Gary Raymond Frost v Woolworths Limited [2000] ACTSC 106 (24 November 2000)

Last Updated: 18 January 2001

Gary Raymond Frost v Woolworths Limited

[2000] ACTSC 106 (24 November 2000)

CATCHWORDS

NEGLIGENCE - employer's liability - claim in contract and tort - whether claim in contract necessary or desirable - duty of employer independent of contract - whether nature of duty different from that recognized in Donoghue v Stevenson - "personal" duty to ensure care is taken by others - practicable alternative available to minimise risk of injury - whether evidential onus lies on employer to show that it would be unreasonable to require that alternative to be taken - proof of cost - whether limited to proof of cost of obviating danger to plaintiff.

DAMAGES - plaintiff injured back whilst attempting to lift 30 kg carton - disc herniation - aggravation of pre-existing degenerative condition - two operations for fusion and disc removal - no return to work - development of chronic pain syndrome - whether physical capacity reflects income-earning capacity - discount for contingencies.

Evidence Act 1995 (Cth), s 80(b)

Law Reform Miscellaneous Provisions Act 1955, s 15

Occupational Health and Safety Act 1989, s 95

1.

2. Wilsons & Clyde Coal Co v English [1937] UKHL 2; [1938] AC 57

3. Astley v Austrust Limited [1999] HCA 6; (1999) 197 CLR 1

Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562

Smith v Baker [1891] UKHL 2; (1891) AC 325

Colonel Clints Bargain Stores Pty Ltd v Molero (1997) Aust Torts Reports 81-407

Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672

The Commonwealth of Australia v Introvigne [1982] HCA 40; (1982) 150 CLR 258

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

Miletic v Capital Territory Health Commission [1995] HCA 13; (1995) 130 ALR 591

Hamilton v Nuroof (WA) Pty Limited [1956] HCA 42; (1956) 96 CLR 18

Turner v South Australia (1982) 56 ALJR 839

Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Collins v Australian Iron and Steel Limited (1947) 48 SR 55

Jambrovic v ACT Health Authority [1992] ACTSC 62; (1992) 108 FLR 8

Cekan v Haines (1990) 21 NSWLR 296

Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431

ACT v Badcock [2000] FCA 142; (2000) 169 ALR 585

Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316

Stevens v Brodribb [1986] HCA 1; (1986) 160 CLR 16

Dedousis v Water Board [1994] HCA 57; (1994) 181 CLR 171

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

Grincelis v House [2000] HCA 42; (2000) 173 ALR 564

Glass H, McHugh M & Douglas F in Liability of Employers (2^nd ed) 1979

A M  Dugdale, "Public authority liability: to what standard?" (1994) 2 Torts Law Rev 143

No. SC 892 of 1994

Judge: Miles CJ

Supreme Court of the ACT

Date: 24 November 2000

IN THE SUPREME COURT OF THE )

) No. SC 892 of 1994

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GARY RAYMOND FROST

Plaintiff

AND: WOOLWORTHS LIMITED

(ACN 000 014 675)

Defendant

ORDER

Judge: Miles CJ

Date: 24 November 2000

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $838,515.00.

2. There be liberty to apply within 14 days in respect of any arithmetical error.

4. The plaintiff sues the defendant for damages suffered on 21 September 1993 as a result of injury received whilst employed by the defendant. The statement of claim alleges breach of an implied term of the contract of employment, a breach of duty at common law and a breach of statutory duty. There is no evidence of breach of any statutory duty and that part of the claim is not pressed. The implied term and the common law duty is pleaded in par 2 of the statement of claim as a duty "to ensure that all reasonable care was taken to avoid exposing the Plaintiff to unnecessary risks of injury". The case was conducted as if it were essentially a claim in negligence.

5. Particulars of breach were furnished as follows:

"(i) permitting the Plaintiff to carry on his working at a "pick" rate of 1,000 cartons per day or 120 to 140 items per hour, thereby creating a belief in the Plaintiff that he was required to work quickly without proper or adequate regard for his safety;

(ii) failing to ensure that the Plaintiff was adequately instructed in safe lifting techniques, and trained and supervised in the performance of lifting tasks using safe techniques;

(iii) permitting the Plaintiff to work in an environment which did not have adequate space between the items to be picked and the floor of the storage level above the ground floor level storage, thereby requiring the Plaintiff to lift whilst in a stooped position;

(iv) failing to ensure that a forklift or other device was used to turn pallets containing items to be picked once the front cartons in a stack had been removed, thereby avoid (sic) exposing the Plaintiff to risk of injury from having to lean into a pallet and then lift;

(v) failing to so stack the cartons as to be capable of being freely lifted from either side of the stack without the need to scoop or lean and then lift;

(vi) in utilising a system whereby pallets were placed against each other which thereby permitted this flap to become stuck between carton on the pallet on which it rested and the carton on the adjacent pallet."

6. In the defence dated 28 February 1995, the implied term was not admitted, the existence of any duty was not admitted, and the injury and breach of duty were denied.

Facts

7. The facts, although initially difficult to understand without the diagrams and sketches in evidence, were relatively simple.

8. The plaintiff was employed as a "pallet picker" at the defendant's bulk store or warehouse at Fyshwick. He had to make up orders for various items ordered by local supermarkets and retail stores owned and operated by the defendant. The process was called "picking" or "stockpicking". It required the pallet picker to take cartons of stock stored in the warehouse and to load them on to one of two pallets on a piece of mobile equipment known as a pallet jack. The picker had to drive the pallet jack to the various places in the warehouse where the cartons were stored, and ultimately to a point where the loaded pallets were taken away from the warehouse by truck.

9. The cartons stored were themselves stacked on pallets (preloaded pallets) which had been placed by forklift into metal racks which were part of a system of racks likened by counsel (with the assent of the plaintiff) to a "giant meccano set".

10. The racks were set out in rows with aisles between them for the purpose of access by forklift drivers and pallet pickers. They were so high that a person in the aisle would have to look upwards to see the top. The vertical members were, at least in the vicinity of where the plaintiff received his injury, wide enough to permit the placing and removal of the pallets by means of the forklift. However, there was no room for a person to step into the rack and move around the pallet in the rack. There were no shelves. Instead there were horizontal beams which supported the weight of the pallets and gave stability to the rack. The horizontal beams were at various heights. The pallet pickers worked at floor level. In some places the lowest horizontal beam was nevertheless so far off the floor that it permitted the pallet, or cartons not on a pallet, to be placed directly on the floor.

