Sadler v Leda Commercial Properties Pty Limited [2004] ACTSC 15 (2 April 2004)

Last Updated: 23 April 2004

SADLER v LEDA COMMERCIAL PROPERTIES PTY LIMITED

[2004] ACTSC 15 (2 April 2004)

NEGLIGENCE - personal injury - occupier's liability - shopping centre loading dock - duty to truck driver - duty to inspect surface for ice - efficacy of system of inspection

DAMAGES - personal injury - shoulder injury - torn tendon - cervical disk injury - no issue of principle

Evidence Act 1995, s 144

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

Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512

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

No SC 494 of 2002

Coram: Master Harper

Supreme Court of the ACT

Date: 2 April 2004

IN THE SUPREME COURT OF THE )

) No SC 494 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SADLER

Plaintiff

AND: LEDA COMMERCIAL PROPERTIES PTY LIMITED

Defendant

ORDER

Coram: Master Harper

Date: 2 April 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $286,442.91.

1. This is an action for damages for personal injury. The defendant is the owner and occupier of the Tuggeranong Hyperdome, a large shopping mall in the south of Canberra. On 28 June 2001, the plaintiff, a truck driver, drove into an unloading area forming part of the defendant's premises to deliver whitegoods. His case is that after alighting from his truck, he lost his footing on a patch of black ice and fell heavily.

2. The plaintiff was born on 13 October 1960. He was 40 at the date of the accident and is now 43. He lives at Wingello in the southern highlands of New South Wales. At the time of the fall, he was employed by SC Rainford Transport of Bargo, New South Wales. In accordance with his usual routine he had picked up a load of whitegoods at Arndell Park in the western suburbs of Sydney on the previous day, and driven home to Wingello where he had parked his vehicle overnight. He got up at about 4.15 am. It was very cold. He had to wash ice off the windscreen of the truck with a bucket of water. He made a delivery at Goulburn, where he heard on radio that the temperature was minus 2.0°C. Between Goulburn and Canberra, he observed frost in the paddocks. He made a delivery at Fyshwick and another at Hume before driving to the Hyperdome, where he arrived at about 8.45 am. By then it had been daylight for some time. He drove his truck down a concrete ramp to the forecourt of the loading dock, a large rectangular area with a raised platform extending for its full length opposite the ramp. There was one vehicle already on the forecourt, a van. It was necessary for the plaintiff to turn his vehicle so as to reverse into the platform. He stopped about two metres out from the platform, to give him room to open the hinged rear doors of the truck and secure them to the sides.

3. He opened the driver's door to get out. He says that he noticed water on the driver's side of the truck, probably about two to three inches deep and extending from the driver's door back to the loading dock behind the truck. The pool of water was reasonably wide. The plaintiff got out of the truck to avoid the water and started to walk in front of his truck to go around the passenger side to open the rear doors. As he was walking to the front of his truck he noticed another truck on his right. He heard a beeping signal warning that the other truck was reversing, and looked over his right shoulder to see where it was. As he did so, he slipped awkwardly and fell to his left, with his left arm stretched out. His legs went from under him and he fell onto his left shoulder.

4. The other driver saw the fall, and pulled up to ask the plaintiff if he was all right. The plaintiff was able to get to his feet. His left shoulder was painful. He walked over to the other truck and had a conversation with the driver. He then walked to the steps leading to the platform of the dock. He sat on the steps for about five minutes while the pain in his shoulder subsided. He then walked to the back of his truck, opened the doors, reversed the truck to the platform and, using a trolley, unloaded two items of whitegoods. He said that the unloading task was not easy. Because of the pain in his left shoulder, he tried to use his right arm. He telephoned his employer and told him about the injury. Mr Rainford instructed him to do his best to continue with his remaining deliveries. He delivered a dryer to a private residence, made another delivery at Mitchell, and then drove back to Goulburn. On the way, he rang again and said that his shoulder was too painful to continue. They arranged to meet in Goulburn. Mr Rainford transferred the balance of the load onto his own truck, and the plaintiff went home.

