DISTRICT COURT OF QUEENSLAND

1. [1]
   By this action the plaintiff claims damages for an injury which he suffered on 3 December 1996 in the course of his employment when he fell into a trench. He was at the time working as a plumber for the defendant. He alleges that his injury was caused by the negligence, breach of statutory duty and breach of contract of the defendant.

Facts

2. [2]
   The plaintiff was working at a construction site where a number of townhouses were nearing completion. As part of the project there was an internal road which included a T-junction. Views of the junction in its completed state, showing the slopes involved, appear in Exhibit 12. Under this road there was a water pipe which also had a T-junction which had been constructed in a trench by some other contractor, and the trench filled in for the road to be built on top of it: p. 121. Unfortunately, the pipe had failed, and the defendant was called in to rectify this and some other deficiencies in the plumbing work undertaken on the site: p. 92. In order to do this, the trench was opened up again above the pipe in the vicinity of the T-junction, although the leak in the pipe had already caused some material to be washed away along one leg of the T: p. 112. Possibly because the work involved reopening a trench which had been previously dug in rock, and because of the water leak, the result was a somewhat irregular trench: p. 115.

3. [3]
   Because of the location of the trench in relation to other features of the site, it was not possible for soil from the excavation to be placed along the side of the trench opposite the leg of the T; the soil was placed only on the other side of the trench, on either side of the leg of the T. The trench was excavated with some mechanical device down to the top of the pipes, and some extra excavation was then undertaken by hand in order to expose the pipe junction, which required replacing: p. 18 The trench was 600-800 mm deep: defence para. 3. Drawings of the trench appear in Exhibits 2, 3, 17 and 18; none are to scale and none particularly reliable. The position of the plaintiff when he slipped is marked X on Exhibit 3.

4. [4]
   The plaintiff was undertaking this work along with another employee of the defendant, Mr. Naismith; as between the two of them, the other employee was the more senior: p. 16. Mr. Naismith directed the excavation and placing the spoil: p. 19. I do not accept that the plaintiff was responsible for that. The plaintiff had left the trench in order to fetch something and was returning to continue working in the trench on the T junction: p. 23. In order to do this he walked along one side of the leg of the T, which involved walking over some spoil which was piled up near the trench. Some of the spoil was of a loose rubbly nature: p. 20. As the plaintiff went to step into the trench his foot slipped forward on the loose spoil and he fell into the trench, injuring his back: p. 23. He slipped on loose rubble which was part of the pile of spoil which had been put beside the trench: p. 26. There was no path beside the trench which had been left clear of spoil.

5. [5]
   There were no witnesses to this incident, since the other employee working at the site was somewhere else: p. 110. The plaintiff reported promptly to him: p. 29. It was not disputed at the trial that the plaintiff suffered an injury by falling into the trench, but it was submitted on behalf of the defendant that there was no negligence, breach of contract or breach of statutory duty on the part of the defendant which caused this injury. The defendant also raised the question of contributory negligence.

6. [6]
   There is little conflict between the witnesses, although where there is a conflict between the plaintiff and Mr. Naismith, I prefer the evidence of the plaintiff. Mr. Naismith conceded that he did not have a clear recollection of the events (p. 116) and his estimate of the depth of the trench (300-350 mm – p. 112) is quite different from the admitted depth of 600-800 mm. The plaintiff said at least 500 mm: p. 19. One would expect the plaintiff to have a particularly clear recollection of the circumstances of his injury, and overall I was more impressed by him as a witness.