11. The plaintiff was injured while working in aisle 33. It is not clear whether aisle 33 was wide enough to permit two forklifts to pass each other. The defendant had in place a system whereby forklifts were permitted to be driven in that aisle in one direction only and solely for the purpose of collecting and removing pallets which had been emptied by the pickers. For the purpose of placing preloaded pallets into the rack, the forklift driver used one or other of the aisles adjacent to aisle 33. The forklift driver would place a preloaded pallet into the rack so that it was, from the standpoint of someone in aisle 33 behind a pallet yet to be unloaded in aisle 33. When the cartons on the pallet in aisle 33 had all been removed, the forklift driver would drive into aisle 33, remove the empty pallet and place it in a stack at the end of the rack. The forklift driver would then return to the aisle adjacent to aisle 33, and, by means of the tines of the forklift, manipulate the preloaded pallet that had been behind the pallet in aisle 33 by then removed, and move it forward into the space formerly occupied by that removed pallet. Thus the replacement preloaded pallet and the cartons loaded on it were available to the picker in aisle 33 and the process continued over again.

12. Generally, cartons on a preloaded pallet were delivered to the warehouse already stacked on the pallet and constrained around the sides by shrunken plastic wrapping. Usually the wrapping was removed before the preloaded pallets were placed in the racks. The cartons were made of cardboard. At some stage of the process, either before or after arrival at the warehouse, or both, a small proportion of cartons was damaged. Some cartons buckled at the top and bulged at the sides because of the weight of other cartons on top of them. Some had one or more of the top flaps or bottom flaps torn open for a variety of possible reasons. Sometimes the glue or adhesive tape used to hold the flaps in place would adhere to an adjacent carton, causing the two cartons to stick together with consequent difficulty for the picker in removing either carton.

13. The plaintiff who was 33 years of age at the time of his injury, joined the employ of the defendant in February 1993. He had had a variety of unskilled and semi-skilled jobs, including about 16 months in the canning factory at Batlow. That job required frequent lifting of crates and cartons of canned fruit and vegetables. He was experienced in lifting and handling the sort of items that were to be removed from the pallets in the racks and loaded on to the pallet jack in the defendant's warehouse. He was given no instructions in the techniques of lifting and handling goods on behalf of the defendant, but a Mr David Gibson gave him some instructions before he commenced the job as to what was required of him. Mr Gibson also told him that once he got to know the job he was expected to move 140 cartons per hour or 1,000 cartons per working day. Mr Gibson further told him that he should ensure that the cartons were removed in such a way as to keep the top of the stack as level as possible and to avoid a stepped effect. It may be inferred that this practice, if followed, maximised the stability of the stack and to that extent reduced the risk of injury to the pallet picker in the event of the collapse of the stack. On the other hand, the practice required the picker, when removing cartons at any particular level, to reach across the pallet to remove the last of the cartons which remained, which at that stage were some distance from his body on the far side of the pallet. This manoeuvre placed greater stress on the spine of the pallet picker during the lifting and transferring of weight of the carton with the consequence of greater risk of injury to the spine than did the removal of the cartons closer to the picker.

14. With deference to the pleader, I find that the plaintiff received his injury in the way described accurately and succinctly in par 3 of the statement of claim:

"On or about 21 September 1993 in the course of his employment the Plaintiff was engaged in stockpicking to assemble an order which included a carton of sugar. The cartons of sugar was (sic) on a pallet at or near floor level. The cartons on the pallet at the front and top had already been removed. The Plaintiff was therefore required to lean well forward across the pallet and to lift the carton of sugar at the rear of the pallet. The rear underside flap of the carton had become displaced from its intended position and had become placed between the carton underneath it and the carton on an adjacent pallet placed next to the pallet on which the carton was being lifted by the Plaintiff. As he lifted the carton his attempt to lift was thereby restricted and he thereupon suffered pain and injury to his lower back and suffered loss and damage."

15. According to answers to interrogatories, admitted in the plaintiff's case, there were "selective racking beams" above the pallets stacked with cartons of sugar. The beams were said to be "approximately 1.8 metres from the bottom of the bottom pallet and about 2.2 metres from the floor". Further, answer A9(d) refers to the dimensions of "the only carton of sugar". The latter answers suggest that the pallet from which the plaintiff was removing cartons of sugar was sitting on the floor not as the plaintiff claimed on a beam at knee height or 50 cms off the floor.

16. The pallets were stacked at several levels. The pallets were made of hardwood timber and were in dimension 1.18 metres square and 150 mm high. Overall, the stacked cartons on the pallets varied in height, size and number. There was no evidence of how many cartons were stacked on each pallet at the time of delivery into the rack, nor of how many remained at the time the plaintiff commenced his task of removing one or some of the cartons containing bags of sugar. However, it may be inferred that those cartons were stacked in levels of 12 cartons at each level. The dimensions of the cartons of sugar were 380 mm long, 280 mm wide and 200 mm high. The cartons each contained 15 bags of sugar weighing 1 kg each.

17. From the plaintiff's position the carton on the adjacent pallet was behind the carton that the plaintiff was trying to move, so that the carton on the adjacent pallet was likely to be hidden from the view of the plaintiff. There was, therefore, nothing visible to indicate to the plaintiff why the carton he was trying to move felt as if it was stuck. In that state of ignorance he "jiggled" it three times successively until he sustained pain in his lower back. It felt, he said, like an explosion.

18. In his evidence the plaintiff said that immediately after the onset of pain he walked towards the office in order to report what had happened. He said that when he reached the end of the aisle and turned to go past the end of the rack, he looked back into the rack and saw a carton in the adjacent aisle pushed against one or more of those on the pallet he had been unloading. In particular, he noticed that an underside flap of the very carton that he had tried to move was trapped or jammed between one of the cartons in the adjacent aisle and another carton underneath that carton which he had been trying to lift. His view in that regard was unobstructed, he said, because in aisle 33 the only items between him and the cartons in question were two bags of flour, one white and one wholemeal, which were sitting, not up in the rack on a pallet, but on the floor without a pallet and were therefore not high enough to obstruct his view. Thus, on the plaintiff's case, the primary explanation for the difficulty in lifting the carton to be removed was that one of the bottom flaps had become loose and was hanging down over the carton underneath it. The flap then became jammed by the carton in the adjacent aisle being pushed hard against the flap and the carton underneath the carton to be removed.

19. Mr Stretton, for the defendant, submitted for a variety of reasons that I should not accept the plaintiff's account of how the carton was difficult to move and his explanation of how the flap caused the difficulty. One reason advanced in the submission was that the plaintiff's account was not supported by the only other witness, Mr Keith Odd, as to the events.

