Ian John White v Canberra Furniture Manufacturing Pty Limited (Acn 008 644 540), Dawe Industries Pty Limited (Acn 008 576 823) and Dosyo Pty Limited (Acn 008 620 773) t/as Canberra Wall Frames and Marie Bishop [1999] ACTSC 53 (28 May 1999)

Last Updated: 6 October 1999

IAN JOHN WHITE v CANBERRA FURNITURE MANUFACTURING PTY LIMITED (ACN 008 644 540), DAWE INDUSTRIES PTY LIMITED (ACN 008 576 823) AND DOSYO PTY LIMITED (ACN 008 620 773) t/as CANBERRA WALL FRAMES and MARIE BISHOP [1999] ACTSC 53 (28 May 1999)

CATCHWORDS

ACTIONS BY AND AGAINST FIRMS - correct identification of the defendant party - significance thereof.

PERSONAL INJURIES - claim for negligence and supply of defective goods under s75AD of the Trade Practices Act 1974 (Cth) - latter claim not maintainable as the defendant was not a corporation.

CONTRIBUTORY NEGLIGENCE - whether a sub-contract carpenter "carrying on building work" within the meaning of reg 73 of the Scaffolding and Lifts Act 1912-1948 (NSW) in their application to the ACT.

Trade Practices Act 1974 (Cth), Part VA, s75AD

Scaffolding and Lifts Act 1912-1948 (NSW), reg 73

Supreme Court Rules, O50r8

Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, applied

Ex parte Blain (1879) 12 Ch D 522, considered

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, referred to

Davey v Skinner [1961] NSWR 216, cited

No. SC 233 of 1996

Judge: Gallop J

Supreme Court of the ACT

Date: 28 May 1999

IN THE SUPREME COURT OF THE )

) No. SC 233 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: IAN JOHN WHITE

Plaintiff

AND: CANBERRA FURNITURE MANUFACTURING PTY LIMITED (ACN 008 644 540), DAWE INDUSTRIES PTY LIMITED (ACN 008 576 823) AND DOSYO PTY LIMITED (ACN 008 620 773) t/as CANBERRA WALL FRAMES

First Defendant

AND: MARIE BISHOP

Second Defendant

ORDER

Judge: Gallop J

Date: 28 May 1999

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $179,973.95.

1. This is an action for damages for personal injuries sustained by the plaintiff in an accident on a building site in the suburb of Conder in the Australian Capital Territory on 17 March 1994. The writ of summons originally embraced another cause of action against another defendant in respect of a motor vehicle accident but that claim had been settled before the action based upon the accident on the building site came on for hearing.

2. By his amended statement of claim the plaintiff sued the defendant trading as Canberra Wall Frames in negligence and for supplying defective goods contrary to Part VA of the Trade Practices Act 1974 (Cth). Shortly put, the plaintiff's cause of action against the defendant was that at all material times the defendant was a manufacturer and supplier of timber cottage frames. On or about 10 March 1994 the defendant, in the course of trade or commerce, manufactured and supplied to Sitecove Pty Limited timber wall frames for a cottage to be erected on Lot 24 Section 109 Conder in the Australian Capital Territory. The plaintiff, as a subcontractor to Sitecove Pty Limited, commenced on 17 March 1994 to erect roof trusses on the cottage in the course of construction at that site. In the course of erecting the trusses the plaintiff walked across a "top plate" of the already erected timber frames. As he walked across the top plate, part of the frame suddenly gave way causing the plaintiff to fall heavily to the concrete slab below, whereby he suffered soft tissue injury to the lower back and stress fractures of T12 and L1 vertebrae. The particulars of negligence pleaded were:

(i) Failing to properly complete the timber frame by ensuring that all necessary studs were included.

(ii) Failing to provide instructions to the plaintiff as to the on-site addition of the missing stud.

(iii) Failure to have in place any or any adequate system of inspection and/or quality control to ensure that the timber frame was not delivered to the site with a stud missing.

(iv) Failure to warn the plaintiff that a stud was missing from the timber frames where the top plate part of the frame gave way.

(v) Failure to advise, direct or instruct the plaintiff not to walk on the top part plate of the frame near where the stud was missing.

(vi) Res ipsa loquitur.

3. By their amended defence the defendant denied negligence and pleaded contributory negligence on the part of the plaintiff including breach of statutory duty, namely regulation 73 of the regulations made pursuant to the Scaffolding and Lifts Act 1912-1948 (NSW) as applied and modified in the Australian Capital Territory.