Breach of Statutory Duty

7. [7]
   It is convenient to deal first with the question of liability for breach of statutory duty. The plaintiff relies on s. 28(1) of the Workplace Health and Safety Act 1995.  The effect of this provision is to impose liability on employers who fail to ensure the health and safety of their employees, and thereby cause injury to those employees, unless the employer demonstrates that it has discharged its obligations under s. 26 or s. 27 or that it has established a defence under s.37 of the Act: Schiliro v. Peppercorn Child Care Centres Pty Ltd (Appeal 9640/98, Court of Appeal, 11.2.00, unreported). Such liability does not depend on any test of reasonable foreseeability: Hardy v. St. Vincents Hospital Toowoomba Ltd [2000] 2 Qd.R. 19.  Once a breach of the section is shown, the onus of establishing a defence under s. 37 is on the defendant: Rogers v. Brambles Australia Ltd [1998] 1 Qd.R. 212. As Brabazon DCJ explained in Schiliro at first instance (Plaint 532/97, Brisbane District Court, 18.9.98), once a causal link is shown between the injury and the work place, the employer is absolutely liable in respect of the injury unless the employee can establish a statutory defence. 

8. [8]
   His Honour also expressed the view that it was unnecessary for the plaintiff to show, for the purposes of establishing a cause of action under the 1995 Act, that there was some remedial measure which the defendant could have taken which would have prevented the injury, in order to throw the burden proving the statutory defence on to the defendant. It is not necessary in this case for me to consider whether that conclusion is correct, because the potential remedial measure is obvious enough; the spoil could have been kept away from one side of the leg of the T so as to create a clear access way to the T junction. This would not have involved keeping all of the spoil away from the whole length of the trench; it would have been sufficient if there was a path left along one side of the leg of the T free from spoil so as to enable access to the relevant work place which was at the junction of the T, where the plaintiff was working on the pipe junction which had failed.

9. [9]
   The defendant did not allege that it had discharged its obligation under s. 26 of the Act, or that it could establish a defence under s. 37(1)(a) or (b) (which parallels s. 27(2) and (3)). In relation to para. (c) of that subsection, it is necessary for the defendant to prove it chose an appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention associated with exposure of the employee to the risk of walking across loose spoil. I should say that there is evidence which I accept that walking across loose spoil poses some risk, both from the plaintiff’s expert witness, Mr. Kahler (Exhibit 4), and from Mr. Maclean that loose spoil can create unsteadiness underfoot: p. 108. It is therefore desirable in principle for loose spoil to be kept out of an access path to the work site (see p.121). Given the nature of the spoil, the risk of losing one’s footing as a result of its moving under foot is, I think, obvious. That is particularly undesirable where a slip could cause one to fall into a trench.

10. [10]
    The evidence of the defendant’s witnesses was to the effect that this was really not much of a problem. They did not see it as a safety issue, because the pile of spoil was not particularly high so that it was not difficult to walk over it: p. 113, 93. Obviously the risk associated with having people walking over loose spoil around the top of the trench in order to get to and from the work site was not identified at the time, but that does not establish a defence under para. (c). It simply means that it did not occur to anyone at the time that this aspect of the way in which the work was being done had a potential to contravene s. 28 of the Act. The method chosen for providing access, insofar as it involved walking across spoil was, in my opinion, not an appropriate way of avoiding exposure to the risk, and the defendant failed to take reasonable precautions and exercise proper diligence to prevent a breach of s. 28. In my opinion, the defence under subsection (1)(c) has not been made out. This is not a case of inevitable accident, or encountering an unavoidable risk of the trade. It is not a case like Williams v. Mount Isa Mintes Ltd (Mt. Isa Writ 26/97, de Jersey CJ, 7.6.00, unreported) where there was a finding that there was no unnecessary risk of injury: para. 15.

11. [11]
    A defence may also be available under subsection (2) if the defendant can prove that the commission of the offence was due to causes over which the defendant had no control. That is not the case here; the defendant had control over the placement of the spoil, at least to the extent that it could have been placed in a way which would have left a clear path along one side of the leg of the T. There were constraints on where the spoil could be placed; it could not be placed on the side of the trench away from the leg of the T because of other structures there, and it had to be placed reasonably close to the longer section of the trench because of a need to maintain access along the road on one side of which the trench was being dug: p. 112. However, that need did not make it necessary to have spoil right up to both sides of the leg of the T, and I am satisfied that a path could have been left along one side without causing any difficulties in maintaining access: p. 121. The defendant has not, in my opinion, made out a defence under subsection (2).