20. Mr Odd was called in the defendant's case. All Mr Odd said of substance was that he was "three bays back" on his forklift, waiting for the plaintiff to finish loading the pallet jack when he saw the plaintiff "reach across to the last box at the back" and heard "this crack or bang or something". He said that he also heard the plaintiff say, "Oh, me back". He further said that he did not believe that it would have been possible, from the end of the rack, to see back into where the plaintiff claimed he saw the flap jammed by the carton behind. The reason for his belief was that "there's a line of pallets that you pick from". He did not say anything, nor was he asked, about bags of flour allowing a line of sight into the rack on that day. He did say, however, something about "then it was all right to put pallets up against the back of all the pallets - of all the racking - two stacks" which is not very clear but seems to be consistent with the plaintiff's description of the system.

21. The plaintiff's evidence was such that I thought it needed to be examined with care. Although he was adamant that he saw the flap trapped between the cartons, there is an inherent unlikeliness about his ability to have made that observation, since one would expect the flap to be obscured from view. Further, despite his insistence on the explanation via the observation of the jammed flap, the plaintiff seemed keen to volunteer other explanations, such as adhesion by glue or adhesive tape or the collapse or buckling of a carton, both of which he said always added to the difficulties of lifting a carton from a stack. The plaintiff also tended to blame fellow employees for leaving the stack uneven and the defendant for not providing a picker stick, which, he complained, would have been useless anyway. He maintained in his evidence that he had been given only half an hour's instruction on how to do the job when he first joined the defendant, whereas in his answers to interrogatories he said that the instruction had taken two hours.

22. The plaintiff's account of how he noticed the jammed flap does not fit easily with his statement to Ms Crichton, the psychologist, that he "noticed later that the box had bent under the weight of the sugar" nor with the question asked on his behalf in interrogatories, namely Q9(i), "Were any steps taken by the defendant to ascertain whether any cartons stacked on a pallet had become attached to another or other cartons?"

23. There are other inconsistencies and matters of exaggeration in the plaintiff's evidence, which I think unnecessary to set out in detail.

24. However, the only evidence called by the defendant was that of Mr Odd and it did not substantially damage the plaintiff's case. It was not put to the plaintiff that there was any inconsistency between his evidence and any account given by him when he reported the incident within what must have been minutes of its occurrence. An entry in what appears to be a record of accidents and injuries to employees is in these terms:

"G. Frost ... picking a box of sugar which was caught under the corner of the pallet, Gary says that he pulled at it and felt a pain in his lower back."

An Employer's Report of Injury is in similar terms with the addition of the words "he bent down". On the balance of probabilities, I accept the plaintiff's evidence of how he met with his injury and what he observed as to the jammed flap.

Liability: Contract

25. The next question is whether on the facts as found the plaintiff has established liability on the part of the defendant.

26. So far I have been careful to avoid stating simply that the defendant makes a claim in negligence. The statement of claim does not mention negligence. The claim is phrased distinctly and, presumably, carefully, as a claim for breach of contract and alternatively or additionally breach of a duty at common law imposed other than by contract, that duty being described as a duty "to ensure that all reasonable care was taken to avoid exposing the plaintiff to undue risks of injury".

27. Counsel did not address on the claim for breach of the alleged implied term of the contract of employment that the defendant was to ensure that all reasonable care was taken to avoid exposing the plaintiff to unnecessary risk. That was probably because there can be no doubt that there was such a term or similar term: Wilsons & Clyde Coal Co v English [1937] UKHL 2; [1938] AC 57.

28. The duty according to the contractual term is identical to that pleaded as owed independent of contract. I discuss the nature of that duty and the question of breach below.

29. I have occasionally been critical of claims for damages for work-related injuries being pleaded in contract and thereby raising unnecessary issues (which are almost always ignored in submissions). Contract may raise issues with respect to choice of law, limitation periods and remoteness of damage which are different from those in tort. The force of such criticism has been reduced by the decision of the High Court in Astley v Austrust Limited [1999] HCA 6; (1999) 197 CLR 1. The decision makes it clear that contributory negligence is no defence, and that apportionment legislation such as the Law Reform Miscellaneous Provisions Act 1955, s 15, does not apply to a claim for breach of contract, notwithstanding that the breach may also be a tortious wrong.

Liability: Breach of Duty of Employer/Negligence

30. I turn now to the claim for breach of duty. That the common law casts a duty of care on an employer towards an employee is now so widely accepted that it barely needs mention, let alone discussion. Glass H, McHugh M & Douglas F in Liability of Employers (2^nd ed) 1979, say at 15 that "the relationship of employment generates the duty of care". There can be little doubt, in my view, that breach of the duty gives rise to what, since Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562, is usually regarded and categorised as an action in negligence. However, it was not until six years later in Wilsons & Clyde Coal Co v English that English law (in contrast to Scots law) clearly acknowledged the duty as tortious rather than essentially contractual, previous statements to that effect in Smith v Baker [1891] UKHL 2; (1891) AC 325 being considered obiter. The general scope of the duty of care of an employer since then has been described, and is often pleaded, in different ways. Glass, McHugh and Douglas, citing several authorities in Australia and England, put the duty at its broadest when they say at 2 that "the duty has been consistently formulated as a duty to take reasonable care for the safety of the employee in all the circumstances of the case".

31. Moreover, the content of that duty, that is to say, the conduct required of the employer to discharge the duty to take reasonable care in any individual case, varies according to the circumstances. Although it is generally recognized that the employer is under a duty to provide reasonably safe plant and equipment, to provide a reasonably safe place of work and to provide a reasonably safe system of work, these are, strictly, examples of how the duty is to be discharged. The two distinct principles relating to the duty of care and the standard of care have been stated in different ways on many occasions, but sometimes need to be revisited because the blurring of the distinction may be illustrative of error. The distinction was drawn with clarity by Madgwick J in the Full Court of the Federal Court of Australia in Colonel Clints Bargain Stores Pty Ltd v Molero (1997) Aust Torts Reports 81-407, where his Honour said (adopting the submissions of counsel, Mr Gross QC) at 63,733:

" (i) The employer's duty of care may require the provision of a safe system of work in respect of a particular risk of injury, or it may not. If either the task concerned is a simple one, which cannot sensibly and reasonably have a system imposed on its performance, or, for any other reason, the exercise of reasonable care does not require the imposition of any system, then there is no duty, or no operative duty, to provide a safe system of work. The notion of the requirement of a safe system of work is simply a means of categorising, in certain cases, part of the content of the employer's overall, and general, duty of care.

