Daryl Allan Cowley v the Commonwealth of Australia [1988] ACTSC 17 (31 March 1988)

SUPREME COURT OF THE ACT

DARYL ALLAN COWLEY v. THE COMMONWEALTH OF AUSTRALIA
S.C. No. 1169 of 1984
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - employer's liability - plaintiff driver of truck - injured when his knee struck trailer brake control unit attached to steering column - whether brake control unit fitted correctly - question of avoidability - question of contributory negligence because plaintiff failed to wear seatbelt - no new matter of principle.

Damages - personal injury - injury to right knee - whether injury cause of later depression - plaintiff unable to continue work as plant operator - possibility of further surgery.

Damages - past loss of earning capacity - whether Commonwealth Government Employees compensation received by plaintiff to be considered - further loss of earning capacity - difference in remuneration between occupations before and after injury minimal - no new matter of principle.

HEARING

CANBERRA
31:3:1988

DECISION

This is an action for damages for personal injury brought by the plaintiff against his employer, the Commonwealth of Australia. The injury occurred on 3 December 1981. The plaintiff was employed as a plant operator by the Department of Housing and Construction. At about 9.30 a.m. he was driving a truck across the lawn in Commonwealth Park. The front driver's side wheel struck an unobserved depression in the lawn. The jolt to the vehicle caused the plaintiff to be flung forward. His right knee struck a trailer brake control unit which was attached to the steering column. The plaintiff was not wearing the seatbelt which was fitted.

2. The plaintiff's evidence was that immediately prior to the incident he was driving at a speed of no more than ten kilometres or miles per hour. He was not sure which. He said that in any event he was not going faster than at a walking pace. There was no evidence to contradict him on this aspect and I find that the speed was somewhere between ten kilometres and ten miles per hour. It was not an unsafe speed in the circumstances. The failure to wear a seatbelt was a practice which was tolerated by the Commonwealth in such vehicles. I find that the defendant has not proved that such failure constituted contributory negligence on the plaintiff's part. I refused an application at the end of counsels' addresses for an amendment to the statement of claim to include an allegation that the defendant was negligent in failing to ensure that the seatbelt was worn.

3. The relevant particulars of negligence set out in the statement of claim were as follows:

(d) Fitting a device to the steering column of

the vehicle in such a position that it was
likely to injure the plaintiff and did in
fact injure the plaintiff.

(e) Failing to position the device on the
steering column so that it was further away
from the plaintiff's knee whilst he was
driving the vehicle.

(f) Failing to provide a proper system of cabin
layout.

(g) Failing to cushion or otherwise isolate the
mechanism so that the mechanism would not
cause injury to the plaintiff."

4. The plaintiff and a witness, Mr. Vincenzo Calvo, gave evidence that they had each made numerous complaints prior to the plaintiff's injury of the dangerous nature of the brake control unit. The plaintiff claimed that such complaints had been made to the senior foreman, Mr. Edward Charles McJannett. He also gave evidence that on one occasion he complained to the foreman, whom he did not identify, that he had hit his left knee on the brake control unit when climbing into the vehicle. Mr. Calvo said in his evidence that he had struck his knees on the unit every time he got into the vehicle and on numerous occasions had struck his right knee whilst driving off the road and had complained about it on several occasions to his supervisors, Mr. Ken Pryor and Mr. McJannett. He said that Mr. McJannett replied that nothing could be done about it. Whilst giving evidence-in-chief he resiled from his statement that he had reported to Mr. Pryor. He fixed the number of complaints to Mr. McJannett at two or three and later reduced it to "a couple". Mr. Calvo's evidence contained the implication that several persons had been injured on the brake control unit in the particular vehicle, because he was "one of the lucky ones" who had not struck his knee "that hard" on any occasion.