12. [12]
    It follows that the plaintiff has established that his injury was caused by a breach of s. 28, and the defendant has failed to make out a statutory defence, so the defendant is liable for damages in respect to the injuries suffered by the plaintiff for breach of statutory duty. At this point it is, I think, convenient to deal with the question of contributory negligence.

Contributory Negligence

13. [13]
    With regard to 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 any finding that the employer was in breach of his obligation to ensure his health and safety, by exposing him to unnecessary risks.  The question is whether in such circumstances the conduct of the work amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage (ibid). 

14. [14]
    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.  

15. [15]
    There are two possible aspects of contributory negligence to be considered; whether it was negligence on the part of the plaintiff to walk over the spoil rather than to obtain access in a different way, or whether there was negligence on the part of the plaintiff in the way he walked over the spoil. As to the former, the point was made that the plaintiff could have obtained access without walking over the spoil by climbing into the trench at the end of the leg of the T and walking along the base of the trench. There was some evidence about whether this would have exposed the plaintiff to a different risk of walking on exposed pipes. Such a thing can be dangerous (p. 116) but the defendant’s witnesses said that the pipes here were not so exposed as to be difficult or dangerous to walk on, because there was still dirt around the pipes in the bottom of the trench. (There were a number of services in the trench: p. 19). However, there was no evidence that the plaintiff was given any instruction to access the work site only by climbing into the end of the trench and walking along it: p. 27.

16. [16]
    There was evidence that he was an experienced plumber (p. 93) but no evidence that in a situation then prevailing an experienced plumber would have seen that it was obviously safer to access the work site by climbing into the trench at the end of the trench and walking along it rather than by walking over the spoil. On the contrary, Mr. Naismith, who was also an experienced plumber and who gave evidence for the defendant, identified either this or walking over the spoil as a means of obtaining access to the junction: p.114. Mr. MacLean had a similar approach: p. 95. The only difference is that Mr. Naismith mentioned walking over the spoil first, and obviously did not regard that as something which was obviously dangerous. In the light of this evidence, in my opinion, it is impossible to find that a reasonably competent and experienced plumber taking reasonable care for his own safety would only have obtained access to the work site at the T junction by entering the end of the trench rather than by walking over the spoil.

17. [17]
    The plaintiff was of the opinion that walking over the spoil was the safer course: p. 23, p. 26. There was no evidence to the contrary led from either Mr. MacLean or Mr. Naismith. Even if walking along the base of the trench did not involve the particular danger of walking on exposed pipes, it may well have also involved walking on loose spoil which would also have posed some danger of slipping. On the whole of the evidence, the defendant has not shown that accessing the work site by climbing into the end of the trench and walking along the base of it was so much safer than walking over the spoil that an experienced plumber taking reasonable care for his own safety would necessary have chosen that route so that it was negligent on the part of the plaintiff to attempt to access the work site in the way he did.

18. [18]
    The question then becomes whether there was negligence in walking over the spoil, that is to say given that the plaintiff was required to walk over the spoil to access the work site because there was no clear path beside it, did he fail to take such care as was appropriate for a task of that nature which did expose him to some risk, that is, slipping on the loose spoil. The defendant’s case here really amounts to saying that the plaintiff must have failed to take reasonable care otherwise he would not have slipped. But that argument is based on the proposition that reasonable care in such circumstances would guarantee that a slip was avoided, and there is no evidence to that effect. If there is the risk of the foot slipping because rubble moves underneath it, that risk can obviously be reduced by taking care, but in my opinion it cannot be eliminated no matter how careful one is. There is some risk of falling in such circumstances even if a person is taking care.

19. [19]
    The question is whether the plaintiff was failing to take such care as would be taken by a person in such circumstances who was taking reasonable care for his own safety, consistent with the fact that one assumes for the purposes of this analysis that he was required to walk over the loose rubble in order to get into the trench. There was no admission from the plaintiff that he failed to take reasonable care, and no evidence from anyone else that at the time when he slipped he was doing anything, or omitting to do anything, which would have revealed an absence of reasonable care for someone in such a position. Accordingly, the defendant has not proved that there was contributory negligence in failing to take reasonable care in walking over the rubble. It follows that I find that there was no contributory negligence on the part of the plaintiff.