5. He was asked in cross-examination whether he succeeded in avoiding the pool of water when he got out of his truck. His answer was that he tried to avoid the water, but still got his feet wet. As he went around the front of the truck, the soles of his boots were wet from the puddle on the driver's side. It was put to him that he fell because he stopped paying attention to where he was putting his feet and instead looked around at the reversing vehicle. He denied this, but conceded that when he heard the reversing signal, he turned to his right to see where the truck was, and to see if it was getting too close to him for his own safety. As he turned he slipped. He said "I pivoted on my feet, then I looked over my shoulder. When I heard the beepers, I accidentally kind of stopped and turned quickly to see where the truck was, and I slipped over." He conceded that he had been aware of the truck's presence before getting out of his truck, and that he was aware that the driver might attempt a manoeuvre of the kind he did.

6. The plaintiff was asked whether he knew exactly what it was that caused him to fall. His answer was "Black ice caused me to fall over". It was put to him that he did not see any black ice, and he initially agreed that he did not see it. He said that black ice is very hard to see. He was then asked whether he assumed it was there, and said that he had seen it after he slipped over. He said, "I didn't know what was - what I slipped on until I fell on the ground trying to get up and I knew it was ice". It was subsequently put to him that he never actually saw the ice, and he agreed that he did not.

7. The driver of the reversing truck, Mr Jurd, gave evidence. In June 2001 he was a truck driver with Cold Seas Pty Limited of Fyshwick. He had ceased working for the company about a month after the accident. He recalled the morning of the plaintiff's fall. He said that the surface of the loading dock was wet, and that it was a cold morning. He said that after he had parked his truck, as he was getting out the invoices for his deliveries at the Hyperdome, he noticed the driver of the adjoining truck dismounting. He saw him put his leg down onto the ground and then slip over, pretty much as he was climbing out of his truck. He did not see exactly what happened, but as the plaintiff stepped out his leg touched the ground and then he basically toppled over, landing on his side. Mr Jurd got out and gave the plaintiff some assistance, and they exchanged contact details. He noticed that when the plaintiff got up, he was slightly damp or wet on one side. He said that the forecourt area "pretty much stays full of water when they hose it. There's no drain off or anything, basically . . .". He had noticed the forecourt similarly wet on previous occasions, and he had previously seen someone hosing the dock down. He had not noticed any ice on the forecourt on the day in question, but he did observe ice on the platform of the loading dock and on the steps to the platform. He said that he had slipped on ice on the platform of the loading dock on previous occasions, though not on the forecourt surface.

8. Evidence on behalf of the defendant was given by Mr Beattie, operations manager of the Hyperdome and an employee of the defendant for sixteen years. Mr Beattie is responsible for the day-to-day running of the centre, including maintenance, cleaning and security. His company engages numerous contractors. He negotiates the contracts and supervises their implementation. Cleaning contractors start at 4.00 am and work through to 8.00 am to ensure that the shopping centre is clean by opening time. There are cleaners in the shopping area during the day, particularly in the food court area. Mr Beattie normally arrives at work soon after 8.00 am, and patrols the centre during the morning to make sure that the lifts, escalators and air-conditioning are working properly. He is able to monitor much of this through a computerised building management system. Mr Beattie explained that the loading dock in question, known as the Grace Brothers loading dock (or apparently by some as the Great Southern loading dock) is one of about five or six loading docks within the Hyperdome. It is on an upper level and there are offices below it. Mr Beattie patrols the dock at least once or twice a day, as part of a patrol of the entire Hyperdome. He does not always follow the same route, but would generally inspect the dock between 8.15 and 10.00 am each day. It is his practice to conduct a visual inspection, checking that no rubbish has been left by the cleaners and that there are no other obvious hazards.

9. The forecourt area of the loading dock is a large level space with a concrete surface, with access down a ramp. At the foot of the ramp there is a drain running its full width, the purpose of which appears to be to drain water from the ramp rather than from the forecourt. At right angles to this drain and to the edge of the platform of the loading dock, an expansion joint with a metal cover runs the full width of the dock. Mr Beattie's evidence was that the cover was put in place ten or twelve years ago because the rubber expansion joint leaked in wet weather. Small surface drains can be seen a little to the side of the metal cover. Their purpose was explained by Mr Beattie as to keep water away from the expansion joint, not to drain the forecourt generally. The cover and drains have worked well, to the extent that there has not been a leak into the office area since their installation.