4. The plaintiff is a qualified carpenter by trade. He was born on 13 June 1937 in West Wyalong, New South Wales (61 years at the date of hearing). Having completed his apprenticeship he worked in the carpentry trade as a builder or sub-contractor working for himself for 35 years. He was doing mainly cottage work when he lived in Griffith, New South Wales. After he moved to Canberra he did commercial work for some 13 years in partnership employing up to 10-12 people. When that partnership was dissolved he started working with his son in early 1992 erecting pre-fabricated frames. He is married with four children.

5. Instructions for the erection of wall frames or roof trusses would come from the people running Sitecove Pty Limited and Classic Constructions. They would contact the son, give him block and section number and the plaintiff and the son would go to the site to which the frames had previously been delivered. They would then erect the frames in accordance with a site plan nailed to the frame. The plans were all numbered and there was a floor plan and it was just a matter of working to the plan. The numbers were on the pieces of frame. Occasionally there would be additional instructions for the plaintiff and his son if there was something further to be done.

6. The way in which the plaintiff suffered his injuries was not really in dispute. The issues in the trial centered around the alleged liability of the defendant and any contributory negligence on the part of the plaintiff. The plaintiff went to the site in Conder in March 1994. The frames were on the site. The first thing that was done was for the plaintiff and his son to mark out the slab with chalk, open the bundle of frames all strapped together and go ahead with the numbers and stand the sections of frame up in their correct positions. Having put the frames up, the frame would be braced to hold them secure. The floor plate, which is the bottom plate of the frame, was nailed down to hold it in position. The top horizontal piece of each frame was known as the top plate. In the course of carrying out that work, the plaintiff noted that frame 39 had a problem at the end of the cavity slider where it met frame 38. It appeared to the plaintiff at the time, while they were erecting the wall frames, that frame 39 needed a stud underneath the plate. No extra timber had been supplied and there was nothing marked on the plan to indicate that something had to be done to rectify the defect which the plaintiff saw. They went ahead with the work in the hope that the builder would come along and sort out the problem. The builder never arrived and the plaintiff and his son went ahead and completed the job. It emerged in cross-examination that in order to attach the top plate of frame 39 to the top plate of frame 38, the plaintiff or his son skewed three or four nails into frame 38. There was also a gang nail over the top. A gang nail is a metal plate with spikes in it. It took two days to erect the frame on the site. The roof trusses were not on the site during that period. The plaintiff and his son left the job and went to another job. Approximately two days later they returned to the site. The trusses were on the site laying across the wet areas at the back of the house on the erect frames. They were resting on the top plate of two load bearing walls, which were external walls, and resting on the internal frames. The plaintiff and his son then set the whole roof out on the top plate by walking around the top plate of the erected wall frames. Having done that, they set about putting the trusses in position. To do that the plaintiff and the son followed the usual practice of walking on the top plate and carrying the trusses into position. They worked on 16 March and knocked off, intending to get an early start the next day, which they did. The first truss that they moved on the morning of 17 March was a girder truss which had to go across the garage sections of the house. A girder truss is generally a stronger truss. It is a bit heavier as it has brackets bolted to it and a lot of other trusses fit onto it and it carries the weight. The subject girder truss was made of hardwood and weighed about 80 or 90 kilograms. Hence it was fairly heavy and it was a two man job to move it. The son was carrying the truss on the external wall and the plaintiff was starting to walk from bedroom 2 along frame 39 towards frame 38. When he got halfway across, the plate gave way beneath him and he fell to the concrete slab hitting his chin on the truss on the way down and landing on his "rump" on the floor, mainly on his left side. He immediately felt terrible pain and knew there was something wrong. A person working next door heard the plaintiff scream, came over and by the use of a mobile phone rang an ambulance. The plaintiff was conveyed to the Woden Valley Hospital. His contention was that frame 39 was defective. The top plate was short. It should have butted right into frame 38.