20. [20]
    In these circumstances it is unnecessary for me to consider whether the defendant would be liable in tort or in contract at common law, or to consider the various interesting arguments advanced in relation to possible liability of the plaintiff to the defendant in contract if there had been a failure to take reasonable care for his own safety on the part of the plaintiff. I shall therefore resist the temptation to analyse and comment upon the various divergent views on this subject which have recently been expressed in the Court of Appeal, and pass to the assessment of the plaintiff’s damages.

Quantum

21. [21]
    The plaintiff fell with his feet in the trench and his upper body out of the trench; as he fell he twisted to the right to try to save himself with his right hand: p. 25. The plaintiff was immediately conscious of having done something to his lower back which he said initially felt like a hot flush: p. 29. He eventually managed to gather himself up, washed up and reported the matter to Mr. Naismith but continued to work for the remaining hour and a half before he knocked off, although he was uncomfortable doing so. That night the discomfort increased and it was worse the next day, although he did continue to work: p. 29. He found that bending, twisting and extending his spine increased the pain, and by the Friday which was three days after the accident he was doing almost nothing, just handing tools to Mr. Naismith.

22. [22]
    The following day he consulted a doctor who put him off work and recommended physiotherapy which continued for six weeks, although he returned to work after two weeks off: p. 30. The physiotherapy helped but he was still feeling tightness and pain in the lower back, the pain extending down one leg to the knee. He persisted with his work for about another six months but the back remained painful, and towards the end it began to get worse. Eventually when he was at a job which required a lot of shovelling he found that this particularly aggravated his back, and as a result he ceased work on 28 July 1997. He has not worked as a plumber since then: p. 31.

23. [23]
    The plaintiff saw an orthopaedic surgeon, Dr. Ho, on 1 August 1997: Exhibit 6. The plaintiff had had further physiotherapy after he had left work, but this had not been effective and the symptoms remained worse than they had been. A CT scan of the lumbar spine showed a large L5/S1 disc prolapse, predominantly on the right side. The plain x-rays also showed some narrowing of the L4/5 and L5/S1 discs, but only minor signs of spondylosis: p. 86. Dr. Ho thought the prolapse has led to left sciatica. In his opinion, the injury to the disc was caused by the incident in December 1996, and the plaintiff would be unable to work until the symptoms had subsided. He thought that at that stage that surgery ought to be considered. The plaintiff has, in fact, not subsequently had the surgery. There are occasions when his back flares up where he feels that he has reached the point where he will need to do so, but each time the back has settled down: p. 36. This happens about five or six times a year.

24. [24]
    Dr. Ho saw the plaintiff again on 27 October 1998: Exhibit 7. That records that the plaintiff had had physiotherapy until January 1998, and then purchased an inversion machine for traction which is used regularly, and had taken up swimming for exercise. Dr. Ho remained of the view that the plaintiff should change to lighter work, and that he would be unable to cope with heavy lifting or heavy manual work. There was still a prospect of improvement with surgery, without which he is likely to suffer recurrent symptoms from time to time. He gave an estimate of the cost of surgery at about $3,400.

25. [25]
    The plaintiff was seen by Dr. Boys, an orthopaedic surgeon for the purposes of a report on 23 April 1999: Exhibit 10. At that stage the plaintiff was complaining about persistent lower back aching and stiffness on a daily basis, with pain extending to the left thigh every few weeks, particularly after unusual activity. Standing for more than two or three hours or driving for two hours or more would produce lower back pain. Dr. Boys expressed the opinion that the plaintiff was suffering from discogenic lower back pain as a consequence of the L5/S1 discal derangement. He regarded the condition as stable and permanent. Such a protrusion would be consistent with the mechanism of injury described by the plaintiff. It precludes resumption of physical work required for the trade of plumber, but it would not prevent him from working in the design field. He expected that there would continue to be some back ache as a result of any work which involved repetitious bending, but he did not anticipate future surgery.

