhibit 4. He put the disability at the present time as 10% of the entire body of which half was due to the pre-existing disease, and thought that this level would be permanent. He felt the plaintiff would be capable of performing the duties then being carried on indefinitely.

Dr Nutting in his report Exhibit 14 said that the plaintiff had complained of chronic constant pain in the back which at times became worse he had built up his walking tolerance to 4-500 yards, but had problems with some types of swimming, coughing, and various activities. He thought that the plaintiff had suffered a muscular ligamentous injuries which had persisted for a surprisingly long time, but on the basis of the continuing complaints of pain and loss of movement assessed permanent impairment of between 5 and 10% of the whole person. My impression is that Dr Nutting really could not find a satisfactory explanation for the plaintiff's condition, and therefore could not offer very much in the way of prognosis.

The plaintiff in evidence said that he still had constant pain in the back, from about the middle of the back going down to the tail bone, although its intensity varied; sitting or standing for too long, lifting, bending, exercising made it worse: p. 10. At its best it was mild pain, and at its worst was so severe the plaintiff would lie down; this occurred once every one to two weeks on average. He took analgesics three to four times a day, which helped a bit. He referred to his various attempts of rehabilitation: p. 11. Prior to the accident he had been an active sportsman, playing golf, lawn bowls, ten pin bowling and fishing, but had not been able to resume regular involvement in any of these. He used to be very fit, and had become depressed at his inability to maintain his fit and active life. He was taking antidepressants for about six months after the accident. His back problems caused difficulty with sexual intercourse, which was continuing; a relationship broke up because of this.

In oral evidence Dr Slinger said that the developmental condition of the spine, which could be described as Scheuermann's disease, was in his opinion no consequence (p. 28) and did not pre-dispose him to pain in later life any more than a normal spine: p. 31. He thought that the origin of the plaintiff's symptoms was the area of the lumbar sacral junction, rather than in the area of the congenital abnormality which was at the thoracolumbar junction: p. 31. He thought that it was unlikely there would be any further improvement (p. 32) and that a fall the plaintiff suffered on 4 February 1992 was likely to have made the condition worse. He made the point that the more injuries one has the more likely it is that the condition will become chronic, which is really a prospective statement, but it seems to follow that when a condition has become chronic that state of affairs was caused by all of the injuries suffered.

Dr Day in his oral evidence modified his assessment of the extent to which the plaintiff's current disability was attributable to his pre-existing Scheuermann's disease, and said that in the light of further research he now thought that 10-15% impairment was more appropriate: p. 42. He produced an article on the subject (Exhibit 11) which indicated that it was rare for the particular version of this condition suffered by the plaintiff to require medical attention through the natural progression of the disease. Dr Day was referred to the various reports of where the plaintiff's pain was located in his back, and the fact that the earlier reports tend to put the pain higher in the back than the later reports; he did not think this variation was significant: p. 52. He thought that the fall down the stairs could have contributed and could still be contributing to his overall symptoms: p. 54. He could not be more precise than that it was a possibility: p. 58.

In the witness box Dr Nutting confirmed his position that he could not give a medical explanation for the plaintiff's continued symptoms, but did not find that particularly suspicious: p. 111-12. He did not think that the differences in locating the source of the pain was significant: p. 118.

It seems to me overall that there is little significant conflict left in the medical evidence, or reason to think that matters on which the doctors do differ are significant. It does seem that any discount to allow for the possibility that, apart from this accident, the plaintiff's spine might have caused problems in any case should be slight. I do not think that any discount be allowed for the possible continuing effect of the second incident, when the plaintiff slipped on the steps, because the plaintiff said he was hobbling a bit at the time (p. 75), and it is I think probable in the light of the evidence of Dr Slinger that the plaintiff's previous injury had affected his capacity for negotiating stairs, and was probably therefore a cause of the incident on the stairs. That incident therefore does not break the chain of causation, nor is it appropriate to assess damages on the assumption that incident would have happened even if the relevant accident had not.

All of the medical evidence however is heavily dependent upon the reliability of the plaintiff's reports of symptoms. This emerged most clearly from the evidence of Dr Nutting, but I think that he and Dr Slinger are really just looking at the same phenomenon in a different way; some people who have suffered what seemed to be at the time not very serious injuries go on to complain about continuing pain for a very long time without any pathology which can be demonstrated objectively. The ultimate significance of the medical evidence therefore depends heavily on the assessment of the plaintiff as a reliable reporter of symptoms.