7. In cross-examination, it was put to the plaintiff that there were a number of measures which he could have adopted to avoid the collapse of frame 39. It was suggested that instead of walking on the top plate, he could have used planks. He rejected that on the basis that "You don't use planks along internal walls". It was further suggested that he could have put a timber prop under the frame to give it some support on a temporary basis. He rejected that as something which the builder should have done. Lastly, it was put to the plaintiff that having noticed the defect in frame 39, he did nothing about bringing the defect to the notice of the builder and, at the relevant time, he was not thinking about the defect. He was on the top of the frame looking down and could not see the defect. All the top plates looked the same. In rejecting the temporary prop measure, he said that he did not think of it at the time, that other people could have done that and that there was no timber delivered on the site for extra work. In any event, there was no indication marked on the plan that any extra work had to be done.

8. Both parties called expert witnesses. The plaintiff's witness was Willem van Leeuwen, a civil engineer. He had furnished a report to the plaintiff's solicitors. In his report, which he confirmed in his oral evidence, Mr van Leeuwen expressed the opinion that frame 39, as supplied, was poorly designed and fabricated as it relied totally on nail fixings into the end grain of an adjacent top plate. In his oral evidence he said that frames 38 and 39 were non-load bearing walls but even so, non-load bearing walls are required to take loads from time to time, quoting from the Australian Standard Timber Framing Code, p1,684. As far as the use of scaffolding is concerned, he said in cross-examination that it is not used for single storey construction because it is not cost effective. Generally, it is an accepted industry standard amongst carpenters that the way of building a roof is "to basically use the existing frame and walk along the top plates".

9. The defendant's expert witness was Ronald Swanton Beckett, a consulting engineer. He had furnished two reports to the defendant's solicitors. The reports were in evidence. Ultimately, it was common ground that frame 39 as supplied by the defendant was shorter than its top plate and a packing stud would have been required. Mr Beckett said in his second report,

"... commonsense would dictate that the opening should be supported by a temporary prop until all construction and fixing details between frames 38 and 39 had been completed".

10. Mr Beckett's contention was that the plaintiff and his son should have used scaffolding planks to spread their weight when working at the extremities of the incomplete frame structure. According to Mr Beckett, the plaintiff should have used a scaffolding plank which would have been about three feet off the ground and he would not have needed to step on the frame at all.

11. Gregory Desmond Dawe, a partner in the defendant firm, gave evidence on behalf of the defendant. For the purposes of his evidence it was common ground that frame 39 was supplied as depicted in details 1 and 2 of appendix A to the report of Mr van Leeuwin. Having been shown those details, Mr Dawe said in evidence-in-chief that if he had to distribute roof trusses on a roof as in this case, he would walk on the top plate above the cavity sliding door after he had secured it. This could be done in a number of ways, namely, by installing a temporary prop or putting a plank across the top plate and probably two or three other ways. He produced in evidence a video of himself and another carpenter carrying a roof truss into position using a plank to by-pass the top plate above the cavity sliding door. He also demonstrated, by video, the insertion of a single prop as one of the methods that might have been used if somebody wished to walk on the non-load bearing wall which was frame 39.

12. In cross-examination he said that if the end trimmer of frame 39 was firmly nailed to the end stud of frame 38, one would have a reasonably secure top plate but he would certainly not walk on it. But he was quite firm in his evidence that he would walk on the top plate when he was satisfied that the wall frames were secure. That is the normal way that roof trusses are carried, ie, by walking on the top plate. At the end of his evidence, it was clear that frame 39 needed some attention before anyone walked on it. It was unsafe to walk upon otherwise.

13. Applying the criteria laid down in Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, I conclude that in supplying frame 39 in that condition, the defendant was under a duty of care to the plaintiff and his son to supply frames that were safe to walk upon as was customarily done in the housing construction industry. The defendant was guilty of a breach of that duty of care in failing to complete the timber frame 39, failing to provide instructions to the plaintiff of the need to do some work on the frame before walking on it, failing to warn the plaintiff that a stud was missing and failing to advise or direct the plaintiff not to walk on the top plate of frame 39 because there was a stud missing.

14. I turn to the plaintiff's claim pursuant to s75AD of the Trade Practices Act 1974 (Cth). Such a claim was pleaded in addition to and in the alternative to the plaintiff's claim in negligence. It was badly pleaded. The writ of summons was issued by the plaintiff on 2 April 1996. It named Canberra Wall Frames as the first defendant. The writ of summons was amended by the issue of an amended writ of summons on 6 May 1996. That writ named Canberra Furniture Manufacturing Pty Limited, Dawe Industries Pty Limited and Dosyo Pty Limited trading as Canberra Wall Frames as first defendants. The three named companies purported to enter an appearance on 9 May 1996 in the following terms,

"ENTER an appearance on behalf of CANBERRA FURNITURE MANUFACTURING PTY LIMITED (ACN 008 644 540), DAWE INDUSTRIES PTY LIMITED (ACN 008 576 823) and DOSYO PTY LIMITED (ACN 008 620 773) trading as CANBERRA WALL FRAMES, the first defendants in this action."