5. The defendant called two witnesses on this aspect of alleged complaint. One was Mr. Morris Alvin Calwell. He was at the time of the incident the immediate supervisor of the plaintiff and of about forty to fifty other men who drove the truck from time to time. He was unaware of any complaint being made about the dangerous nature of the brake control unit, or of any injury to any employee caused by the unit, until the day in question. The other was Mr. McJannett. Mr. McJannett said that until the time of the plaintiff's injury he had never received any complaint from the plaintiff, Mr. Calvo or any other person about the dangerous nature of the brake control unit nor of any injury caused to any driver by the unit. He made a practice of recording in an accident book particulars of any such injury. There was also in existence a workshop safety committee which met once a month and Mr. McJannett was certain that no question of the danger of the brake control unit had ever been brought to the attention of that committee. He agreed that in the case of mechanical trouble with the vehicle it could be taken to the workshop by the driver without reference to the foreman. No one was called from the workshop on behalf of the defendant, but that was hardly necessary as there was no evidence on the plaintiff's side of complaints being made to workshop staff.

6. I was impressed with the evidence of both Mr. Calwell and Mr. McJannett. I was less than impressed by the evidence of the plaintiff and his witness. I am aware of the force of the argument that the evidence given by and on behalf of the plaintiff was positive whereas the evidence given on behalf of the defendant was consistent with a mere failure of memory on the part of each of the two witnesses. But, in my view, if there had been prior complaints to Mr. McJannett, they would have been sufficiently recent at the time of the plaintiff's injury for his recollection at that stage, and would be likely to be imprinted in his memory then and not to have faded since. In other words, if his evidence is to be rejected it is not because of a failure of memory, but because of deliberately false evidence. I am positively of the view that Mr. McJannett's evidence was honestly given. I am also positively of the view that Mr. Calvo tailored his evidence to suit a former workmate. I conclude that I am unable to accept the evidence of the plaintiff on prior complaint.

7. The case then has to be approached upon the basis that there were no complaints to the Commonwealth of the dangerous nature of the brake control unit, nor of any injury to any employee associated with the unit, until the injury to the plaintiff on 3 December 1981. The truck was an International ACCO 1830A. The brake control unit was installed by departmental mechanics shortly after the purchase of the vehicle at some unspecified time before the plaintiff's injury. A number of photographs of varying quality and utility were tendered in evidence. It is necessary, although possibly confusing, to try to describe the unit for the purpose of these reasons for judgment. It is known as a PBR Model CA300 trailer brake control unit. It is not a standard fitting for the truck in question or any other type of truck. It is approximately three hundred millimetres in total length, about sixty millimetres in width and about the same in depth. About one third of the length is taken up by the circular clamp or gripping jaws by means of which it is fixed to the steering column. Thus it projects about two hundred millimetres to the right hand side of the steering column. The position where the device in question was fixed to the steering column of the defendant's vehicle was about twenty-five millimetres below the steering wheel boss. Four air hose pipes each about fifteen millimetres in diameter lead from the device to the floor of the vehicle. A "wand" similar to the turning indicator control in a car projects outwards from the end of the device adjacent to the right hand side of the steering column. The wand is used to control the pressure of air fed to the trailer brakes. On the truck in question the unit was fitted so that it was approximately horizontal and parallel to the dashboard, and so that the wand was at an angle of about forty-five degrees and roughly parallel to the rake of the steering wheel. Fitted in this way the device has, to the untutored mind such as my own, the immediate appearance of being in the position where it was meant by the designer or manufacturer to be.