(ii) It is a matter of confusion to treat an obligation to provide a safe system of work as co-extensive with the foundational duty to take reasonable care in all the circumstances.

(iii) such a formulation tends to obscure the `threshold question': whether the circumstances of the work were such as reasonably to require a system of work to guard against the risk of injury from the performance of some particular task."

32. The reference by Madgwick J to the foundational duty to take reasonable care in all the circumstances is a reminder that the liability at common law of an employer towards an employee is essentially a liability in negligence, that is to say, for breach of a duty of care arising in the circumstances described by Lord Atkin in Donoghue v Stevenson. Nevertheless, the liability of an employer (and some other categories of defendants in negligence) is regarded as having a special quality because, in addition to being vicariously liable for the individual acts or omissions constituting the negligence of its employees, an employer owes a personal duty not only to exercise reasonable care for the safety of employees, but to ensure that reasonable care is taken: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 per Mason J.

33. In that case Mason J expanded upon the nature of the personal non-delegable duty of care. After referring to the decision of the House of Lords in Wilsons & Clyde Coal Co v English, Mason J said at 681:

"The concept of the employer's personal duty as explained by Lord Wright amounts to a duty to see that care is taken, e.g., in the provision of safe premises and of a safe system of work. Although in this respect it imposes on the employer a more stringent obligation than that imposed by the general duty to exercise reasonable care and skill, Lord Wright characterized it as a particular exemplification of the general duty in its application to an employer with respect to the safety of his employees. So it is said that the employer in order to discharge his general duty of care for the safety of his employees must ensure that reasonable care and skill is exercised in relevant respects. Lord Wright's approach is vulnerable to the criticism that he advances no reasonable consideration for fixing the employer with the higher duty to see that care is taken instead of the duty that he himself take reasonable care."

34. At 687 Mason J explained the basis of the personal non-delegable duty as follows:

"The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care . . . In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised."

35. There is a reference in the opening and closing lines of the first of these passages and in the second line of the second passage to an employer's duty "to see that care is taken". However, this is no doubt a shorthand reference to the duty more fully described in the third sentence of the latter passage as well as elsewhere in the judgment (as in The Commonwealth of Australia v Introvigne [1982] HCA 40; (1982) 150 CLR 258 at 269-270) to "ensure that reasonable care and skill was exercised" (emphasis added).

36. Subsequent cases such as McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 and Miletic v Capital Territory Health Commission [1995] HCA 13; (1995) 130 ALR 591 in the High Court illustrate that a plaintiff employee may discharge the onus of proof relatively easily when alleging injury resulting from failure on the part of the employer to see that care is taken. In neither of those two cases did the High Court consider it necessary to refer to the non-delegable duty. As in the one case the employer was a limited company, and in the other a statutory corporation, the defendant could only be liable as a result of the acts of others. On the other hand, the plaintiff could not point to any negligent act or omission on the part of someone for whose act or omission the defendant might be vicariously liable. Any liability on the part of the employer had to involve a breach of the duty to ensure that others took reasonable steps to ensure the plaintiff's safety. McLean v Tedman is of particular significance because the majority (with whom Gibbs CJ agreed on the point) applied a principle that once it is established that there is an alternative and safe system which would have obviated the risk of injury to the plaintiff, it is for the defendant to prove that compliance with the alternative system is unreasonable.

37. Their Honours said at 314:

"It is said, nevertheless, that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury. We would reject the suggestion that the appellant bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our view, once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees on the ground that the increase in the time taken to do the work would have damaged the men's prospects of taking a second job."

38. McLean v Tedman was adopted in Miletic as laying down the standard of care which applies to an employer. In the latter unanimous judgment of the High Court it was said at 594:

"It is clear that the question whether a reasonable person would take steps to avoid a foreseeable risk of injury to another is to be answered by balancing `the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities' which may exist: Wyong Shire Council v Shirt (1980) CLR 40 at 47-8; [1980] HCA 12; 29 ALR 217 per Mason J. The Full Court should have undertaken that exercise by having regard to the possibility of serious injury and to the simple and inexpensive nature of the maintenance procedures which, according to the evidence, would have provided an effective solution to the problem of jamming castors. These considerations were properly to be balanced against the low degree of probability of an accident occurring as a result of the castors jamming. However, having regard to the nature of the duty involved, namely, to provide a safe place of work, McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; 56 ALR 359, that balancing exercise can only result in the conclusion that a reasonable employer in the position of the Commission would have maintained the castors on its beds in the manner suggested by Mr Simpson. The Full Court erred in finding otherwise."

39. In the present case, the statement of claim makes it clear that the plaintiff relies on the breach of the personal duty to ensure that reasonable care was taken. The purpose or object of the care is pleaded as the avoidance of "exposing the plaintiff to unnecessary risks of injury", but, in my view, nothing turns on this. In Kondis, Mason J referred to the duty "to ensure that reasonable skill and care is exercised in relevant respects". However, claims in negligence against an employer are frequently couched in terms of exposing the plaintiff to unnecessary risk. Inexhaustive inquiry suggests that the description of the employer's duty as a duty to take reasonable care "to avoid exposing the employees to unnecessary risks of injury", appeared first in the joint judgment of Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Limited [1956] HCA 42; (1956) 96 CLR 18 at 25. It was used by Gibbs CJ in Turner v South Australia (1982) 56 ALJR 839 at 842. It was expressly approved by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301, who added at 307 that "it is as accurate today as it was thirty years ago". The allegation is not strictly necessary: see the specimen statement of claim in Glass, McHugh and Douglas at 246.

40. In Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, a case of repetition strain injury, the plaintiff called expert evidence in chief about how the defendant's system of mail sorting should have been redesigned. In re-examination the expert suggested that proper supervision and training would have been beneficial. The trial judge rejected that evidence in chief but concluded that there had been inadequate supervision. McHugh J said at 180 as follows:

"The question on the foreseeability issue was not whether the omission to provide proper supervision gave rise to a foreseeable risk of injury. It was whether the conduct of the defendant in requiring the plaintiff to work in this system gave rise to a reasonably foreseeable risk of injury. If it did, the plaintiff was exposed to an unnecessary risk of injury if the injury was reasonably avoidable and in all the circumstances the failure of the defendant to eliminate the risk was unreasonable. In the present case, as her Honour found, the system gave rise to a reasonably foreseeable risk of injury. That risk could have been avoided by redesigning the system. But her Honour found that it could also have been avoided by proper supervision."