The plaintiff gave evidence of his employment history both before the accident (Exhibit 6) and after the accident (Exhibit 7). The plaintiff said he left school in 1972 after completing Year 10 (p. 16) and then was in the Army until 1978. After a short period in a meatworks he was employed by Stewart's Pest Control until 1980, after which he went into a variety of occupations as a salesman until 1986 when he set up a business White Night Hygiene Services, which was a pest control operation: p. 17. He then worked for another pest control company for a few months in 1990, and then worked as a hearing tester for about eight months. He then had a brief period with another pest control operator before starting work for the defendant in about September 1991. This evidence is consistent, at least in the period from 1 July 1990, with the plaintiff's tax returns: Exhibit 8. The plaintiff's pre-accident employment does not appear to be controversial.

The plaintiff said that after the accident he returned to Western Australia when in December 1992 he set up a business Peepers Security which involved selling and installing various security products to homes. This lasted about four months, and if anything lost money: p. 18. He also had difficulty with some of the work and the walking connected with door to door canvassing. This business consumed the lump sum settlement he was paid in respect of his back when workers' compensation ceased in December 1992. In November 1995 he began work again in the pest control industry, but found that there were some things that he could not do, such as crawling underneath houses. Nevertheless he remained in that employment until August 1996, when he went to Boomerang Pest Managers, doing similar work, for about a month, then in October 1996 he started work with Aaron Lee Pest Control where he did pest control and selling work. That employer is aware of his back condition and accommodates it by limiting the sort of work that the plaintiff is required to do: p. 19. He remained in that employment at the trial. He hoped that his present job was permanent: p. 71.

The plaintiff was on unemployment benefits from April 1993 until November 1995 (p. 71) receiving about $300 per fortnight. Exhibit 8 indicates that the plaintiff received a total social security benefits during the year 1994-95 of $8,415.41, and $4,914.00 during the period from July 1995 until March 1996, some time after he started work again. A group certificate issued by Ausmic Environmental Industries (WA) says that the plaintiff commenced employment on 16 January 1996: Exhibit 8. This is not consistent with Exhibit 7, but the period of employment given in Exhibit 7 is longer and it may be that there was some previous employment not covered by the group certificate. During the period of 24 weeks covered by the group certificate the plaintiff received gross income of $15,162.00, the equivalent of $632.00 gross per week. Broadly speaking however the picture painted by the plaintiff of his post-injury employment was that once his workers' compensation was ceased he attempted to work in his own business without success, and was then unemployed for about 2½ years, but for a bit over the year prior to the trial he had been working as a pest control operator and had found a position where he was able to work within his capacity in that industry.

There was not much cross-examination about post-accident employment during the trial (p. 71), but this was the main focus of the further material in respect of which the defendant sought to re-open the trial. This is therefore a convenient point to turn to that issue.

Application to re-open

At the conclusion of the second day of the trial counsel for the defendant asked to have the trial adjourned on the basis that he had, during a conference earlier that day with a witness (whom he had called that morning), been told things that the witness had not told him previously, which if true would have a substantial impact on any award of damages made. They were however not matters which the witness could give evidence of personally, and she did not do so; they required further enquiries to be made in Queensland and in Western Australia. In response I indicated that I was not proposing to give an ex-tempore judgment anyway and that if the defense was able to turn up something of significance it could apply to have the matter re-listed “but I think it would need to be fairly significant.” I was not prepared to adjourn the trial simply on the basis that the defendant wanted to make further enquiries which were thought to be likely to be fruitful. Thus the application for adjournment was refused.

On 30 April 1997 I heard an application to re-open the trial, but after considering the affidavit material read on behalf of the defendant I thought the application was premature. Although the defendant had located one additional witness it wished to call, it was still making enquiries and foreshadowed further evidence given further time. It also seemed to me at that stage that the affidavit material did not adequately account for the failure of the defendant to call this evidence to the trial. For reasons which I gave at the time the application was adjourned until 27 May 1997. On that date affidavit material was read, the application was argued and reserved.

As I indicated previously in my opinion on the hearing of an application to reopen the trial the applicant should be able to read affidavits from the additional witnesses sought to be called which would be able to stand as the evidence of those witnesses, so that the court can see exactly what further evidence is sought to be called, and affidavits explaining why that evidence was not called during the trial. As of 30 April 1997 the defendant's affidavit material did not cover these matters.

On 27 May 1997 a number of affidavits were read. The further evidence which the defendant seeks to lead is set out in these affidavits, and may be summarized as follows:

In response the plaintiff put before the court an affidavit by Ms L Rankin, the operations manager of Guardian Pest and Weed Control Services Pty Ltd who said that she was the person who hires and fires pest control operators for that company and would be able to identify any pest control operator employed by that company since October 1988. She was shown three photographs (which were identified by the plaintiff's solicitor as being photographs of the plaintiff) and deposed that on consideration of these photographs “I am sure that no individual of the same or similar appearance of the person depicted in the photographs exhibited hereto was employed by Guardian Pest and Weed Control Services Pty Ltd during the period that I have been employed by the company.” (para. 5). The three photographs in question are not entirely satisfactory since in two of them the plaintiff was wearing something on his head, and in two of them he is wearing dark glasses. In one he appears to have a moustache which he was not wearing while he was in court, but that does not appear in the other two. I would not have recognised one of the photographs as a photograph of the plaintiff, having seen him in court, but I would have recognised him from the other two.