10. Mr Beattie recalled only one complaint about ponding of water in the forecourt. Australia Post, a tenant of the shopping centre, complained some years ago of ponding in the south-east corner, adjacent to the steps leading to the dock platform. This was corrected by raising the surface in that corner, using a topping of hotmix. Although the hotmix appears to provide a rougher surface than the concrete, it is not suggested that hotmix was used because of any concerns about slipping.

11. Mr Beattie explained that a carpark cleaner who starts at 2.00 am, earlier than the other cleaners, uses a mechanical ride-on sweeper to clean the carparks and docks, including the forecourt in question. The machine has a 12 mm brush at the front and a vacuum action. No water is used as part of this process. The platform of the loading dock is cleaned daily between 4.00 and 8.00 am, using a walk-behind scrubbing machine which also incorporates a vacuum device. This is a wet brush system, but uses little water and leaves the surface damp rather than wet.

12. The platform of the loading dock, and an area a few metres out from it, are under cover, but most of the forecourt is open to the elements. It can be seen from photographs in evidence that when a large truck is positioned for unloading, about one third to half its trailer would be under cover, with the cabin and the balance of the trailer in the open, so that a truck driver would be exposed when dismounting from the cabin but would be able to unload under cover. Mr Beattie was asked whether he had ever known of ponding of water over the metal strip covering the expansion joint. He said that he had not, but that water would lie over it in the rain, as it would on any other surface. Depending on weather conditions, water could remain on the forecourt surface for a day or two after rain. He had never been made aware of ice appearing on the forecourt surface and he was unaware of any complaint of this.

13. In cross-examination, Mr Beattie conceded that the focus of cleaning and inspection for hazards is on the safety of shoppers rather than that of delivery drivers. He agreed that the loading dock is not patrolled to anything like the same extent as the areas of the shopping mall which are open to the public. He remarked that shop staff within the mall go to the dock to smoke, smoking being prohibited in the public areas. For this reason the cleaners regularly patrol the corner of the dock where the smokers congregate.

14. Mr Beattie agreed that, in the course of his daily inspections of the loading dock, he did not step down to the forecourt to check the surface. He agreed that the forecourt gets wet when it rains and can get wet for other reasons, such as spillages or moisture from refrigerated trucks in hot weather. He had never seen a hose used for cleaning the forecourt but could not say that this never happened. It was suggested to him that someone might have used a hose to try to melt ice on the forecourt surface. He said that this method had been attempted unsuccessfully in one of the exposed carparks some years earlier: sometimes the water in the fire hose can be frozen, and otherwise the water will freeze on contact with the ice. The cleaners in recent years have been provided with a chemical to pour onto black ice. He agreed that it was possible that a cleaner might have used a hose to try to remove ice in the dock.

15. Mr Beattie said that from his observation, there was no tendency to ponding or puddles on the forecourt of the loading dock after rain. He conceded that the security staff who check the dock before the mall opens each morning do not walk down to the forecourt to check it for ice, but merely check it visually from the platform.

16. On a cyclone fence adjacent to the ramp leading to the forecourt there is a yellow sign with the words "slippery when wet" and a silhouette image of a person slipping and falling. Mr Beattie says that the sign was installed in about 1999 and was there at the time of the accident. I accept this. The plaintiff says that he did not see it. It appears to me that the purpose of the sign is to warn pedestrians to be careful of the surface of the ramp. The sign is at right angles to the line of travel of a vehicle entering the forecourt, and one would not expect a driver to see it or absorb its import. I do not regard the sign as of any relevance to the issues to be determined in this action.

17. A report was tendered in the plaintiff's case by Dr J R Cooke, who has qualifications in architecture and building science (and also a law degree). Dr Cooke was for some twenty years a lecturer and senior lecturer in the Faculty of the Built Environment at the University of New South Wales, and has expertise, relevantly for this action, in the evaluation of slip resistance of pedestrian surfaces. He inspected the forecourt on 7 May 2002, accompanied by the plaintiff and his solicitor. Dr Cooke assumed that it had been raining the night before but otherwise his assumptions accorded with the plaintiff's evidence.