41. Mr Salmon QC, for the plaintiff, during his final submission, accepted that the matter of the jamming of the flap (par (vi) of the particulars) was not of itself sufficient to constitute breach, although it is to be taken into account as part of the surrounding circumstances. I think that is an appropriate approach to that particular of alleged negligence. Furthermore, in my view, the allegation in par (i) of the particulars, namely that the plaintiff was required to work so hard and so fast that he was induced to believe that he should have no proper or adequate regard for his own safety, is not made out as a matter of fact. The plaintiff, although quick to cast blame on the defendant for all sorts of things, did not give evidence of any such belief. No such belief is to be inferred, and, as I understand it, counsel ultimately did not rely on it. Again, however, the instruction that pickers were expected to remove 1,000 cartons per day is part of the background of what was clearly a busy workplace and heavy workload.

42. The remaining particulars of negligence may be described summarily as failure to instruct, failure to provide adequate work space and failure to provide forklift assistance. Paragraphs (iii) and (v) may, I think, be read together as failure to provide adequate work space.

43. In determining the adequacy or otherwise of the measures taken by an employer to avoid the risk of injury to an employee, the well known test formulated by Mason CJ in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 is commonly applied, and I will apply it. It is a balancing out of "the magnitude of the risk and the degree of probability of its occurrence along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have".

44. There can be no question that in the circumstances of the plaintiff's duties there was a foreseeable risk of injury to the mechanical processes of his spine when he was required to lift and move cartons from the rack to the pallet jack. The magnitude of the risk was increased where the plaintiff was required, on occasions, to lean across the width of the pallet in order to lift a carton on the far side. That is a matter of common knowledge and sometimes given as part of expert evidence in this Court: see s 80(b) of the Evidence Act 1995 (Cth) (the Evidence Act). Whether or not the magnitude of the risk was increased according to the height of the carton to be lifted relative to the plaintiff's body is not a matter of common knowledge, although ordinary experience suggests that bending or stooping to lift a heavy object usually increases the strain on the spine and hence the risk of injury. As to the probability of the risk occurring, again, whilst no arithmetical calculation is possible, it is a matter of common knowledge that persons engaged in occupations requiring repeated heavy lifting, like that of the plaintiff, are more likely to suffer spinal injury of the nature suffered by the plaintiff than persons engaged in occupations not requiring such activity. The further question is whether there were available practical measures to eliminate (or minimise) the risk and whether the defendant unreasonably failed to devise, institute and maintain a system whereby such measures were implemented.

45. The authorities suggest that there has been a change in judicial attitudes over time to the measures to be taken to avoid injury to employees required to carry out repetitive or heavy lifting in the course of duties. At one time, unless in exceptional circumstances, it was virtually impossible to win a lifting case. It was considered that, in occupations in which heavy or repetitious lifting was necessary, the risk of back injury was incidental to the task. In recent times, perhaps beginning with Collins v Australian Iron and Steel Limited (1947) 48 SR 55, it has become difficult for an employer to resist a claim by a genuine plaintiff. There is almost always a practical alternative which can be seen to minimise the risk. There has grown a pseudo-science based on statutory standards, ergonomics, extracts from publications in Australia and abroad, personal experience and common knowledge, from all of which expert opinion will find a way to suggest how the incidence of risk may be reduced or eliminated by the use of mechanical aids, manual assistance, appropriate instruction and training and increased supervision. Often expert evidence is unnecessary to reach such conclusions, but since s 80(b) of the Evidence Act allows experts to give opinions on matters of common knowledge, the evidence is admissible and given anyway.

46. No such expert evidence was given the present case. However, it is obvious that the risk of spinal injury to the plaintiff could have been significantly reduced, and in that sense eliminated, if the defendant's system provided for the use of a forklift to turn the pallets around once the picker had removed the cartons on the pallet which were closer to him. There were a number of forklifts and drivers available, but, on the evidence, assistance to the picker in that way was not within their line of duty.

47. I do not think that increased supervision or training would have reduced the risk to any significant extent. The plaintiff was carrying out his duties in the way in which he understood they were to be carried out, and I do not regard it as probable that he would have been required to do anything different by a supervisor. There is no evidence that, if the person supervising noticed that the plaintiff was having difficulty lifting the particular carton, the supervisor could or should have issued an appropriate instruction or warning in sufficient time for the plaintiff to avoid being injured.

48. For similar reasons, I do not think that further instruction on how to lift would have been likely to reduce the risk. The plaintiff from time to time encountered difficulty in lifting cartons in a variety of circumstances. He was hardly likely to have been instructed to abandon all attempts when any difficulty arose and was hardly likely to follow any such instruction to the letter anyway.

49. Lastly, there is the allegation in particular (v) that the defendant failed to provide sufficient working space to enable the plaintiff to move around the pallet instead of having to lean over it in order to lift. If the racks constituted a giant meccano set, then they were likely to be able to be dismantled and reassembled with relative ease. Again the incidence of the risk has to be measured against the countervailing factors, namely the cost of redesigning and reconstructing the stacks and, as a matter of inference, reducing the available space for stacking and storage within the warehouse and, as a matter of further inference, increasing the cost of stacking and storage and ultimately the price of the goods to customers. With regard to this last aspect there have been cases where the obviating measure is simple and clearly inexpensive: Miletic v Capital Territory Health Commission, see above [33] is such a case. In Jambrovic v ACT Health Authority [1992] ACTSC 62; (1992) 108 FLR 8, Higgins J held at 12 that the safety of employees must not be subordinated to "penny-pinching budgetary measures". In other cases, it seems to me, with respect, that there is considerable force in the remarks of Kirby J in Cekan v Haines (1990) 21 NSWLR 296, and Romeo v Conservation Commission (NT) [1998] HCA 5; (1998) 192 CLR 431 at [129] that in measuring the defendant's response to the duty of care, "it is necessary to evaluate more than simply the cost of preventing the particular accident" and to evaluate "the cost that would be incurred in the measures necessary to prevent all equivalent accidents of a like kind and risk". There is another view that such an assessment is irrelevant where the duty is not to take reasonable care, but to ensure that reasonable care is taken: see A M  Dugdale, "Public authority liability: to what standard?" (1994) 2 Torts Law Rev 143. Evidence to enable the assessment to be carried out does not appear to be required as part of the case for a plaintiff. A rare example of a case where a defendant has attempted to assess the cost in this broad way is in ACT v Badcock [2000] FCA 142; (2000) 169 ALR 585 (not a case of employer's liability). The attempt was unsuccessful.