Applicable law

It seemed to be accepted on both sides that the law is as stated in the decision of the Court of Appeal of New South Wales in Urban Transport Authority v. Nweiser (1992) 28 NSWLR 471. That decision has since been referred to with evident approval by the Court of Appeal in Queensland in Barra Pty Ltd v. Ramsey (Appeal 6317/96, 13.5.97). The leading judgment is that of Clarke JA, with whom the other members of the court agreed, who said at page 476 that the exercise of the discretion to allow a re-opening depended essentially on the trial judge's view of whether the interest of justice were better served by granting or refusing it. This is similar to the approach adopted by the High Court, in relation to a somewhat different issue, in State of Queensland v. J L Holdings Pty Ltd (1997) 71 ALJR 294. In Nweiser there was an issue as to whether or not the plaintiff had been involved in an accident at work at all; two other employees of the defendant said that the accident described by the plaintiff, slipping when he was attempting to lift something which was too heavy for him, had not occurred at all, the job having been completed without incident. The trial judge had not been overly impressed by the plaintiff as a witness, but after a careful consideration of the evidence of the three witnesses concluded that he preferred the evidence of the plaintiff, largely because of the significance of a prolapse of a disc demonstrated on the CT scan some five years after the accident: p. 473. The case therefore was one where the question of the plaintiff's credibility was crucial to whether the plaintiff succeeded or failed in the action, and where the decision in relation to credibility was fairly finely balanced.

His Honour said that likely prejudice to the other party to the proceedings, and the reasons why the evidence was not led in the first place, were relevant considerations (p. 478) and treated as relevant the fact that the matters sought to be led had been raised in cross-examination so there was no question of surprise: p. 475. In that case there had been a deliberate decision not to call the evidence earlier, but that was said to be based on a misapprehension of the law or the facts on the part of counsel rather than a decision made for tactical reasons: p. 478. His Honour acknowledged the public interest in finality and litigation, and the need for a limit on the number of issues which are to be contested at the hearing, which generally excludes evidence contradicting a witness's testimony in cross-examination on matters going to credit: p. 476. His Honour also said that it was relevant if the evidence sought to be led “could not possibly affect the outcome of the trial or is peripheral to the main issues”: p. 476. I think that is a statement which needs to be understood in the context of that particular case, where the evidence related to the issue of liability, and the effect of making a difference on that issue would have been that the plaintiff failed in the action completely. The situation may be different where the evidence is directed to the question of quantum, and the difference which it would make becomes a matter of how much damages are assessed at, rather than whether the plaintiff succeeds or not. I do not think that His Honour was intending to say that, as long as the evidence would produce any difference in the amount of damages assessed, a trial judge would not be justified in declining leave to re-open. It may be necessary to show that the case presented at the trial has been suddenly and materially falsified: Mulholland v. Mitchell [1971] AC 666 at 676.

It seems to me with respect that this approach is not as rigorous as that adopted by Toohey J in R. v. AMIEU, ex parte Ferguson (1986) 67 ALR 491 where His Honour said (at p. 493):

This statement was referred to with apparent approval by MacKenzie J in Re Diamond Head Pastoral Pty Ltd (Application 214 of 1993, 21.9.93, unreported). It seems to me that test is expressed to require satisfaction of all of the elements stated, and that if it had been applied in Nweiser (supra) the evidence would have been excluded because it would not have been possible to satisfy the requirement that the evidence could not by reasonable diligence have been discovered before. Although in one case the application to re-open was made during addresses, and the other was made after judgment had been reserved, I do not think that there ought to be any difference in principal; if anything a court should be more willing to re-open if judgment has not yet been reserved. I also think that in the present case, where the application initially made was one for an adjournment, and that application was really refused on the basis that if necessary the case could be re-opened before judgment was delivered, I should not apply a more rigorous test to exclude the evidence than would have been appropriate on the basis of the application originally made. It must be recognised however that at that stage the defendant was not in a position to identify precisely what evidence it sought to lead.

Counsel for the defendant relied on a decision of the Supreme Court of the Australian Capital Territory, Nikoloski v. Ridge Consolidated Pty Ltd (1994) 116 FLR 192, a decision of Higgins J. In that case there was an issue in a personal injury case as to whether or not there had been hand railing around a work platform and the plaintiff fell from it. The plaintiff said that there was not, but the defendant called another employee to say that there was one; indeed he and the plaintiff had erected it. After the trial the plaintiff told his lawyers of another employee who would support the plaintiff's story, and the question was whether the trial could be re-opened in order to enable this evidence to be called. The judgment records that it was not suggested in cross-examination of the defendant's witness that his evidence was in any way inaccurate or mistaken. Since it was inconsistent with the plaintiff's evidence, it is a little surprising the plaintiff's counsel did not at least cross-examined to put the plaintiff's version, but that may not have occurred. In any case, the defendant was clearly on notice that the plaintiff's case was that there was no hand rail.