18. Dr Cooke expressed the opinion that after rainfall on an early morning in June there would be a high likelihood of ice remaining on the concrete surface of the forecourt. I have some doubt whether Dr Cooke's qualifications or experience provide an adequate basis for the expression of an expert opinion in these terms, but this evidence was not challenged and is consistent with common experience.

19. Dr Cooke tested the concrete surface of the forecourt, and came to the view that when wet with clean water, it was slip resistant within the applicable Australian Standard. He said that the plaintiff's description of a large pool of water two to three inches deep beside his truck and a one metre-square patch of ice covered with water indicated inadequate drainage in a south-facing shaded area, highly conducive to the formation of ice in winter. Adequate drainage would require that the surface be laid so as to fall to drainage outlets of adequate size for the area to be drained. Dr Cooke did not inspect the site after rain and could not identify from his own observation any areas where water would be likely to pond on the surface.

20. Dr Cooke explained that a relatively smooth surface which is acceptably slip resistant becomes, when coated with ice, an extremely high slipping hazard, because it prevents contact between footwear and the slip resistant surface underneath the ice coating. He made reference to a table which listed coarse bitumen as the most slip resistant surface, and wet ice as the most hazardous, being extremely slippery and unquestionably unsafe, with the risk of a slip being highly probable without extreme caution. The risk of slipping would have been significantly less, in Dr Cooke's opinion, on the portion of the forecourt coated with bitumen. Bitumen provides a rough surface on which ice would tend not to form an unbroken smooth coating as it would on the relatively smooth concrete elsewhere on the forecourt. If the entire forecourt had been surfaced with asphalt, the risk of the type of slipping accident described by the plaintiff would have been significantly reduced. The cost of coating the forecourt with a thin layer of coarse asphalt would not exceed $5 per square metre.

21. There are some inconsistencies in the evidence as to what happened on the day of the plaintiff's fall. I accept the plaintiff as an honest witness who has done his best to recall and describe the circumstances surrounding his fall. A period of some two-and-a-half years had elapsed by the time he gave his evidence, and it cannot be expected that his recall will be accurate in every detail.

22. I accept that Mr Jurd was also doing his best to remember what happened on the day, but he has had much less reason to remember accurately the events of the morning. Where his account is at variance with that of the plaintiff, I would place more reliance on the plaintiff's evidence.

23. I generally accept the evidence of Mr Beattie, although, hardly surprisingly, he has no specific recollection of the day of the fall, and has been able to give evidence only of his general practice and that of other staff and contractors.

24. Both the plaintiff and Mr Jurd have a recollection of some pooling of water on the surface of the forecourt on the morning in question.

25. Meteorological records taken at the Tuggeranong weather station, about two kilometres from the Hyperdome, establish that the coldest temperature during the 24 hours prior to the plaintiff's fall was -6.1°C at 7.00 am. By 8.30 am the temperature had risen to -2.3°C and by 9.00 am to -0.7°C. The minimum temperature the previous night had been -3.7°C and the maximum during the previous day 13.6°C. There had been moderately heavy rain on 8 June and again on 13 June but with the exception of a recording of 1 mm on 21 June, there was no rain between 16 June and the fall on 28 June. I regard it as unlikely that any water on the surface of the forecourt was rainfall-related.

26. Nevertheless, I accept that there was water on the surface of the forecourt, although I am in some doubt about the quantity of water. The period in late June was not one of ideal drying conditions and I accept that the water may have been there for some days. Equally, it is possible that it had been there for a relatively short time. Accepting that there was water present, the minimum temperatures were such that the formation of some ice was likely. It is a matter of general knowledge that water in liquid form on a concrete base will form a coating of ice on its surface; it is also possible that in sufficiently cold temperatures, a shallow pool of water may turn entirely to ice. With increasing air temperature it is possible that the surface of the ice will melt first, leaving a base of thin ice covered by water on top. These are phenomena of common knowledge in the Canberra region, of which evidence is not required: s 144 Evidence Act 1995.