8. The case really falls to be decided on the evidence of two conflicting expert witnesses, each called by either party. The plaintiff called Mr. Colin Simpson of Oatley, New South Wales, whose qualifications and experience are, by reason of his frequent appearances in the courts, well known. In recent times Mr. Simpson has been adding to those qualifications and experience by undergoing a course leading to the degree of Master of Safety Science at the University of New South Wales. One of the subjects in that course is Applied Ergonomics. The senior lecturer in that subject is Dr Neil Adams of Nimmitabel, New South Wales. Dr Adams was the expert witness called on behalf of the defendant. Dr Adams' experience and qualifications are set out in a documentary exhibit of six pages. His original background was in applied psychology. The bulk of Mr. Simpson's early experience, on the other hand, was in automotive engineering. Mr. Simpson recently delivered a paper, or conducted a seminar, on the ergonomics of truck cabin design within the course conducted by Dr Adams. Dr Adams concedes that Mr. Simpson has greater expertise than he does in relation to the mechanical engineering aspects of the design of cabins of trucks, but does not concede inferiority on knowledge and experience in the field of applied ergonomics. However, I do not think that the case turns upon a consideration of whether Mr. Simpson or Dr Adams has the greater expertise. Indeed I do not think that it should be decided upon principles of ergonomics applied or otherwise.

9. Mr. Simpson's opinions are stated shortly and clearly in his report which was admitted into evidence. The plaintiff was present at the inspection carried out by Mr. Simpson and assumed a position in the vehicle so that the seat was adjusted comfortably. The distance between the knee of the plaintiff in that position and the brake control unit was about fifty millimetres. The plaintiff is about one hundred and seventy-three centimetres in height. In Mr. Simpson's opinion, had the unit been mounted in what he considers to be the correct position, the distance would have been increased by about eighty millimetres. The unit may be adjusted by releasing the tension of the two semi-circular clamps which grip the circumference of the steering column. Adjustment of the unit by way of moving it in an anti-clockwise direction would, in Mr. Simpson's opinion, have taken less than two minutes for a mechanic with the correct size ring spanner. By so rotating the unit the distance between the closest part of the unit and the knee of the driver would have been increased to some one hundred and thirty millimetres. Furthermore, the unit could have been pushed further up the column towards the boss, although it is not clear to me that this would have taken it further from the driver's knee. In Mr. Simpson's experience such units are designed and are in fact normally fitted to the steering column of trucks in such a way that the risk of the knee of the driver striking the unit can be avoided by fixing the unit at approximately twenty degrees anti-clockwise to the position of the unit as it was in fact.

10. Mr. Simpson's evidence to the Court was that he was familiar with this precise type of brake control unit, that he himself had fitted thirty or forty such units to trucks, and had supervised the fitting of hundreds. As well as fitting the units he had driven trucks with the units attached by somebody else. On all occasions the units had been fixed in a position about twenty degrees anti-clockwise from the position in which the unit was attached to the truck in which the plaintiff was injured, that is to say, with about a further eighty millimetres clearance from the driver's knee. Mr. Simpson disagreed with the suggestion that the unit fixed as he suggested would foul the ignition key. By inference I took him to say that in fact the units as he himself had installed them, and as they had been installed in trucks which he had driven, did not foul the ignition key.

11. Dr Adams examined the truck in question on three occasions and supplied lengthy reports as well as giving lengthy evidence. He was in court throughout the hearing of the case. He first examined the truck on 18 December at the premises of Mr. Cassoni, the present owner. He re-examined the truck on 1 February 1988. On the occasion of the first examination, Dr Adams took the view that the device was in the "optimal position" and that it was unlikely that a competent mechanic would fit it in a position other than the position in which it was. He found that the clearance between his own knee and the device was between one hundred and forty and one hundred and seventy millimetres depending on the position of his foot. I am unable to find an explanation for the difference between the distance between the device and Dr Adams' knee, as Dr Adams measured it and the difference between the device and the plaintiff's knee as Mr. Simpson measured it. It may have something to do with the position of the seat. In any event, it was the distance from the plaintiff's knee which Mr. Simpson measured and I prefer his evidence. Dr Adams commented on the suggestion made in the report of Mr. Simpson relating to rotation of the device. His initial opinion on the suggestion, however, proceeded upon a false premise that Mr. Simpson was advocating rotation in a clockwise direction whereas it is quite clear that what was suggested was rotation in an anti-clockwise direction. Dr Adams was of the firm view that the device was fitted at a safe distance from the knee of the driver and that it was virtually impossible for the driver to sustain the sort of injury the plaintiff sustained in the circumstances described by the plaintiff, that is to say, where the wheel of the truck fell into a slight depression at a slow speed of about ten kilometres per hour.