15. By identifying the partners of the defendant, the plaintiff did not alter the party which was the defendant to the action even though the writ of summons purported to name the three corporations trading as Canberra Wall Frames as "first defendants".

16. In the original statement of claim (attached to the original writ of summons) which named Canberra Wall Frames as the first defendant, it was pleaded in paragraph 1 that the first defendant is a company capable of suing and being sued in its corporate name and style. This was patently wrong, because Canberra Wall Frames was not incorporated. By the amended statement of claim, which was attached to the amended writ of summons wherein the three named companies trading as Canberra Wall Frames were named as "first defendants", it was pleaded in paragraph 1 that the first defendants are companies capable of suing and being sued in their corporate name and style. This was an inappropriate pleading because even after amendment, the defendant remained Canberra Wall Frames.

17. Actions by and against firms and persons carrying on business in names other than their own are governed by the provisions of Order 50 of the Supreme Court Rules which enables persons claiming or being liable as co-partners and carrying on business within the jurisdiction to sue or be sued in the name of the firm of which such persons were co-partners at the time of the accruing of the cause of action.

18. As long ago as 1879 it was recognised that some difficulty may arise with the provision of rules of court which enables partners to be sued in the name of the firm. As James LJ observed in Ex parte Blain (1879) 12 Ch D 522 at p533, the constitution of a firm may change and the name of the firm continue with the consequence that the firm, at the time when the action was brought, may have consisted of entirely different persons from those of whom it consisted at the time when the cause of action against the firm arose. No doubt it was with such problems in mind that a special rule relating to the execution of judgment against a firm has been made; see O50 r8.

19. The correct identification of the defendant as Canberra Wall Frames is important for the purpose of the pleading of a cause of action pursuant to s75AD of the Trade Practices Act (1974) Cth which applies only to corporations. It reads as follows,

"(1) If:

(a) a corporation, in trade or commerce, supplies goods manufactured by it; and

(b) they have a defect; and

(c) because of the defect, an individual suffers injuries:

then:

(d) the corporation is liable to compensate the individual for the amount of the individual's loss suffered as a result of the injuries; and

(e) the individual may recover that amount by action against the corporation; and

(f) if the individual dies because of the injuries - a law of a State or Territory about liability in respect of the death of individuals applies as if:

(i) the action were an action under the law of the State or Territory for damages in respect of the injuries; and

(ii) the defect were the corporation's wrongful act, neglect or default."

20. A corporation is defined as meaning,

"... a body corporate that -

(a) is a foreign corporation;

(b) is a trading corporation formed within the limits of Australia or is a financial corporation so formed;

(c) is incorporated in a Territory; or

(d) is the holding company of a body corporate of a kind referred to in paragraph (a), (b) or (c)."

21. As the defendant is not a corporation within the meaning of s75AD, it can have no liability for defective goods pursuant to that section. The plaintiff's claim based upon s75AD fails in limine. I note that the defendant did not recognise at trial that it was not a corporation within the meaning of s75AD. Counsel for the defendant did not argue that s75AD could not apply to the defendant because it was not a corporation.

CONTRIBUTORY NEGLIGENCE

22. Particulars of the contributory negligence pleaded against the plaintiff are set out in the amended defence as follows,

"(a) Failing to take sufficient care for his own safety;

(b) Walking across a timber frame when it was unsafe to do so;

(c) Being a person who was either directly or as an independent contractor carrying out building work he failed to take all measures necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work in particular:

(i) he failed to provide suitable and safe scaffolding in breach of regulation 73(1) of the regulations under the Scaffolding and Lifts Act 1912-1948 (NSW) as applied and modified in the Australian Capital Territory;

(ii) he failed to provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than 6 feet in breach of regulation 73(3) of the said regulations."

23. It was submitted on behalf of the defendant that the plaintiff in erecting the frame really had his safety in his own hands. He had observed the absence of the prop and realised that the frame would not be safe to walk upon unless some attention was given to that factor. Yet when he came back to the job two days later, he had forgotten that frame 39 needed a prop and he walked on the top plate.