26. [26]
    The plaintiff was seen again by Dr. Ho on 10 May 2000 for the purposes of a further report: Exhibit 8. The plaintiff’s complaints of symptoms were much the same as they had been previously, with symptoms recurring from time to time with unusual activity. Dr. Ho still thought that surgery was possible, although it was not indicated unless the symptoms became intolerable; in those circumstances the cost would be about $4,000 for disckectomy, and if the spine was to be fused as well, this would cost about $2,000 more. The plaintiff seemed to be coping with his work apart from occasional interruptions because of flare-ups of the pain. He assessed the plaintiff’s disability at 15% permanent partial impairment of the whole person. Under cross-examination he gave various reasons why the plaintiff was unlikely to undertake the surgery in the future, although it remains a possibility: p. 57. He thought that there was not much degeneration prior to the time of the injury, and indeed would only attribute 2% of the 15% impairment to natural degeneration: p. 88.

27. [27]
    The plaintiff was seen by Ms. Stephenson, an occupational therapist, for the purposes of a report on 7 July 2000: Exhibit 9. She was also of the opinion that the plaintiff would now be unable to work as a plumber and she thought that he would ordinarily be able to undertake work as a hydraulic engineer once he was qualified for that, or a council inspector, although there would still be some difficulties with either position because of occasional flare ups with pain. He would need to apply continuing effort to back care, and might function best if he could work at home, at least for part of the time. His prospects depended very much on his ability to find work as a hydraulic engineer, or inspector. There was some evidence that there are positions as plumbing inspectors with the Maroochy Shire Council which become available, although not very often; one had been advertised shortly before the trial, the first in five years: p.98. That position offered remuneration of $53,000 per annum plus superannuation benefits. One would expect that there would be some competition for such a position, and the plaintiff’s back disability may well restrict his ability to obtain such a position: p. 100.

28. [28]
    The plaintiff was seen again by Dr. Boys for the purposes of a further report on 8 August 2000: Exhibit 11. At the time of that particular examination, the plaintiff was not suffering sciatica, although there was some numbness in the foot. The plaintiff used an ergonomic chair which was comfortable for him; there were problems after periods of protracted driving or standing. He swims regularly, but has not returned to any sporting activity. On examination there was some restriction on the active extension of the spine, and on straight leg raising on the left. Dr. Boys at that stage assessed the impairment of body function attributable to the back at 12.5%, presumably of the whole body, of which he would apportion 7.5% to the effects of the fall, with the balance due to degeneration present in the spine prior to that time. He did not think that surgery was indicated. The plaintiff was unable to work as a plumber, but should be able to work in the field of plumbing design. He did not think the plaintiff needed gratuitous assistance. Dr. Ho on the other hand said in response to leading questions that assistance of two hours a week with domestic and gardening tasks would be unsurprising: p. 90. Dr. Ho did not actually say that the plaintiff required that amount of assistance for such tasks. Dr. Boys was overseas at the time of the trial; I was prepared to relist the matter later after Dr. Boys had returned in order to enable him to be cross-examined, but that opportunity was declined on behalf of the plaintiff.

29. [29]
    Overall, it seems clear that the plaintiff suffered a disc prolapse as a result of this fall which has left him with some permanent impairment of the spine. His symptoms are ordinarily relatively mild as long as he is careful, and he is obviously taking a good deal of care to minimise the consequences of his injury. He tries to avoid unusual activity that will stir the back up from time to time, and when this occurs he will suffer recurrences of sciatic pain which will be quite distressing. If his back becomes substantially worse, then there is the prospect of some improvement through surgical intervention, but I think it unlikely that that will occur unless there is some significant worsening. Prior to this incident the plaintiff had not had any back problems: p. 15. Although there was some indication of mild previous degeneration, the only evidence from which an inference could be drawn that the plaintiff might have suffered problems with his back anyway was reference to the fact that plumbers seem to suffer a higher than normal rate of back problems: p. 89. Some allowance should be made for the possibility of the plaintiff developing back problems anyway, but in view of the evidence, not much allowance should be made for this factor. This is the true significance of the pre-existing degeneration; it does not in law contribute to his present condition, even if it does in medical terms. The conflict as to the degree of contribution is therefore irrelevant.