12. In his second report, Dr Adams commented upon the suggestion that the device might have been rotated in an anti-clockwise direction and expressed the view that this was impractical as the device was then likely to foul the ignition key.

13. From my own observation of the vehicle and the device, which was undertaken by way of a view in the presence of and with the consent of counsel for both parties, and from an examination of the numerous photographs in evidence, it appears to me that there is some ground for the hypothesis that if the device were rotated in an anti-clockwise direction, then it might foul the ignition key. In other words, it looks as though it would. It is remarkable, since everybody agrees that such rotation is such a simple procedure, that nobody has sought to have it carried out on the vehicle itself. The present owner, who had extensive work carried out on the truck soon after he purchased it from the Commonwealth, has had the air hoses disconnected from the braking system but has left the device on the steering column undisturbed. Be that as it may, the opinion evidence as to what might be the case in a hypothetical situation is, in my view, clearly over-shadowed by the evidence of Mr. Simpson about what has in fact happened on other occasions on other trucks which, according to his evidence, have been virtually identical with the truck in question. Mr. Simpson said that he has fitted these devices on the same sort of truck and has driven the same sort of truck with the same sort of devices attached and that on all such occasions the device has been fixed at a distance about a hundred and thirty millimetres from the driver's knee by reason of its having been rotated in an anti-clockwise direction. If that is the case, then clearly the possible fouling of the ignition key is insignificant. In my view, the plaintiff clearly has to succeed on the issue as to whether it was practicable to move the device to a position where it was less likely to cause the sort of injury that was sustained by the plaintiff.

14. The next issue is the issue of avoidability. Was it likely that the sort of injury that the plaintiff sustained would have been avoided or substantially reduced by adopting the reasonably practicable alternative means? Dr Adams proffered the view that, if the plaintiff hit his knee on the device where it was, with the degree of force with which he appears to have struck it, then even with the device a hundred and thirty millimetres away from him, he would still have suffered a similar sort of injury. Again, I think there is some force in this view. Most of the doctors are puzzled and some even surprised, by the apparent magnitude of the injury to the plaintiff's knee having regard to what, on the plaintiff's account, appears to have been a slight impact occurring at a very slow speed. On the other hand, Dr Coyle obtained a history from the plaintiff that the impact occurred with considerable violence. However, my finding is that, on the balance of probabilities, the plaintiff was proceeding at the slow speed stated, that he was in fact flung forward when the wheel hit the depression and whilst it is impossible to give any informed qualitative assessment as to the force of the impact between his knee and the device, it was sufficient to cause significant injury. In my view if the device had been a hundred and thirty millimetres from his knee, it is possible that he might have suffered the sort of injury that he suffered although it would probably have been not so severe. I observe that the views of Dr Adams are affected by what amounts in effect to a refusal to accept the plaintiff's account of the speed at which he was travelling immediately prior to impact. Furthermore, whilst Dr Adams expressed the view that the plaintiff would have made contact with the device regardless of whether it was in the position that it was in fact placed or whether it was moved forward as suggested by Mr. Simpson, that contact is not the test. The test is whether the plaintiff would have received the sort of injury which he did in fact receive. It is a fine point but I think that the plaintiff has proved that injury of the magnitude suffered by him would probably have been avoided if the obviating measure had been taken.