50. In the present case, if a proper response to the duty of care to the plaintiff would have been for the defendant to provide forklift assistance or to redesign and reconstruct the stacking, then that would have been the proper response to the duty of care owed by the defendant to all persons in the position of the plaintiff. The balancing exercise as described in Shirt's case would have to take into account the cost of supplying forklift assistance to all such persons and also to redesigning and reconstructing a substantial part, if not the whole of the defendant's stacking and storage system.

51. But it is not for the plaintiff to call evidence on such matters once the plaintiff has passed the threshold test of showing a practical alternative system (McLean v Tedman at 14, above [33]). In the present case the defendant called no evidence except that of Mr Odd. There was nothing to contradict the plaintiff's account of how he was injured. There was no evidence to suggest that the defendant investigated the circumstances of the incident promptly after the plaintiff had reported it. There was nothing before the Court to assess the cost or inconvenience to the defendant of implementing the suggested measures by reversing the pallet by means of forklift once the picker had removed the closer cartons, or by redesigning and reconstructing the racks so that the picker could move around the carton. The absence of evidence does not mean that as a matter of law the defendant must fail, but it is a strong indication that the plaintiff should succeed. Moreover, there was nothing in the present case to show that the defendant had ever done anything to consider the magnitude of risk of injury on its premises or in its operations of the type suffered by the plaintiff, or to consider particular methods of reducing that risk, let alone consider the cost of devising and implementing such methods. Many authorities speak of the duty of the employer to "devise" and "institute" a safe system of work (e.g. Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316, Stevens v Brodribb [1986] HCA 1; (1986) 160 CLR 16, Dedousis v Water Board [1994] HCA 57; (1994) 181 CLR 171) thus emphasising the active and positive role required of the employer. Although the Occupational Health and Safety Act 1989 does not confer a right of action in respect of a contravention of its provisions (s 95), it requires positive action on the part of an employer in relation to developing and maintaining policies and practices to provide safety in the work place. These provisions reinforce the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and enable an inference of negligence to be more readily drawn where there is no evidence that the employer has given proper attention to them. It is not to be lightly concluded that the defendant ignored the safety of its employees. The defendant is a large public company employing many people in the Canberra area and elsewhere in Australia. Nevertheless it bears the evidential onus of proving that compliance with either or both of the practical alternative measures was unreasonable and, in my view, on the evidence, the defendant has not discharged that onus. There will be judgment for the plaintiff in the claim in contract and on the claim for breach of tortious duty, which, for reasons given, is better categorised as a claim in negligence.

Contributory negligence

52. Contributory negligence was pleaded. As already indicated, it is not available with regard to the claim in contract. With regard to apportioning the damages to be awarded for the defendant's negligence, the onus is on the defendant to show that the plaintiff failed to take reasonable care for his own safety. The concept of contributory negligence is very different from that of negligence. There is no question of a duty of care owed by the plaintiff to the employer or even to himself. The question is simply whether, in the circumstances, the plaintiff was taking reasonable care for his own safety. In the work place situation common inadvertence and the likelihood, sufficiently established in the present case, that the plaintiff was under pressure to get the job done must be considered. There were no real particulars of contributory negligence in the pleadings. At trial the only allegation in respect of the plaintiff's alleged failure to take reasonable care for his own safety was that he should have abandoned the attempt to lift the carton immediately after he found it difficult to do so. In fact all he did was to "jiggle" the carton a little in order to try to overcome the difficulty and then tried again to lift it. It was not and would not necessarily have been obvious to him on first encountering the difficulty that the difficulty could not be overcome without assistance or that it could be overcome by himself only by increasing the risk of injury to his spine. The defendant has not discharged the onus of establishing contributory negligence and damages will not be apportioned.

Damages

53. I turn now to the question of damages.

54. I deal first with the facts upon which the award of damages is to be based.

55. The plaintiff reported his injury to someone at the office and was told to go to Dr Eaton at Dickson. His wife collected him and drove him there. He was given a certificate to be absent from work for three days. He dropped the certificate back at the warehouse on his way home to Queanbeyan. He had continuing pain in his lower back and after a further week off work Dr Eaton thought he had recovered sufficiently to commence light duties. Upon his return to work he was given duties not involving lifting, and although he said in his evidence his condition did not improve, he went back to full duties with a sore back. During the next month he was recommended for light duties by the Industrial Rehabilitation Service. At that stage he felt well enough to try some overtime and went in to work on Saturday, 27 November 1993 to help paint traffic lines on the floor of the warehouse. After four hours his back was so painful he could take no more and went home to bed.

56. The plaintiff again contacted Dr Eaton the following Monday. He was sent for an x-ray and has never worked since.

57. It is clear that, although the incident in which he sustained injury was otherwise unremarkable, the plaintiff has been severely disabled as a result. It was not until a myelogram was taken on 26 June 1995 that disc herniation was discovered at the L5/S1 level. Further studies by way of MRI, x-ray and CAT scan have shown that he had a degenerative although symptomless spine which was rendered debilitating and painful by the act of attempting to lift on 21 September 1993. The condition has been exacerbated from time to time by the ordinary and foreseeable events of daily life. None of them has been sufficient to break the chain of causation.

58. Apart from two periods of some days or weeks in late 1997 and early 1998 on light duties, he has never returned to work of any description. He submitted twice to surgery for fusion and disc removal, once by Dr Chandran on 5 July 1994 at the L4/5 level and the other by Dr Newcombe on 17 January 1996 at the L5/S1 level. The claim is made that his situation, and his reaction to it, have led to loss of self-esteem and depression by mid-1997 and chronic pain syndrome by then or later.

59. The plaintiff was an unusual witness. I gained the impression that he was trying hard to give the best account he could for the purpose of the case. He is intelligent and articulate although sometimes his idiomatic and almost mischievous form of expression misses the mark. He has had limited formal education, but appears to have attended the same universities as Maxim Gorki. He was winning prizes in quiz contests over the radio both before and after his injury, but not any longer. He had the common experience of buying a computer for his children and learning to use it in order to encourage them to do so, and now he is finding that he has to seek help from the children. He has attended classes at a fairly elementary level at the CIT. He joined the Toastmaster's Club in Queanbeyan but has been discouraged by the attitude of the other members who do not seem to take it seriously. I think that on the whole the plaintiff was a truthful witness with a tendency to dramatise, and even to exaggerate a little.

60. The plaintiff's wife supported much of what he had to say on matters within their common knowledge. In some respects there was also an element of exaggeration in her evidence, or perhaps a lack of realism. For instance, both the plaintiff and his wife put themselves forward as the very model of a modern married couple before the injury, with the plaintiff performing one half of the household chores as well as providing full emotional and financial support for his wife and children, excelling in sport, attending to the garden and so on. I think that they tended to take a rosy view of the past.