27. There is no question that the plaintiff, who was wearing appropriate workboots, slipped on the surface of the forecourt and fell. I am left in doubt as to whether he saw any ice on the surface; or whether he inferred this from the temperature, the presence of the water and the fact that the surface was slippery. There is no evidence of any other slippery substance on the surface, and I think it more likely than not that there was ice present, not readily perceptible, and that the plaintiff lost his footing on the ice.

28. It is common knowledge in Canberra that on very cold winter mornings water in areas open to the elements can freeze over. There is no evidence as to how the water got there, but there is evidence that from time to time the surface of the forecourt had had water on it in the past, whether because of rain, hosing, condensation, spillage or some other cause. It was in my view reasonably foreseeable that there might be water on the surface of the forecourt and that it might freeze on winter mornings, creating a hazard for truck drivers. The defendant was well aware that it was necessary for truck drivers to dismount from their cabins and walk on the surface of the forecourt, whether to open the doors of their trucks or to make their way to the steps leading to the platform of the dock.

29. Mr Beattie gave evidence of a system of inspection of the loading dock area by cleaning contractors in the hours before 8.00 am, and of his own patrolling of the dock area at least twice a day. He conceded that the inspection of the surface of the forecourt was a visual one only, conducted from the platform above. He also acknowledged that he might not have conducted his first inspection of the loading dock area on any given day until as late as 10.00 am. Such a system was not, it seems to me, likely to detect the presence of ice on the surface of the forecourt, and it is not necessarily an answer that the formation of ice in the area was not particularly likely. The test is expressed in the familiar words of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47:

A risk of injury which is quite unlikely to occur . . . may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being `foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

I am satisfied that the risk of injury to the plaintiff was foreseeable by the defendant.

30. That is not the end of the matter. As Mason J went on to say;

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of 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 the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

Here, it would not have been difficult for the defendant to have had in place a system of inspection aimed at detecting the presence of ice on the forecourt surface. It is clear from Mr Beattie's evidence that the defendant inspected its carpark surfaces for this very purpose, and that cleaners had been issued with containers of a liquid chemical which melted the ice. It appears that this technique worked satisfactorily in dealing with the slipping problems on icy mornings in the customer carparks. Such a system would have amounted to a reasonable and appropriate response to the risk. If it had been implemented, the plaintiff would not have slipped and fallen.

31. Since the decision of the High Court in Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, claims against occupiers have been governed by the ordinary rules of negligence rather than the old rules which depended upon the category of entrant into which the plaintiff fell. In that case, it was held to be enough that the plaintiff was a lawful entrant on the defendant's premises to establish a relationship between them which gave rise to a duty to take reasonable care to avoid a foreseeable risk of injury. The plaintiff in that case was a customer in the defendant's supermarket. The present plaintiff was one of a class who regularly entered the defendant's premises for purposes related to the defendant's business. The relationship between plaintiff and defendant was undoubtedly one giving rise to a duty of care.

32. Counsel for the defendant sought to draw a parallel to the facts in Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512. The plaintiff in that case was a pedestrian who failed to notice in broad daylight a difference in the level between the footpath she had been walking along and its earthen verge. Gaudron, McHugh and Gummow JJ pointed out at para 163 that:

Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger . . . or the surrounding area . . . In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety . . . Each case will, of course, turn on its own facts.

The plaintiff in the present action was not a pedestrian walking along a footpath in broad daylight. The ice was not apparent to him until he placed his foot on it.

33. Counsel for the defendant submits that the plaintiff should be found to have contributed to his own misfortune, by failing to take reasonable care for his own safety. The distinction between contributory negligence and mere inattention or inadvertence was explained by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315, where their Honours referred to a number of factors relevant to the facts of that case, an action against an employer, and concluded that the plaintiff's conduct fell short of contributory negligence. Here, the plaintiff was concerned that there was another truck reversing in his general direction. It was inevitable having regard to the design of the loading dock that drivers of trucks would regularly reverse while turning to the edge of the platform. The plaintiff was not unreasonably concerned that he might be struck by the reversing vehicle, and he understandably gave priority to ensuring that he was not in its path. It does not seem to me that there was anything about the plaintiff's behaviour which would warrant a finding of contributory negligence against him.

34. The plaintiff grew up in the Albury-Wodonga area, and left school half-way through Year Eleven. He has worked as a truck driver since 1982, working for a number of trucking companies. He had been employed by Mr Rainford for about three months at the time of his fall.