15. Finally, I deal with the issue of whether it was unreasonable of the defendant in the circumstances not to have taken the step of moving the device up the column and rotating it as suggested by Mr. Simpson. In deciding this question of reasonableness, it is relevant and indeed necessary to take into account the magnitude of the risk. That includes not only the seriousness of any injury that a driver was likely to sustain, but also the incidence of injuries that had occurred in the past. As I have said, I am quite satisfied that there had been in fact no such injury reported to the defendant by any of the drivers prior to the date of the plaintiff's injury. It may have been the case that drivers from time to time knocked their legs on the device when getting into or getting out of the cabin, but I am not satisfied that any complaint of such happenings had been made. However, it would have been apparent to any prudent employer, and indeed anybody who considered the situation at all, that there was a considerable risk of injury to the knee of the driver in the event of the driver being unrestrained by a seatbelt and the vehicle coming to a sudden halt with the result that the driver was propelled forward and unrestrained. I have taken into consideration that the two experts, insofar as there is expertise in this field, disagree between themselves as to whether it was necessary or desirable to position the device as recommended by Mr. Simpson. It is arguable that where the experts are unable to agree, then it is difficult for the plaintiff to show that it is unreasonable of the defendant to have followed the course which, according to one of the two expert views, is adequate. Ultimately, the position is reached where the plaintiff really has to show that what is suggested on his behalf should have been self-evident to any reasonable employer. As a lay tribunal of fact, I am positively of the view that the brake control unit was so close to the knee of a person who could be expected to be driving the truck, including the plaintiff, that it presented a foreseeable risk of injury of the type which the plaintiff suffered. I think that the reasonable employer would have taken the view that if the device could have been moved further from the driver's knee then that course ought to have been adopted. The evidence of Mr. Simpson, and indeed that of Dr Adams, clearly establishes that it was a very simple measure to loosen the bolts on the device, slide it about one centimetre upwards on the steering column and rotate it about twenty degrees in an anti-clockwise direction. The obvious question is: why was that not done? The answer as it lay in the minds of those responsible on behalf of the department may well be represented by the note made in the report by Mr. McJannett into the plaintiff's accident. The note relates to possible action to prevent recurrence and is in these terms:

"Brake control cannot be moved without major
rework of cabin area."

16. Whether or not Mr. McJannett was acting upon advice from persons in the mechanical workshop (and I think that he probably was) does not matter. The note is eloquent that no one in the employ of the defendant recognized how simple a step it was to do what was necessary. Dr Adams suggests that this might have been because of the possibility of the unit fouling the ignition key, but in the absence of evidence from someone in the employ of the defendant with knowledge of the affairs at the time, I am unpersuaded by this argument. I have already stated my conclusion that Mr. Simpson's evidence establishes that to position the device at the greater distance from the knee of the driver does not foul the ignition key. The plaintiff therefore succeeds on all issues relating to liability.

17. I turn now to damages.

18. Although the plaintiff was not an entirely satisfactory witness, I think that on the whole his evidence in relation to the consequences of his injury should be accepted. It was supported by that of his wife, whose evidence I have no reason to reject. The initial impact was sufficient to cause him great pain such that he did not know whether to be sick or to cry. He sat in the vehicle for half an hour before he drove back to work. He had trouble with the accelerator pedal on the way. He reported the injury and waited around the yard for the rest of the day. His knee continued to be very sore over the next few days, although it appears that he continued to work and continued to drive vehicles. The pain seemed to resolve over the Christmas period when, I assume, he was not working, but it reasserted itself a couple of months later. There was no particular incident which caused the renewed symptoms of pain. The plaintiff indicated that the area of pain has at all times been on the inner aspect of the right knee cap. He first began to take time off from work as a result of the pain at the beginning of January 1982. He has seen a number of general practitioners. There was no evidence from any of them, but in view of the wealth of evidence from experts in various fields, I attach no great importance to this. He had an initial course of physiotherapy on about fourteen occasions. The condition appears to have worsened. He noticed difficulty getting in and out of cabins of plant and machinery and in walking. He started to see a number of specialists. On 31 May 1982 he was admitted to the John James Hospital where Dr Coyle performed an exploratory examination of the knee cap. To the doctor's surprise, this occasioned some relief to the plaintiff, but it was short-lived. The knee began to lock and this was associated with increased pain and swelling particularly when walking. On 24 November 1982 on the advice of his then general practitioner, Dr Szmerler, the plaintiff ceased work. He came under the care of Dr Kitchin, an orthopaedic specialist. Dr Kitchin investigated the knee under anaesthetic on 26 May 1983 and, in view of the continuing symptoms, performed a lateral patellar release procedure. But the plaintiff's symptoms grew worse and his knee was placed in a plaster from the beginning of August to the end of September 1983. The symptoms were continuing when Dr Kitchin last saw the plaintiff on 6 October 1983. Dr Kitchin thought that the plaintiff should have been able to return to his work as a plant operator. The plaintiff, however, continued to suffer from the same symptoms and was referred to Dr Calder, an orthopaedic surgeon, who carried out two arthroscopic examinations in 1984. On the first occasion the diagnosis was of an inflamed plica and Dr Calder removed the plica which was found to be thickened with fibrosis. The second occasion, according to the plaintiff, was on 30 October 1984. Between operations Dr Calder injected hydro-cortisone into the knee. Dr Calder hoped that the plaintiff would be able to return to work as a truck driver but again those hopes were not realised.