Reference was also made to the decision of the High Court in Smith v. NSW Bar Association [No.2] (1992) 66 ALJR 605, where the majority said at page 608 that, on an application to re-open if there was a deliberate decision not to call the additional evidence during the trial ordinarily that would tell decisively against the application (which is not relevant in the present case) but if that hurdle was passed and the case was one simply where the hearing was complete but judgment had not been delivered, “it is difficult to see why..... the primary consideration should not be that of embarrassment or prejudiced to the other side”. That approach seems to suggest that the principal consideration is whether it is unfair to the other party to call the further evidence, and seems to involve giving rather less weight to the public interest considerations referred to earlier, and considerations as to the significance of the evidence, both in terms of the effect it would have if accepted, and its apparent cogency. In so far as its suggests, that when an application is made before judgment to re-open in order to lead further evidence, and that evidence was not the subject of a deliberate decision during the trial on the part of the applicant not to lead the evidence, the application should ordinarily be allowed unless to do so would be in some way unfair to the other party, by causing some prejudice or embarrassment, that seems to be an approach which is not consistent with the other authorities to which I was referred, and not one which gives any real weight to the importance of finality in litigation.

Consider a modified version of the situation in Nikoloski (supra): what if the plaintiff had already called one independent witness to support his story that there was no safety railing, and the defendant had called his witness, and after the trial the plaintiff happen to discover that there was another independent witness who supported his story? Would re-opening have still been justified? What if the plaintiff had already called two such witnesses, or three, or four, or ten? Obviously a point would be reached where one would think even the majority in the High Court in Smith would say that, notwithstanding the absence of embarrassment or prejudice to the other side, and the fact that the evidence was admissible and relevant and, if accepted, bore directly on an issue which was crucial to the success or failure of the plaintiff's action, a point had been reached where enough was enough. Would it make any difference if the trial judge was already inclined to accept the evidence of the witnesses already called, or if he was inclined not accept them? I think these are all relevant considerations, and it seems to me, with all due respect, that the approach adopted by the majority in Smith is too superficial. It must be noted however that issue was not directly before the High Court; their Honours were concerned with the situation where, after a court had delivered judgment (the New South Wales Court of Appeal, apparently exercising original jurisdiction) an application was made to re-open on the ground of an error in the reasons which had been delivered, and to lead further evidence: see p. 607. The comments about the situation where the hearing had been completed with reasons for judgment not being delivered was preceded by the comment that different considerations may arise in the two situations, and it was of course the other situation which the High Court had to consider. What the court ultimately decided was that if, after judgment had been delivered, the case was re-opened because of error in the judgment, and that was one where the issue opened up by that error invited further evidence, then such further evidence should be allowed unless to do so would be unfair to the other party because of embarrassment or prejudiced caused to it: p. 609. Comments about the situation which is relevant to the present case were therefore strictly speaking dicta, dicta which do not appear to involve a clear considered opinion by the High Court on the point, such as ought to be accepted as binding. What the High Court has said is that a certain approach should be adopted in a case where a hearing has been re-opened after judgment because of error, and it may be that a similar approach is appropriate in an application to re-open the hearing before judgment.

I think that one starts from the proposition that the interest of justice require that parties be in a position to put forward their cases at the trial, and that once the trial is over it is over. The idea that after the trial there be further investigation to see whether anything said during the trial can be falsified by evidence gathered later is one which is contrary to the public interest referred to by Clarke JA, in the finality of litigation and confining the issues to be litigated. I think that these are aspects which are if anything reinforced by the modern approach to litigation. Although I do not suggest that this has occurred in the present case, parties should not be encouraged to think that they need not be too concerned about preparing a case properly for trial, because they can always continue to investigate the matter afterwards, and put before the court anything else of significance that turns up later.

One way of illustrating the situation is to consider what would happen if an application was made to lead further evidence as to the plaintiff's medical condition since the time when the matter was tried, if judgment had not been delivered within a period of a few months. If the plaintiff's medical condition had significantly deteriorated, or significantly improved, after the trial it may well be appropriate to give leave to re-open to allow evidence of this, if that would have a substantial effect on the assessment of damages. Vernon v. Bosley (No.2) [1997] 3 WLR 683. On the other hand, evidence that a plaintiff who had had a fluctuating level of pain between the date of the injury and date of trial had another fluctuation would not I think justify re-opening. Obviously an intermediate position could be reached where the question would be one of degree, and may be one of some difficulty in a particular case.