30. [30]
    The plaintiff was born on 22 April 1964, and is now 36: p. 14. He said his back was sore and stiff all the time, and several times a year the pain gets bad and he develops sciatic pain in his left leg, and numbness in his foot: p. 36. He thought this happened about five or six times a year. It seems that ordinarily he is still doing domestic tasks, although now with more difficulty than he used to experience: p. 37. He can drive to Brisbane, although he finds this uncomfortable. When his back is playing up this adversely affects his sleep. He has ceased his previous involvement in triathlons, touch football, and assisting with soccer training with his son: p. 37. He has given up running but he now swims regularly, and he has largely given up fishing because of difficulties with standing for long periods: p. 38. His emotional state has changed and this, together with financial problems, has put some pressure on his marriage which led to a separation for a time: p. 38. The injury would have had a significant effect on the plaintiff’s life, but he is coping, although at times with difficulty. In all the circumstances I assess damages for pain and suffering and loss of amenities at $28,000 which I apportion $8,000 to past loss. This will bear interest at 2% per annum for 4 years.

31. [31]
    Prior to the accident the plaintiff’s employment history was as a plumber. He started a plumbing apprenticeship after he left school (p. 14) and worked for a number of different employers in the building industry thereafter. He said work was always plentiful: p. 15. It appears that he began working for the defendant in October 1996, although he had worked previously for that company in 1994 and 1995: Exhibit 14. In the 10 weeks up to the fall in December 1996 (which do not show any indication of diminution due to the injury) the average net income of the plaintiff while working with the defendant was $489.90: Exhibit 19. In the remaining 9 week period while the plaintiff was on wages his net earnings averaged $465.40 per week (Exhibit 19) although this figure is slightly distorted because the plaintiff did receive workers' compensation from 13 December to 18 December 1996: Exhibit 13. There was some irregularity in the hours worked in December and January, but the plaintiff was working 38 hour weeks regularly in late January, and in the last 13 weeks he averaged $492.92 net per week. It appears therefore that for practical purposes the plaintiff’s net loss in the period immediately after the accident was only 2 weeks net wages, for which I will allow $980.

32. [32]
    From May until the plaintiff ceased work in late July 1997, he was working on a sub-contract basis, which meant that he received higher average gross payments and much higher average net payment: Exhibit 19. At the end of this period, however, he went on to workers' compensation, on 28 July 1997, which continued until late December that year: Exhibit 13. The payments he received from that source represented the bulk of his income during 1997-98. His next employment was on a contract basis with Bryan Burnett & Associates, beginning in September 1998: p. 32-3. He works as a hydraulic consultant, earning during the 1998-99 year net income from the business before tax of $12,131: Exhibit 14. He also receives some unemployment benefits, overall his average after tax weekly earnings in 1998-99 were $245.31.

33. [33]
    The plaintiff’s net weekly earnings in 1996-97 were actually significantly higher than they had been in earlier years; according to his tax assessment forms, the average weekly after tax income of the plaintiff was as follows:

34. [34]
    This suggests that the plaintiff’s period of employment with the defendant was unusually remunerative in view of his general work history, and it is not entirely clear why this was so. To some extent this may reflect the plaintiff’s increasing skill and experience as a plumber, but it may also be because employment with the defendant was particularly lucrative, or because during this period there was, relatively speaking, plenty of work around for the defendant and like companies. The defendant is still employing people in positions similar to that occupied by the plaintiff, and indeed is now paying its subcontractors $2 per hour more: p. 96. Presumably if the accident had not happened the plaintiff would still be working for the defendant, but it is possible that this would not have occurred, and I think I should be a little wary about assuming that had the accident not happened the plaintiff would recessarily have continued earning at this relatively high rate with the defendant in the subsequent four years. Nevertheless, that is clearly the most likely scenario.