35. Immediately after the accident, the plaintiff saw his general practitioner, Dr Knowles, at Bundanoon. He was prescribed painkillers and anti-inflammatories, and referred for x-ray and ultrasound investigation. He was certified unfit for work until 4 July, and he went back to work on light duties for a time. In November 2001, Dr Knowles referred him to Dr A W Leicester, an orthopaedic surgeon practising in Goulburn. The initial x-rays and ultrasound reports were normal, but Dr Leicester suspected some internal damage to the rotator cuff. The plaintiff was referred to Dr Grattan-Smith, a radiologist with particular expertise in shoulder injuries, who on 19 November 2001 detected a full thickness tear of the subscapularis tendon.

36. Dr Leicester had some concern as to whether surgery would be successful, five months having passed since the injury, but the plaintiff decided to proceed with the operation. He has made a partial recovery, but he will always have some weakness and restriction of movement in the left arm. His condition is unlikely to improve further. His pain has been significantly relieved but he can expect to have to put up with a level of discomfort permanently. In July 2003, Dr Leicester assessed the plaintiff as having suffered about 15% permanent impairment of the left shoulder. He is no longer capable of heavy lifting or overhead work, which restricts him from many tasks associated with truck driving. He is not likely to develop arthritis in the shoulder. He has required extensive physiotherapy and osteopathic treatment, which have been beneficial.

37. An MRI scan of the cervical spine in December 2002 revealed a small disc bulge with a tear of the annulus at the C6-7 level. Dr Roderick McKeown, an experienced rehabilitation consultant who has examined the plaintiff on a number of occasions at the request of his solicitors for the purposes of the case, has expressed the view that the disc condition probably dates from the time of the fall. Dr Leicester takes a different view, that the disc bulge is an incidental finding unrelated to the injury. In the absence of any other explanation for the disc bulge and annular tear, and taking account of the fact that this condition appears to have become symptomatic some time after the fall, it seems to me, notwithstanding Dr Leicester's opinion, that it is more probable than not that the condition was caused, or at the very least, aggravated by the fall to an extent where it commenced to produce the symptoms of which the plaintiff complains. I take account of the fact that the defendant did not require Dr McKeown for cross-examination, and that no medical evidence was called in the defendant's case.

38. By August 2003 the plaintiff was complaining of constant neck pain, radiating into the left arm and accompanied by tingling in the arm and fingers. The neck pain is worsened by truck driving and other physical work. It is accompanied by headaches from the back of the head extending to the forehead. The plaintiff thinks that the neck pain is getting worse, and Dr McKeown agrees that the neck symptoms are likely to increase with the passing of the years.

39. The plaintiff continues to have pain in the left shoulder, partially relieved by anti-inflammatories and analgesics. Dr McKeown has assessed the degree of permanent impairment as 18% in relation to the left shoulder and 14% of the whole person, by reference to American Medical Association guidelines. Dr McKeown does not think that the plaintiff will be able to continue as a driver of large trucks. He has changed jobs since the accident, and is now driving for a company which does not expect him to change wheels, load or unload, or work above head height as he was required to do in his old job. He complains of changing gears with his left hand. He is no longer able to carry out heavier gardening work, and cannot do any heavy lifting or work above shoulder level. He has been unable to get back to golf, which he enjoyed before his injury, and he avoids riding his motorcycle because the vibration affects his shoulder.

40. Dr McKeown believes that it is unlikely that the plaintiff will be able to drive heavy trucks after about the age of 50, although he acknowledges that it is impossible to be precise in a prediction of this kind. By that age, the plaintiff should, in Dr McKeown's opinion, find himself a lighter job, perhaps driving a light vehicle. He has suggested that the plaintiff seek to qualify himself through a TAFE college in an area of work such as administration, where his physical restrictions would be less of an impediment. He will continue to need medication, and physiotherapy in the future is likely to be of help to him.