Where the evidence sought to be led is relevant only to the issue of credit, I think it is relevant to consider the importance of the plaintiff's credit in resolving liability and quantum, and also the possible significance of the additional evidence on an assessment of the plaintiff's credit. It is also relevant to consider whether the issue is one on which the plaintiff was cross-examined, and whether the issue is one on which in any event evidence directed only to credit could properly be led before the closing of the defense case, on ordinary principles. The assessment of the significance of the evidence sought to be led in relation to credit in the present case makes relevant I think the conclusions that I would arrive at on that issue without regard to the further evidence.

The main matter of conflict in the evidence was the question of whether the plaintiff had been sacked by Mrs Letts on the morning on which he suffered his accident, or whether he was, as he claimed, changed from a full-time to a part-time employee. During argument earlier I suggested that this may not have made much difference, since it seemed fairly clear from her evidence that Mrs Letts did not have a favourable impression of the plaintiff, and even if he was not sacked at that point his future with the defendant would not have been very bright if the accident had not occurred. The issue therefore does not directly have much effect on the question of economic loss, but it is perhaps of more significance in relation to the question of the plaintiff's credibility. He was cross-examined on the question of whether he was sacked, but he adhered firmly to his version: p. 62. That is hardly something upon which he could be mistaken, so a decision adversed to him on this point necessarily means that he has not been frank in his evidence in court. Although I would not be prepared to accept everything that Mrs Letts said in evidence, for example in relation to evidence she gave about the plaintiff having said he had suffered some previous injury, which she seemed to resile from somewhat under cross-examination, and some of her evidence about the detail of the layout and practice in the downstairs section of the company premises at the relevant time, I was impressed by her evidence as to the sacking of the plaintiff, and I am prepared to accept her evidence on that point. In so far as the further evidence to be led seeks to bolster her evidence on this point, it is unnecessary.

It follows therefore that I reject the plaintiff's evidence on this point. This is a matter of some significance to his credibility, as it means that I can not accept him as being wholly reliable. Indeed I think it is appropriate that I treat his evidence with some caution. This impression is reinforced by something I noticed during the trial. The plaintiff, consistently with his complaints to doctors about difficulty in sitting for any length of time, stood up from time to time while giving his evidence, about every fifteen minutes on the first day. Whilst sitting at the bar table he did this as well, although perhaps a little less often, but on the second day I noticed that in the afternoon he did not do it at all. I suppose it may be that this was attributable to some natural variation in his symptoms, or to the anaesthetising effect of counsel's submissions, but I think the more likely explanation is that he has an ability to tolerate sitting which is a good deal better than the one he was prepared to admit to in the witness box.

In these circumstances my impression of the plaintiff is not all that favourable anyway. If I had been otherwise of the view that the plaintiff was an honest and reliable witness, the circumstance that he had been convicted of an offence of dishonesty might have been of some significance in relation to his credit, but on my current assessment of the plaintiff I do not think that that additional fact has any real impact.

It also seems to me that the evidence in relation to the licences, in Queensland and Western Australia, is of no assistance. The evidence about the Western Australian licence is consistent with the plaintiff's evidence, and the fact that he renewed his Queensland licence a short time after the accident is probably easily explained by the fact that the medical opinion he was then receiving was doubtless to the effect that his condition was likely to resolve. That is certainly the opinion expressed shortly afterwards by Dr Boys: Exhibit 17. In those circumstances he could well have reasonably thought that he was likely to return to work fairly soon, and that it was appropriate to renew his licence. I would not regard that as being of significance. The fact that the licence was not renewed in February 1993 if anything supports the plaintiff's case, since it is inconsistent with his working between 1992 and 1994.

The important evidence really is that two people say they saw the plaintiff driving a truck for another pest control firm, one in 1992 and one in early 1994. At each time on his evidence he was unable to work, and this if accepted would be significant evidence in relation to past economic loss, and would also be likely to effect the significance of the opinions expressed by the medical witnesses. I think however that there are two reasons why in this particular case leave to re-open for the purpose of leading that evidence should not be given.