61. There is no doubt, however, that the plaintiff has been severely frustrated by the lack of improvement in his condition. Dr Chandran's optimism, expressed in his report of 8 November 1994 that there was a good chance of returning to light work, proved unfounded. Dr Newcombe, on the contrary, thought that the outlook was poor following the second fusion on 17 January 1996, and when last seen by Dr Newcombe in November 1997, the plaintiff was complaining of pain radiating down both legs. That seems to be a reasonably objective sign of a deterioration in his physical condition. At that stage the plaintiff's walking capacity was limited to 25 minutes. Dr Newcombe thought that he was capable of working at some suitable task at home for 20 hours a week, but no such task was available.

62. Dr Newcombe's assessment of impairment of function was 15 percent of the lower back and 10 percent of each leg above the knee with 5 percent below the knee. That appears to be consistent with the assessment of 25 percent impairment of the whole body expressed by Dr Speldewinde, a rehabilitation physician, who treated the plaintiff in March and April 1998. Dr Speldewinde recommended that the plaintiff should continue with hydrotherapy and light exercise as required, and with assistance in personal and domestic self care activities and that he might try driving lessons. The recommendation was directed at boosting morale rather than improving the plaintiff's physical condition.

63. Dr Dunlop of the Canberra Rehabilitation Service who saw the plaintiff on a number of occasions from May 1996 to 15 March 1999 reported that there had been little change in the symptoms and level of activity over that time. He was not optimistic as to rehabilitation. Although Dr Dunlop thought that psychological counselling, the low level exercise program and periodic reviews for chronic pain should continue, they were "merely supportive" and unlikely to lead to a return to work of any kind because of the plaintiff's physical symptoms, depression and limited background. He thought that there were complicating contributing factors such as uncertainty about compensation, difficulties in the marriage and lack of opportunity for physical activity or diversion. I accept that assessment, and would simply add that applying the principle that the defendant took the plaintiff as it found him, the complicating factors are no comfort to the defendant in relation to the assessment of damages. I note further that Dr Dunlop stated that rehabilitation facilities in the Territory for chronic pain syndrome were not likely to achieve positive results. Nevertheless, in my view, these other factors are such that it is not to be assumed that they must last forever and, in my view, that with the end of litigation and the security of an award of damages the plaintiff is likely to take a more positive attitude to those matters and in turn to the question of his own physical limitations and symptoms.

64. The plaintiff has had a number of falls and similar incidents associated with his condition. He was also attacked and robbed in the street in Queanbeyan some short time ago. Although he did not say so in evidence he told Ms Crichton, the psychologist, that he feels vulnerable and doubtful about his ability to protect himself, and that is, in my view, consistent with the evidence.

65. Despite his disabilities the plaintiff manages to walk around Queanbeyan, to attend local football matches, act as coach or secretary of his son's school football team and to assist the Red Cross in providing company for older people. He is still contemplating learning to drive a car and has received some assistance or official approval for that purpose. He hopes, perhaps unrealistically, to improve his computer skills to the extent that he can operate a small business from home, helping people to prepare job resumes and the like. There is even some hope for the marriage. However, although he is not totally deprived of the ability to do things that for many people would be income generating, I think that there is very little prospect of his earning an income in the future. Broadly, he should be regarded as totally unable to earn income, but the calculations of the present value of future loss (as for other heads of damage) should be discounted for the possibility that he may yet be able to earn some small income from time to time. The calculation will also take into account the likelihood that even without the injury he would not have worked continuously to age 65. The defendant's warehouse closed down in late 1997 or early 1998 and there is no evidence that the defendant would have offered him work elsewhere. His prior criminal record would not have helped him in finding a job either, but I do not think that it would have been a substantial barrier. It was something that he had largely put behind him at the time of his injury. He told the defendant nothing about it.

66. It is impossible to be confident about the future of his depression and chronic pain syndrome. To some extent he should come to terms with it, and there appears to be no reason to make it likely that it will get worse. Attendance at a pain clinic in Sydney may help, and although there will be no allowance for that in the award for out-of-pocket expenses, it is something that he will be able to afford after he receives his damages. It is up to him. Developments in medication in the future may also help. The prescribed use of cannabis (which he uses anyway and has done so for years) is also a possibility but at what expense it is dangerous to guess. Again, that is not a matter that has been allowed for in the award for past or future out-of-pocket expenses.

67. In the light of the above, I assess damages as follows. For pain and suffering and loss of enjoyment of life I award $50,000, and apportion $30,000 to the past. Interest will be awarded on that component at 2 percent per annum giving a figure of $4,300.

68. The calculation of past and future loss of earning capacity presented on behalf of the plaintiff relies on a figure which assumes that the plaintiff would have progressed from his grade as a storeman with the defendant to a higher grade and an increased rate of pay by September 1993. The difference between the lower grade 3 and the higher grade 4 between then and June 1995 was very small, some $2.75 net per week or about $140 a year. At the date of trial the net figure for grade 4 was $455 per week. I was not able to find figures for grade 3. It was of course by no means assured that the plaintiff would have reached the higher rate or continued at it. The figures provided on behalf of the plaintiff therefore must be discounted slightly for the contingency that he would not have gone to the higher grade.

69. Both past and future loss must also be assessed having regard to the more substantial contingency that without the injury on 21 September 1993 the plaintiff might have suffered a similar debilitating injury to his degenerative spine in the meantime. There must be further discount for the other substantial contingency that, particularly in the light of the closure of the defendant's warehouse, he might not have been in regular employment. On the figures set out in a schedule, the plaintiff's past loss was calculated at $137,696 for the past and $340,321 for the future before allowing for contingencies. In submissions it was put that the plaintiff's uncontradicted evidence was that he worked overtime and was paid the equivalent of an extra day's wages (eight hours presumably) for every four weeks (160 hours). It was submitted that on that basis an overtime factor should be added to the figure calculated. The plaintiff's evidence would have the calculation increased by a factor of 8/160 or 5 percent for overtime, that is to $164,000 for the past and $420,000 for the future. The possibility that he would have worked regular overtime, however, whilst real, was more remote than the discounting factors already mentioned.

70. I would discount the latter two figures by 10 percent for the past and 25 percent for the future and thus allow $147,600 for the past and $325,000 for the future.

71. The plaintiff was paid workers' compensation and is to be awarded interest on the shortfall between the award of $147,600 and what he was paid, namely $125,371 that is to say $22,229. Interest at 5% percent results in an award of $3,186.