24. I find that the plaintiff had forgotten that frame 39 needed a prop and, in the strenuous exercise of carrying the roof truss and balancing on a fairly narrow top plate, he walked along the defective frame according to the usual practice and was not able to see from his position on the top of the frame the defect. All the top plates looked the same from where he was. It is true that if he had remembered the defective frame, he could have done a number of things to make it safe but he did not remember and I do not think it amounts to contributory negligence to forget that the frame was defective. See generally McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306.

25. I turn to the allegation of contributory negligence set out in (c) above. The relevant parts of reg 73 of the Regulations under the Scaffolding and Lifts Act, 1912-1948 (New South Wales) in its application to the Australian Capital Territory pursuant to the Scaffolding and Lifts Act 1957 (ACT) provide that,

"Any person who directly or by his servants or agents (including every independent contractor from time to time engaged in that work) carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose, without limiting the generality of the foregoing, he shall -

(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations;

(2) provide and maintain safe means of access to every place at which any person has to work at any time;

(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet;

..."

26. In hearing submissions on behalf of the defendant that the plaintiff's failure to comply with reg 73 amounted to contributory negligence, I ventured the response that such a claim was novel in my experience. Counsel did not cite any authority for his proposition at that stage. Later in his submissions, however, he referred to Davey v Skinner [1961] NSWR 216 at p221 where Evatt CJ and Herron J said,

"The respondent argues that the obligations imposed by regs 73 to 80 are directed to a person who contracts to build the whole structure or building or, as in the present case, to the building owner himself. His contention is that a person who carries out building work by servants or agents must relate to the head contractor who normally employs servants or sub-contractors. But we see no reason for reading down the ordinary meaning of the words used. The plain words refer to a person who carries out building work whether he does so himself, that is directly, or whether he engages servants or agents to do so for him. The obligation rests on the active person, that is the one who carries out the work in actual fact."

27. However, later in the same judgment there Honours make it clear that the obligations of the Regulations are not imposed on every workman and employee employed on a building project. Such persons are, their Honours said, engaged on building work but are not carrying out the work as that phrase is used in the Regulations. On the facts of this case, Sitecove Pty Limited was the builder of the cottage in the course of erection and it was Sitecove Pty Limited who was carrying out the work, as that phrase is used in the Regulations. Accordingly, I hold that the plaintiff was under no obligation to comply with reg 73. The onus of proving contributory negligence is on the defendant and I hold that it has failed to prove it.

Damages

28. As previously stated, the accident happened on 17 March 1994. The plaintiff was 57 years of age at the date of the accident. He was initially treated at Woden Valley Hospital and was transferred to Calvary Hospital the same day. He had sustained a compression fracture of T12 and L1 vertebrae. The nature of his treatment was bed rest and analgesics. After a period of approximately two weeks in hospital, he was allowed home. He stayed at his daughter's place in Canberra for about a week. He then returned home to Mollymook. He had physiotherapy at Milton for the next two months. He started to exercise and swim but this seemed to aggravate symptoms so he stopped. His progress was complicated by the passing of blood in his urine and he was investigated by Dr Peter Hughes, urologist. These symptoms settled but his back pain persisted.

29. He was involved n a motor vehicle accident in October 1994 following which he developed pain in his neck and numbness in the fingers of the right hand. There was also increase in low back pain. He was diagnosed as having sustained a whiplash type injury and was referred again for physiotherapy which he continued for the next six weeks. By August 1995 the compression fracture had healed but he has been left with some residual mechanical deformity.

30. When examined by Dr J R Corry, rehabilitation specialist, on 24 July 1995, he was complaining of persisting pain in the low lumbar region, spreading into the back of both buttocks but on examination he had a good range of movement and only a moderate restriction of rotation and lateral flexion and in forward flexion. Dr Corry expressed the opinion in his report of 3 August 1995 that there was no structural reason why the plaintiff's lumbar spinal injury could not recover to the point that he could return to carpentry work in the building construction industry, but one of his major disabilities was his loss of confidence and thus it would not be safe for him to work at heights. Dr Corry said that the degree of disability was such that the plaintiff was not be fit for anything but the lightest of occupations.

31. The plaintiff's progress was compounded by the motor vehicle accident in October 1994. The symptoms relating to his whiplash type injury were not in themselves significantly disabling but they further sapped his confidence and self-esteem.