The first consideration is perhaps rather technical, but I do not think I should disregard it. The key to this evidence was information provided by Mrs Letts to the defendant's counsel during a conference in the morning just before she gave evidence in the trial on the second day. At that stage the plaintiff's cross-examination had been completed. The defendant's solicitors had considerable difficulty in getting any co-operation from Mrs Letts during the course of preparation for trial, and indeed she had not responded to requests that she attend for a conference until late on the first day of the trial. The solicitors therefore can not be blamed for the failure to obtain this information earlier. She however was the managing director of the defendant company, until it was dissolved by the Australian Securities Commission on 20 December 1994 (Affidavit of Mr Furlong filed 23.5.97, para. 4). The defendant was subsequently reinstated for the purposes of this litigation by an order of Mr. Justice Williams on 6 December 1995: para. 11. In practice of course the action is being run on behalf of the Workers' Compensation Board, but in theory the defendant's solicitors are appearing for the defendant company, and the action is being conducted in its interest. Where there has been inadequate preparation for trial because of a failure on the part of the defendant to co-operate with its solicitors I do not think that this is the same as where an independent witness fails to co-operate. I recognise that this does not accord with the reality of the situation, but I do not think I can disregard the circumstance that it is the defendant company which is the party to the action, and it is Mrs Letts who is in effect the embodiment of that company. Her failure to co-operate is the defendant's failure to co-operate, and where the information now sought to be put before the court was not available earlier because of the defendant's own failure I think that the court should be much less willing to allow the defendant to re-open to put the evidence in late.

The other consideration is that the evidence sought now to be led is not decisive or compelling. In view of the evidence from Ms Rankin, who denies that the plaintiff was employed by the company, and who was apparently quite independent, there is likely to be some real issue if the matter is re-opened as to the reliability of this identification evidence. Bearing in mind that the two sightings, if they occurred, must have been about eighteen months apart, so that if this evidence is correct it means the plaintiff must have been employed by Ms Rankin's company for a long time, her statement, if repeated at the trial and not shaken in cross-examination, would I think be a serious obstacle to acceptance of the further evidence sought to be led on behalf of the defendant. That depends on identification evidence from people who can not have known the plaintiff particularly well, having been at best colleagues sharing the same employer for a period of a few months, during which period most of the work done by these people would have been done away from each other. Neither Mr Le Noel nor Mr Henson would have had much opportunity to become particularly familiar with the plaintiff's appearance, and the evidence of sightings of him driving trucks does not suggest there was necessarily a good opportunity to identify the person concerned on these occasions. Identification evidence can give rise to all sorts of difficulties and is notoriously suspect; it has the common characteristic that the person who makes the identification may be quite convinced that it is accurate, even when it is not: see (1984) 58 ALJ 509.

I am not of course seeking to resolve the issue just by reading the affidavits; the point that emerges however is that re-opening the case to hear this evidence will simply generate a further issue on which there will be a conflict of evidence which I would have to resolve. It would not really assist in resolving the issue as to the plaintiff's credibility; rather it would be another issue which would itself largely turn on an assessment of credibility. I think there is a difference between a situation where the fresh evidence sought to be led is not only of importance to the final outcome but is also cogent, and where the fresh evidence will simply produce another difficult factual issue to be resolved on the assessment of credibility and reliability of more witnesses. The best case for re-opening after trial is when one party comes up with a “killer point”, and in the circumstances this is not a “killer point”.

There is also the consideration that for part at least of 1994 the plaintiff was living in Perth. He was seen by Dr Slinger “recently” when that doctor wrote his report at 22 January 1994: Exhibit 3. He was also seen again in Perth by Dr Slinger on 13 September 1995. The plaintiff was referred to Dr Slinger by a GP at Cannington in Western Australia. That suggests that by January 1994 the plaintiff was living in Perth, a circumstance which makes it I think less likely that he was working for Guardian Pest and Weed Control Services in Brisbane soon afterwards, particularly if that employment started in late 1992.

There is also the consideration that even on the plaintiff's case he had some capacity to work as a pest control operator in late 1995. Therefore even if he was working somewhat earlier than this mere will not be a dramatic effect on the assessment of damages. This does not seem to be a case where it is suggested that the plaintiff has nothing wrong with him, or that the plaintiff has been greatly exaggerating his disabilities. The plaintiff has been examined by a number of doctors, and all of them seem to think that the plaintiff has some significant disability in the spine. When Dr Boys saw the plaintiff a few months after the incident he thought that clinical findings were consistent with ongoing acute back pain, which at that stage precluded employment as a pest control operator: Exhibit 17. Both Dr Slinger and Dr Day, who specialize in the spine, support the proposition that the plaintiff has a significant disability attributable to this incident, and Dr Nutting supports the view that the plaintiff has a significant disability, although he is not confident about its origin. It is only Dr Livingstone who thought that the plaintiff had little in the way of residual disability by July 1992: Exhibit 13. It may be that Dr Livingstone was influenced by the fact that most people with the plaintiff's condition do recover reasonably quickly, and it is only a fairly small minority in whom the symptoms persist as long as they have with this plaintiff. Nevertheless that can occur, and the doctors think that it has occurred in this case. The significance of the evidence sought to be led is principally in relation to the effect this has on the plaintiff's capacity to obtain employment as a pest control operator, and on the reliability generally of his evidence. The former is of less significance in view of the fact that the plaintiff has ultimately obtained some employment as a pest control operator anyway.