72. Past out-of-pocket expenses were agreed and will be awarded at $88,109.

73. There is a dispute about future out-of-pocket expenses which necessitates some attention to detail. I will state my conclusions briefly. The future cost of medication starts with the present expenditure for Endep (2 per day) at a weekly cost of $2.98, Rivotrol (8 per day) weekly $7.11, Kaparol (2 per day) weekly $14.72, total weekly cost about $25. Using the agreed multiplier of 1120 based on the plaintiff's life expectancy, the present capital value of the loss is about $28,000, a considerable sum. I am not satisfied that it has been shown that the present expenditure will continue beyond, say, two years ($3,000). After that I am prepared to award a lump sum against the possibility that the need for medication will continue which I assess at $5,000. That means a total of $8,000 for future medication.

74. A claim for the cost of visits to a general practitioner assume monthly visits lifelong. I think that with an appropriate discount for contingencies that is appropriate. I make an award based on $8.77 per week, apply the multiplier and reduce the result ($9,822) by 25 percent giving a figure of $7,367.

75. The cost of future psychology services are likewise calculated over the whole of the plaintiff's life expectancy. However, it has not been shown that such services will be reasonably necessary for that period of time or indeed that they have been or are likely to be effective at any stage. Nevertheless, I think it reasonable that the plaintiff recoup half the present cost of about $240 a month for two years ($2,880) and a further lump sum of $2,000 thereafter, giving a total of $4,880. A claim is made for monthly consultation with a specialist doctor, presumably a neurologist or neurosurgeon like Dr Chandran or Dr Newcombe, or a rehabilitation specialist like Dr Corry. But the plaintiff has not consulted such specialists in years and it may be expected that should he do so in the future it will be as part of some public health service such as that provided at the Canberra Hospital. An annual consultation with a private specialist would, however, not be unreasonable and I make an appropriate award ($130 x 1121 less 25 percent) of $10,930.

76. A claim was made for cost of "driver rehabilitation". In fact the plaintiff has never had a driver's licence and it is doubtful whether he would ever have obtained one. He has, however, taken steps towards obtaining driving qualifications and it would be very beneficial if he did obtain them. I estimate the extra cost to him of obtaining a licence over and above what it would have cost otherwise at $500. If he ever gets a licence it may well reduce and then avoid the future cost of transport to and from hydrotherapy sessions which is claimed at $7,616. I do not see hydrotherapy as being likely for more than two years. I allow $2,000 for this part of the claim.

77. The plaintiff made a claim for ongoing cost of replacing a back brace. He has had the same brace since his injury and there is no evidence about how often such braces should be replaced. I allow $1,000

78. There is a claim for various items of special domestic furniture and equipment which would make the plaintiff's life more comfortable. The claim is reasonable, but the defendant is entitled to a discount to represent the likely cost of the ordinary equipment and furniture which would have been purchased by the plaintiff in any event. I award $5,000. The value of the loss of superannuation contributions by the plaintiff's employer is claimed at $9,590 for the past and $44,380 for the future. The defendant does not dispute the appropriateness of those figures based on the figures claimed for loss of earning capacity (without overtime) ($137,696 and $340,321). Applying the same proportions roughly to what I have awarded for loss of earning capacity past and future (with overtime) ($147,600 and $325,000), I award $10,000 for past loss of superannuation contributions and $42,000 for future loss of superannuation contributions.

79. The last item is the substantial claim under the principle in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161. The plaintiff's wife estimates that she has spent about two hours a day attending to the needs of the plaintiff resulting from his injury, with up to six hours a day in the periods following his discharge from hospital for the operations. $83,730 is claimed for the past and $234,990 for the future. The defendant submits that a modest sum only should be awarded having regard to the likelihood that much of the claim is exaggerated and that the alleged delivery of services and care represents not much more than a re-arrangement of the conduct of ordinary household relationships. The evidence of the plaintiff was that he and his wife shared the household chores, but that since his injury he cannot do 90 percent of them. He said that he cannot reach down to dry his feet and that his wife has to do that as well as help him with his socks. When they separated recently he kept going back during the day so that his wife could attend to his daily needs.

80. The evidence of the plaintiff's wife was that she helps him in and out of the shower or bath, helps him dress, helps him in and out of bed, helps him put on his socks. He can no longer cook or help with the washing. She estimated help of this nature of approximately an hour and a half each day.

81. In the light of the evidence I would reduce the claim for the past to $60,000. For the future, I am not convinced that such close attention may reasonably be regarded as a consequence of the injury for more than another two years and that other factors such as age and the ordinary increasing attention that one spouse may be expected to give to the other as the children grow up, will play an increasing part. For the future, I would award $15,000 for the next two years and a lump sum of $20,000 for the future after that, making a total of $35,000.

82. The Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 component to 1 August 2000 is agreed at $11,143. I add a further $1,000 to bring it up to date.

83. Interest is awarded on the past award under the principle of Griffiths v Kerkemeyer. The rate is agreed at 5 percent and the result is $21,500. In summary, and provisionally, the award of damages is as follows:

Pain and suffering and loss of enjoyment of life	$ 50,000.00
Interest on past component	$ 4,300.00
Past loss of earning capacity	$147,600.00
Future loss of earning capacity	$325,000.00
Interest on shortfall of workers' compensation	$ 3,186.00
Past out-of-pocket expenses	$ 88,109.00
Future out-of-pocket expenses	$ 39,677.00
Past loss of superannuation contributions	$ 10,000.00
Future loss of superannuation contributions	$ 42,000.00
Past Griffiths v Kerkemeyer Interest on past component of Griffiths v Kerkemeyer Future Griffiths v Kerkemeyer Fox v Wood	$ 60,000.00 $ 21,500.00 $ 35,000.00 $ 12,143.00
Total:	$838,515.00

84. Globally that appears to me to be a generous award to the plaintiff in the circumstances, but that is no justification in law for reducing it, for reasons similar to those referred to by Kirby J in Grincelis v House [2000] HCA 42; (2000) 173 ALR 564. No regard has been had to the goods and services tax.

85. The plaintiff is at liberty to enter judgment against the defendant for $838,515.00. Liberty to apply within 14 days in respect of any arithmetical error. Unless the parties wish to be heard, I propose to order that the defendant pay the plaintiff's costs.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 24 November 2000

Counsel for the plaintiff: Mr B Salmon QC with Mr P Walker

Solicitor for the plaintiff: Wood Fussell

Counsel for the respondent: Mr G Stretton

Solicitor for the respondent: Blake Dawson & Waldron

Dates of hearing: 2 and 3 August 2000

Date of judgment: 24 November 2000