35. [35]
    It is a little difficult to compare gross income on a subcontract basis with gross income as an employee, because the employee receives other benefits such as holiday pay and superannuation contributions and it is difficult to know how best to allow for this difference. Overall, I think it is reasonable to calculate past economic loss on the assumption that average after tax income but for the accident in the three years from July 1997 would have been $500 per week, and in the period after July 2000, allowing for the increase in remuneration rates and tax changes because of the new tax system, I should allow an average of $570 net per week after tax.

36. [36]
    The plaintiff’s counsel in his submissions calculated a figure for actual employment income for the plaintiff, based on the 1999 tax return (Exhibit 14) and the PPS payment summary for 1999-2000 (Exhibit 15), of $31,250, although this was calculated only to 24 November 2000, so it should be increased slightly for the additional time of judgment. I will assume that this figure should be $32,500. I will then calculate hypothetical loss of income from 28 July 1997 to 30 June 2000, 132 weeks, at $500 per week and 25 weeks at $570 per week. It is appropriate to make a deduction for contingencies, and I think it would be reasonable to accept a 10% figure submitted by counsel for the plaintiff. On this basis, after deducting the actual income from employment there is a loss of $48,725 which is to be added to the loss in December 1996 to give a total figure for past economic loss with some slight rounding of $49,700. Interest should be allowed on this amount less the net amount of workers' compensation benefits ($12,469: Exhibit 13) and Commonwealth benefits which came to $6,961 to 30 June 2000 (Exhibit 14, Exhibit 16) and for which I will allow a total of $7,400 to date, a total deduction therefore of $19,869, so that interest is payable on $29,831 at 4% for 3½ years.

37. [37]
    Future economic loss is more complicated. The plaintiff is currently studying a course at the Nambour TAFE towards a Diploma of Construction Hydraulics, which he is hoping to complete in about 2004: p. 33. Hopefully this will improve his earning ability, but it is impossible to say at the moment by how much, nor is it by any means clear whether he will be able to obtain employment once he has this additional qualification. His practical experience as a plumber should be of assistance to him, but the prospect of some interference with his work because of intermittent flare ups in pain with his back would be a factor disadvantaging him in the labour market. If he is able to obtain and retain employment with this qualification there may well be no economic loss at all: p. 98. However, I think some significant allowance needs to be made for the very real prospect that this will not occur.

38. [38]
    It seems likely that the plaintiff’s economic loss over the next three years will continue in much the same as the current rate and making some small allowance for contingencies, I think it appropriate to allow $38,000 for this amount. Thereafter the possibilities range between no economic loss and at the other extreme, if one assumes that the additional qualification has no beneficial effect on his earnings, loss of the order of $140,000, after making an allowance for contingencies, including the possibility that the plaintiff might have developed back trouble anyway simply because of the strenuous nature of his work, and the very early signs of degeneration. It is difficult to know just where the plaintiff will lie in this range, but my impression is that he is someone who is making real efforts to get ahead. For example, shortly before the trial he applied for a position as a plumbing inspector with the Caloundra City Council, and got to the point of being shortlisted, although he may have achieved this only by not disclosing his back problems: p. 80, p. 84. His efforts at finding alternative employment to date and his application to the Diploma course, are commendable and encouraging. I think it appropriate to make a global award for future economic loss. Taking into account all the relevant circumstances, I think an appropriate figure is $90,000.

39. [39]
    As I understand the position, superannuation contributions are not made for subcontractors in respect of whom PPS deductions are made. It is not clear whether the plaintiff would have continued to work as a subcontractor had he stayed with the defendant up to trial, the distinction between employees and subcontractors not being particularly explored with Mr. MacLean. I am really calculating past economic loss on the assumption that the most likely outcome if the accident had not occurred was that the plaintiff would have stayed working for the defendant but as a subcontractor rather than an employee. In these circumstances I do not think it appropriate to make an allowance as well for past loss of employer’s superannuation contributions. In view of the uncertainty associated with the future position, and the basis upon which I have assessed a global sum, it is not appropriate in my opinion to make an additional allowance for future loss of superannuation contributions.