In all the circumstances it seems to me that the considerations weighing against the re-opening of the trial to receive this further evidence outweigh those considerations in favour. The considerations are by no means all one way, and the case is by no means clear, but I think that in this case the balance comes down against the defendant.

So far as the issue of prejudice is concerned, that must relate to the prejudice caused by the fact that this evidence was not led at the time when it ought to have been led, that is during the party's case at the trial. The effect that the evidence would have on the outcome can not be a relevant form of prejudice, because it has been said elsewhere that this is a factor which is relevant in the sense that the greater the effect on the outcome the more the appropriate it is to re-open to receive further evidence: Nweiser (supra) at pp. 476-7. If it were otherwise the more significant the fresh evidence sought to be led the more it would prejudice the other party's case and therefore the less willing the court should be to receive it. The prejudice associated with a re-opening of this trial would be further expense to the plaintiff, including in his case having to fly over from Perth where he is now living, but that could presumably be adequately compensated for by a properly framed order as to costs. There could however be further consequences; the time spent away from his employment might jeopardise that employment, and might make the employer look less favourably on him even if it did not lead to his actual dismissal. In circumstances where he is I think to some extent protected in his present employment, that could well be a significant effect although it might not occur immediately and it might be very hard for the plaintiff to prove that it had ever occurred. In addition re-opening the trial will involve a certain amount of personal disruption to the plaintiff, and additional stress and inconvenience.

There is also the consideration that the allegations as presently formulated are very vague, and therefore would be hard for the plaintiff to answer. The statements by Mr Henson are devoid of particularity, and I should assume that he would be unable to provide any further information in the witness box. The defendant was to put the evidence sought to be led on affidavit, and I think I should proceed on the basis that all that he can say is what is contained in the affidavit. The evidence from Mr Le Noel is nearly as vague. This makes it very difficult for the plaintiff to call evidence to show that he could not have been where he is said to have been on the relevant days, or to call evidence from customers who are suppose to have been treated by the plaintiff to say that he was not the person who attended at their premises. I have had some doubt as to whether this is relevant prejudice, since the evidence could have been led in this form at the trial, and the plaintiff would have had the same difficulty meeting it then. I think however that the fact that the evidence sought to be led is in this respect lacking in particularity is a relevant consideration, either as constituting prejudice or because it detracts from the force of the evidence the defendant is seeking to lead, and in that way weakens the case for re-opening. Overall, if it is just a matter of prejudice to the plaintiff, I think there is enough prejudice to justify refusing the application. However, on the basis of balancing competing considerations, which I think is the correct test, in my opinion the balance is against re-opening the trial, and the defendant's application to that end is refused.

Assessment of Quantum

Dr Slinger was of the opinion that the plaintiff was fit for work of a light nature, such as general office duties, retail sales, carpark attendant, driveway attendant, light store person or similar: Exhibit 2. Dr Day was of the opinion that the plaintiff would be capable of performing light duties in pest control in the long term: Exhibit 4. The plaintiff in the past has had a somewhat varied employment history, and that may well be his pattern in the future. The plaintiff could still do some of the sort of work he has done in the past, for example the work he was doing for Val Morgan Advertising: p. 37. No doubt the back problems will make it more difficult for him to obtain employment, but I think the situation is likely to be one of a longer period between employers rather than one where he is ordinarily unemployed. As I have indicated earlier, I am not prepared to regard the plaintiff as being in all respects reliable, and I think there was some exaggeration of his complaints and degree of disability, although probably not a very great exaggeration; the situation was I suspect that he was presenting his problems in as unfavourable a light as possible, rather than engaging in some substantial exaggeration or invention. A number of experienced orthopaedic specialists have been prepared to accept the plaintiff has someone who suffers significant genuine symptoms, and I do not think that my view of the plaintiff invalidates the medical opinion offered by them. Such specialists would see a lot of patients who are in real pain, and would know how such people behave, and have also examined the plaintiff, and are able to take account of their observations of him as well as what he told them about his symptoms and difficulties.

The plaintiff was born on 24 March 1956 (p. 4) so that he was 35 at the date of the accident and is now 41. Immediately after the accident he suffered severe pain (p. 9), but that seems to have subsided to some extent, and his pain although still constant is now variable, sometimes only mild: p. 10. It is aggravated by a variety of activities, and this occurs perhaps every week or two weeks: p. 10. He still takes analgesics regularly. He has some difficulty around the house, and has had to give up a variety of sports which he engaged in before the accident: p. 12. He has been depressed as a result of his injuries and his inability to engage in more physical activities, and was for a time taking antidepressants: p. 12. Back pain makes it difficult for him to have intercourse. I assess damages for pain and suffering and loss of amenities at $35,000, of which I attribute $15,000 to past loss. I will allow interest on this amount less the lump sum disability settlement of $3,565.50 (Exhibit 12) at 2% per annum for 6 years.