41. It is agreed that the plaintiff's hospital, medical, ambulance and rehabilitation expenses have been paid by his employer's workers' compensation insurer in an amount of $13,323.55 up to 16 October 2003, and that the plaintiff received periodical payments of workers' compensation to that date in an amount of $29,805.66. It appears that these payments equated to the plaintiff's actual gross loss. He is entitled to his net loss, but also to the tax deducted and paid by the insurer to the Tax Office, which he will be obliged to refund to the insurer. Thus the measure of his past loss earnings, including the Fox v Wood component, equates to the gross amount paid by the insurer, which I allow. He is entitled to an additional amount of $2,813.70 being the amount his employer would have contributed to superannuation on his behalf during the twenty-seven weeks he was off work. I allow $500.00 including interest to cover treatment expenses from 16 October 2003 to the date of judgment.

42. A claim is made for future treatment expenses of the order of $2,000.00 per year. I see this as somewhat high, but would accept a continuing figure of the order of $20 per week, on average, for the rest of the plaintiff's life. According to figures published by the Australian Bureau of Statistics in September 2003 (Population Projections, Australia, 2002-2101) a male of the plaintiff's age has a life expectancy of about 41 years. The present value of a continuing loss of $20 per week for forty-one years, discounted at 3%, is $24,800.00 which I reduce by the conventional 15% to take account of negative vicissitudes to $21,000.00.

43. The assessment of damages for loss of earning capacity for the future presents difficulties. One cannot be certain as to when the plaintiff would be likely to have retired from the workforce in the absence of injury, and there is considerable uncertainty as to his working future now. He is presently capable of earning about $850.00 net per week. He is described by the doctors as strongly motivated to work, but I must take account of the difficulty he is likely to encounter in obtaining other work if he has to give up driving trucks in his fifties. If it had not been for the injury I think he would probably have worked to age sixty or sixty-five. If I adopt a course a little less pessimistic than Dr McKeown's view, and assume that the plaintiff will be able to work to age 55 but will then have to retire, I arrive at a discounted range reflecting the present value of such a loss within a range of $120,000.00 to $200,000.00, after the conventional 15% reduction. These figures assume that after retirement the plaintiff will not engage in income-earning activity at all, which, having regard to his motivation, I regard as unlikely. A mathematical approach in these circumstances is inappropriate, and I recognise that the figures I have set out can be no more than a guide. It seems to me that a proper figure to compensate the plaintiff for the loss of earning capacity he has suffered as a result of the injury, to the extent that the impaired capacity is likely to be reflected in actual loss of earnings, is $140,000.00.

44. For future loss of superannuation benefits I allow $12,000.00.

45. By way of general damages for pain and suffering and loss of enjoyment of life, I allow $60,000.00, which I apportion equally between the past and the future. I allow $2,000.00 by way of interest on the past component.

46. The plaintiff required assistance at home in the early stages after the injury, and also whilst recovering from surgery. There are a number of responsibilities in the garden and around the house no longer within his capacity. Some of the assistance he has needed has been and will in the future be provided by his family without charge. From time to time it may be necessary for the family to engage paid assistance. In respect of what has become known as the Griffiths v Kerkemeyer component of the claim, I allow $2,000.00 for the past, including interest, and $3,000.00 for the future.

47. The individual components of the award are as follows:

General damages $60,000.00

Interest $2,000.00

Past treatment expenses $13,823.55

Past loss of earnings $29,805.66

Past loss of superannuation benefits $2,813.70

Future treatment expenses $21,000.00

Loss of earning capacity $140,000.00

Loss of future superannuation benefits $12,000.00

Griffiths v Kerkemeyer - past $2,000.00

Griffiths v Kerkemeyer - future $3,000.00

$286,442.91

48. That total appears to me reasonably proportionate to the losses suffered by the plaintiff as a result of his injury. There will be judgment for the plaintiff in the sum of $286,442.91. In the normal course, costs would follow the event, but I shall provide the parties with an opportunity to be heard in case there are factors of which I am unaware which may need to be taken into account.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 2 April 2004

Counsel for the plaintiff Mr N J Adams

Solicitor for the plaintiff Galland Elder Lulham (Goulburn)

Higgins Solicitors (Canberra agents)

Counsel for the defendant Mr G J Lunney

Solicitor for the defendant PricewaterhouseCoopers Legal

Date of hearing 20, 21, 22 October 2003

Date of decision 2 April 2004