19. On 2 July 1985 the plaintiff was examined by an orthopaedic surgeon in Sydney, Dr Ian Davison, on reference from Dr Szmerler. The view taken was that the plaintiff's difficulties may have been caused by the cutaneous branch of the saphenous nerve becoming involved in scar tissue related to previous arthroscopy and Dr Davison gave some guarded advice to free the nerve where it was involved in the scar tissue. Whether that advice was conveyed to the plaintiff is not clear, but when the plaintiff later came under the attention of Dr Anthony Cairns, an orthopaedic surgeon of Canberra, Dr Cairns took the firm view originally that the plaintiff's difficulties were not caused by involvement of the saphenous nerve and that to venture with surgical interference in this area required very careful consideration. On the other hand, in his report dated 15 February 1988, Dr Cairns stated that he had advised the plaintiff to undergo further examination under anaesthetic and arthroscopic assessment. Again, it is not clear that this advice was relayed to the plaintiff. In any event, I am not satisfied that the plaintiff has declined to follow any reasonable operative procedures that have been recommended to him and I am not satisfied that he has failed to mitigate his damages. I think it unlikely that the plaintiff will come to further operative procedures.

20. The plaintiff gave evidence that he had suffered depression from some time in 1983. His wife also spoke of his depression but did not put a time on it. According to the doctor who treated the plaintiff for that depression, Dr Saboisky, he was first seen at the request of Dr Miller in December 1985 and I would think it more likely that the depression of which the plaintiff is speaking relates to the period just before then and during the six months or so thereafter. The plaintiff saw Dr Saboisky on four occasions and I am convinced that his emotional state at that particular stage did fall into the category of a genuine clinical depression. It was partly contributed to by his family background and the death of some close relative. It was further contributed to by the loss of self-esteem which was particularly associated with his inability to work and there may have been other factors. However, I am quite convinced that the injury which had led to his inability to work was a major cause of the depression during this period. On the other hand, I accept the opinion of Dr Saboisky that the plaintiff was possibly a candidate for depression of some kind or degree even without the injury and the general damages will take that aspect into account.