40. [40]
    With regard to gratuitous care, there is some evidence from the plaintiff about receiving assistance from his son with tending the yard, and evidence that when his back is aggravated and he has the sciatic nerve pain he cannot do things like hanging or bringing in washing or vaccuming the floors to help out with the housekeeping: p. 39. He gave an estimate of a couple of hours per week that he received assistance from his wife and son on the average, but I do not think that this is really supported by the evidence. Dr. Ho said he would not be surprised if the plaintiff received this amount of assistance (p. 90) but he did not actually say that he thought the plaintiff needed it, and on the whole I am not persuaded that the plaintiff’s condition is such that he is in need of assistance except on those occasions when his back is particularly playing up. There was also reference to his having to get someone in to mow the relatively large area on which he is currently living, but unless he has a suitable mower he would have to get someone in to mow such a large yard anyway, and it is by no means clear that this represents additional expenditure. Counsel for the defendant conceded an entitlement to $5,200 for past gratuitous care, and which I will allow, although I think if anything it is rather generous. This will carry interest at 4% per annum for 4 years.

41. [41]
    It was submitted however that it would be appropriate to be more restrictive in the future, because of the evidence that the plaintiff’s property, which is the main generator of the need for gratuitous care at the present time, is currently on the market: p. 39. In the future he will need care only in those periods where the leg is particularly playing up and I think an average allowance of ½ hour per week is reasonable, in the light of my impression of the extent to which the plaintiff’s back is unusually troublesome in the course of the average year. On this basis, an allowance at the agreed rate of $15 per hour, discounted over 35 years at 3% per annum – see Mott v. Fire and All Risk Insurance Co Ltd [2000] 2 Qd.R. 34 – comes to $8,555, which I will allow for future gratuitous care. 

42. [42]
    The plaintiff is incurring some costs of pain killers, which is likely to continue: p. 40. Apart from that, there is a claim for future medical expenses and associated travelling expenses, but it is difficult to see how the plaintiff is in need of regular medical attention, unless the situation deteriorates to the point where he gives serious consideration to the possibility of surgery. As I have said, I think that the prospects of that occurring are fairly low, although some allowance should perhaps be made for it. Overall, I think an allowance of $1200 would be reasonable. There is also a claim for the future costs associated with swimming as a means of exercising his back. That is referred to by the specialist as helpful exercise, and this is also a means of maintaining his fitness in circumstances where he is unable to continue with the more strenuous activities undertaken before the accident. It may be that those activities had costs associated with them which he is now saving, so that there is some amount which should be offset, but that was not a matter raised in the evidence and on the whole I think it is reasonable to make an allowance for future costs of swimming of $2,500, based on his current level of expenditure (p. 41) with some discount for contingency.

43. [43]
    A claim is made for the costs of completing the TAFE course. The liability to pay costs associated with this is not disputed in principle by the defendant, and a calculation for the future enrolment costs of $890 has been rigorously calculated. There is also a calculation of travelling expenses which is quite precise, although it is based on a cost per kilometre of $0.50 which is unsupported by direct evidence. Figures of this nature are sometimes used in calculations, but I strongly suspect that for most people they represent a substantial overestimate of the actual cost of motor vehicle usage, particularly in circumstances such as this where it represents additional usage. No doubt the plaintiff would have had a motor vehicle anyway, so there is no reason to allow standing costs which are taken into account in calculations which produce a cost of the order of $0.50 per kilometre. For what would be essentially highway travel, I think a more realistic figure is about half that claimed, and I will allow a $8,450 for future travelling expenses associated with completing the TAFE course. This produces a total allowance for future education expenses of $9, 340.

44. [44]
    Special damages are agreed at $9,298.41, together with a Fox v. Wood allowance of $4,362: Exhibit 13.  Interest on out of pocket special damages which total $6,429 will be allowed at 4% per annum for 4 years. 

45. [45]
    Summary

I therefore assess damages as follows:

46. [46]
    There will therefore be judgment that the defendant pay the plaintiff $195,704 which includes $6,677 by way of interest.