In 1990-91 the plaintiff had a taxable income according to his tax return of $18,578: Exhibit 8. This is the equivalent of about $300 per week nett of tax. The plaintiff was in employment for most but not all of that year: Exhibit 6. In this respect however the year was not that unusual. During the period where the plaintiff was working for the defendant he earned $7,717 gross: Exhibit 8. This is at a slightly higher nett per week rate, but that employment had come to an end. I think it probable that there would have been periods of unemployment in any event during the period since the accident, and allowing for them and for the ordinary vicissitudes for life I think it is reasonable to allow past economic loss on the basis of a nett figure of $300 per week. Past economic loss is only claimed in respect of the period up to 16 November 1995 when the plaintiff returned to employment: Exhibit 7. This is a period of 198 weeks, an amount of $59,400. When calculating interest on pre-trial economic loss it is necessary to deduct the weekly payments of workers' compensation ($15,045.15: Exhibit 12) and unemployment benefits, which during 1994/95 totalled $8,415.41: Exhibit 8. That indicates a weekly rate of $168, and if that rate was also paid from April 1993 there had been earlier benefits of about $10,520. In the following year benefits were paid in the sum of $4,914: Exhibit 8. This indicates a total unemployment benefits of $23,849. These should be taken into account when assessing interest on past economic loss: Shild Contractors Pty Ltd v. McGill (Appeal No. 2632/96, Court of Appeal, 21.10.97). After deducting these two amounts interest is allowed on $20,506 at 10% per annum for 4 years.

With regard to future economic loss, the plaintiff was at the time of the trial earning about $600 nett per week: p. 22. At this level of earning he really can not demonstrate any current economic loss, but no doubt he is somewhat protected in his current employment, and would be at risk in the labour market. Some allowance should be made for that. There are various aspects of normal pest control work that he can not do because of his back condition, and various alternative jobs which in the past would have been open to him are no longer within his capacity. I think therefore that it is likely that the plaintiff will have more time unemployed in the future than would have been the case had the accident not occurred, and it may be that he will be in less remunerative employment from time to time. Nevertheless his employment history since late 1995 suggests that if he applies himself assiduously to the task of obtaining suitable employment he is able to do, and I do not think that I should assume that there will be a very large increase in the amount of time the plaintiff will be unemployed in the future. The situation is likely to be more significant towards the end of his working life, of which about 25 years remained at the trial. The matter is not susceptible of calculation, and I think the appropriate course is to allow a global sum of $35,000.

A claim was made for loss of the benefit of superannuation contributions by employers. On the basis of the compulsory rates during the relevant period had the plaintiff been in employment and receiving a gross wages of $400 per week contributions totalling $2,736 would have been made on his behalf by the various employers. Some allowance should be made for the prospects of time out of work, or the plaintiff obtaining income in a way which not involved compulsory superannuation contributions, so calculations of this nature should not be pursued with too much attention to detail. This is an area where a precise calculation can become very complicated: see (1996) 17 QL 5. If the award of damages included an amount which, if now contributed to a superannuation fund for the plaintiff, would give him the same balance as he would now have if the missing contributions had been made to that fund, that would seem to compensate him for that loss, but I do not know what that amount is. I suspect that if that figure of $2,736 is rounded down to allow for the facts referred to earlier, and then has some interest added to it, that would produce much the same result, and I suspect that a fairly rough and ready approximation would be achieved if I allow $3,000 for past loss of superannuation benefits. The award for future economic loss is a global sum which should be taken as including compensation for any loss of superannuation benefits.

At the time of the trial it was generally thought that plaintiffs who had paid tax on workers' compensation payments could after receiving an award of damages obtain a refund of those tax payments, but I understand from evidence led in another action that there was subsequently a change in policy in the Australian Taxation Office and those amounts are no longer being refunded. In those circumstances it is appropriate to allow the usual Fox v. Wood component, which in this case is $2,995.65: Exhibit 12.

Special damages of $2,190.40 as per Exhibit 9 were verified with the plaintiff in his evidence: p. 34. There were also various expenses included in the workcover claim, totalling $4,761.55: Exhibit 12. Over a period of some nine months after the accident the plaintiff paid for someone to come in as a housekeeper for three hours per week to help with the housework that the plaintiff then could not do, for which he paid $30 per week: p. 35. The plaintiff was at the relevant time living alone, and cut out this expense when the workers' compensation payments ended. I think it was reasonable to incur this expense as consequence of his injuries, and that this is properly allowable as special damages in the sum of $1,080. Interest will be allowed on this and other out of pocket specials, which total $1,480; because most of these were incurred in a period closer to the accident, I think the appropriate course is to allow this interest at 10% per annum for a period of 4 years.

Summary

I therefore give judgment for the plaintiff against the defendant in the sum of $81,202.89 together with $8,332.80 for interest.