21. From 7 January 1982, according to the plaintiff's evidence, he started to take time off work because of the symptoms in his knee. He appears to have resumed duties as a plant operator and truck driver up until April 1982. After he ceased the course of physiotherapy he resumed work on an unspecified date. As the symptoms increased the plaintiff lost more intermittent time from work, and on 24 November 1982 he stopped work on the advice of Dr Szmerler. He sought redeployment with the Public Service and on 11 January 1984 was placed on duties involving answering the phone and preparing pay sheets and the like in the Fyshwick office of his old department. The plaintiff found this work boring, but better than being kept at home. He preferred outdoor work and looked forward to getting out of the office in order to deliver pay sheets. This work came to an end towards the end of 1985 and he was given other duties in the maintenance section at the High Court. He had no difficulty with these duties except when required to climb stairs. There was nothing particularly active about the job from the physical point of view. He remained in that work for about five months. He was then sent to the Lower Molonglo Treatment Works where again he was put on duties answering the phone and attending to pay sheets. This was a desk job and again he found it boring but tolerable. Nevertheless, he found difficulties both at the High Court and the water works in negotiating stairs. After about eight weeks in this last position he was given duties at the Australian Defence Academy of a similar nature, but this involved only one and a half hours actual work in a week with really very little to do. Nevertheless the plaintiff was required to walk around the premises, or because he did walk around the premises, his knee became more painful and he went off work again for about six months commencing 8 September 1986. He has resumed duties in the welfare branch of the ACT Administration. He likes this work and is hoping to complete a welfare officers course studying four subjects two nights a week. There must be in my assessment a substantial possibility that he will not successfully complete the course. If he does not his prospects of promotion are quite limited.

22. I am satisfied that the plaintiff is quite unfit for his pre-injury occupation as a plant operator or truck driver and that he experiences disabling pain in his right knee when he is required to walk or stand for prolonged periods and would do so if he was required to climb stairs or mount and work plant and machinery. However, despite his work limitations, the plaintiff is not grossly disabled. I accept that he was no longer able to play squash or walk German Shepherd dogs. But his knee is not sufficiently painful or not painful sufficiently often to prevent him from riding a bicycle, playing ten-pin bowling, taking his children to the Show or doing a certain amount of gardening including mowing the grass. The evidence that prior to injury he played squash at least once a week was supported by that of his wife and I accept it. He is clearly not fit to play squash. However, I think his active days as a sportsman were starting to wind down. He manages to control his symptoms to some extent with medication a couple of times a week. This involves expenditure of about $3 per month.

23. It is possible though unlikely, in my view, that the plaintiff will have to undergo further surgery, but this modest component will be taken into account in the general damages.

24. Out-of-pocket expenses are agreed at $5,727.21. The Fox v. Wood component is $8,212.27.

25. Figures for loss of earnings to date have been supplied after the hearing. These figures do not show the exact periods during which the plaintiff was off work. They do show that the difference between the plaintiff's net earning from the time of injury to the date of hearing ($89,395.51) and the net earnings of an employee who worked in a similar capacity ($112,910.10) is about $23,515. The figures show also that the plaintiff received Commonwealth Government Employees compensation as well, but I do not see how this can be taken into consideration except for the purpose of interest. As far as the future is concerned, the agreed figures seem to show that the plaintiff is suffering a $44 per week continuing net loss. The "top of the range" wage of a senior plant operator in the Department is $288.87 per week. The net weekly earning of an Administrative Service Officer Class 1 (which is the plaintiff's present classification) ranges from $262.50 to $291.45 per week. The difference between the remuneration in the two occupations is minimal. I wonder therefore how it can be said that he continues to suffer a periodic loss of earnings. If the plaintiff qualifies as a welfare officer, he will earn more than he would as a senior plant operator in the Department. On the other hand, I am not prepared to make a positive finding on the probability that the plaintiff will qualify as a welfare officer. He is a man of limited education and of demanding family commitments. He has a very positive attitude towards the future which I think will assist him, but I think I have to assess the future on the basis that there is at least a strong possibility that his undoubtedly reduced capacity will at some stage and from time to time result in actual loss of earnings. Plant operators in private industry can command high earnings. It is impossible to be precise about the matter and I am aware that the plaintiff bears the onus. As for the future, I think that I should allow a sum only as a hedge against the possibility that he will not continue to be employed in the ACT Administration.

26. I shall hear from counsel how the past wage loss, loss of future earning capacity and interest is to be calculated in the light of my findings.

27. I shall announce the award for pain and suffering and loss of enjoyment of life in my final reasons for judgment.