32. The plaintiff still has problems with his back but it is something he can handle so long as he is not continuously bending over or doing any heavy lifting. In 1995 he started having panic attacks. He was treated by a psychologist and responded steadily to therapy. In his report to the plaintiff's solicitors dated 10 June 1997, the psychologist reported that the plaintiff was still in a very fragile state emotionally. In a further report dated 10 August 1997 the psychologist said that the plaintiff was making worthwhile progress in dealing with his anxiety and was no longer dependent on medication to relieve panic attacks. The psychologists recommended counselling for anxiety, depression and sexual difficulties to continue over the next six months. The plaintiff continued that therapy even to the date of trial. He said in evidence that he was still taking medication to help control panic attacks.

33. The plaintiff felt very severely his loss of his trade. He had sold most of his tools that he had acquired over the years. He has given up playing golf because of the problem with pain in the back. He still does a bit of gardening but he gets his lawn mowed. Otherwise there is not a great deal he can do around the house. He still takes Panadeine Forte.

34. Taking into account all matters relevant to general damages, I award the sum of $40,000 under this component. I apportion $20,000 to the past. The interest on that amount at two per cent for the period between the date of accident and judgment is approximately $5,250 and I award that amount by way of interest on the component for past general damages.

35. In respect of past economic loss, the plaintiff has not worked since the accident and claimed in his particulars a loss of $591.94 net per week. However, there are some imponderables which have to be taken into account. As counsel for the defendant demonstrated, the evidence was that he worked in partnership with his wife over the relevant years so her contributions to the income claimed by the plaintiff would have to be recognised in calculating damages for past economic loss. Counsel also demonstrated that for the year 1991/92 the plaintiff's income as claimed in the partnership return was only $5,909. There were other criticisms which I do not propose to reproduce. Counsel for the plaintiff recognised the problems and submitted that even if the wife's contribution to the income earning capacity was ten per cent, the plaintiff had demonstrated a past loss of not less than $450 net per week. Counsel for the plaintiff suggested that three months be deducted from the past for incapacity due to the motor vehicle accident which rendered a period of 241 weeks at $450 net per week rendering a figure of $1,084.50. I do not think that the plaintiff has demonstrated a past loss of $450 net per week but it is difficult to discern what his earnings would have been. As an intuitive approach, I assess the sum of $75,000 for past economic loss and I add a lump sum interest component of $10,000.

36. With regard to future economic loss, the plaintiff claimed that he was going to work until "most probably until 65". He said that he was going to work with his son for another 12 months then go to Mollymook, live there and work there. I was left with the impression that at the date of the accident the plaintiff was winding down his trade activities. He was going to relocate to Mollymook and run a maintenance type business. It is difficult to make a prophecy about what his earning capacity for the future would have been but for the accident. Counsel for the plaintiff submitted that an assessment based on three and a half years at $400 per week less 15% yielding a figure of $57,800 would be appropriate. I think the plaintiff would be adequately compensated with a figure of $40,000 and I assess this head of damages at that figure.

37. The out-of-pocket expenses were agreed at $4,723.95.

38. There was a claim for future medical expenses. I think it is reasonable to allow $2,000 for that.

39. There is also a claim for lawn mowing and Griffiths v Kerkemeyer. Counsel for the plaintiff suggested a figure of $25, twenty times per year for ten years yielding a figure of $8,000. I award $5,000 under this head.

40. In summary, therefore, my assessments of damages are as follows,

General damages 40,000.00

Interest on the past component 5,250.00

Past economic loss 75,000.00

Interest on past economic loss 10,000.00

Future economic loss 40,000.00

Agreed out-of-pocket expenses 4,723.95

Lawn mowing and Griffiths and Kerkemeyer 5,000.00

TOTAL - $ 179,973.95

41. I have considered the total figure as a global sum. I think it is reasonable compensation for the plaintiff and confirm my provisional assessments.

42. There will be judgment for the plaintiff in the sum of $179,973.95.

43. I shall hear counsel on the question of costs.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gallop.

Associate:

Date: 28 May 1999

Counsel for the Plaintiff: Mr R Crowe

Solicitor for the Plaintiff: pappas J - Attorney

Counsel for the Respondent: Mr G Stretton

Solicitor for the Respondent: Mallesons Stephen Jaques

Dates of hearing: 24, 25 November 1998

4 February 1999

Date of judgment: 28 May 1999