Moore v Woodforth [2003] NSWCA 9 (6 February 2003)

Last Updated: 13 February 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: MOORE v WOODFORTH [2003] NSWCA 9

FILE NUMBER(S):

40111/2002

HEARING DATE(S): 2, 3, 4 December 2002

JUDGMENT DATE: 06/02/2003

PARTIES:

RODERICK MOORE v REECE WOODFORTH

JUDGMENT OF: Mason P Meagher JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3137/2000

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

COUNSEL:

Appellant: F McAlary QC/ S McCarthy

Respondent: J Sharpe

SOLICITORS:

Appellant: Benjamin & Khoury

Respondent: Ebsworth & Ebsworth

CATCHWORDS:

Negligence - snorkeller hit by motorboat - contributory negligence - volenti non fit injuria - lost earning capacity (ND)

LEGISLATION CITED:

DECISION:

See par 113

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40111/02

MASON P

MEAGHER JA

HEYDON JA

Thursday 6 February 2003

Robert Allan MOORE v Reece Gordon WOODFORTH

JUDGMENT

1 MASON P: On 3 January 1998 the appellant was injured when struck by the propeller of a motor boat owned and driven by the respondent. The appellant was snorkelling in the Swansea Channel at the entrance to Lake Macquarie.

2 The appellant was partially successful in the District Court. The respondent was found to have been negligent. A defence of volenti non fit injuria was rejected, but damages were reduced by 40% for contributory negligence. General damages were assessed at $150,000 and various items of special damages were agreed or assessed, making a total verdict of $216,570.

3 In his cross appeal the respondent challenges (1) the finding of negligence and (2) the rejection of the defence of volenti non fit injuria.

4 In his appeal the appellant challenges (1) the finding of contributory negligence and some of the specific findings upon which it was based, (2) the assessment of general damages and (3) the assessment of damages for economic loss.

5 The following extract from the reasons of Sorby DCJ sets the scene for the contested issues in the appeal:

The plaintiff was dressed in a half-wetsuit, goggles and a snorkel. He had a weight belt strapped to his body and was wearing a pair of fins. Fins, snorkel and goggles of a similar type were in evidence. Attached to the plaintiff's weight belt was a 10 metre length of orange nylon rope. At the end of the rope was a white plastic buoy about 8"-10" in diameter. Attached to the buoy in addition to the orange cord was a piece of "S" shaped wire on which speared fish were attached if caught. The plaintiff carried a hand spear with a rubber sling used to propel the spear towards the fish.

The entrance to the Swansea Channel, as depicted on the map (PX1) is borded at its entrance by two breakwalls - one at Blacksmith's Point (north) and one at Reid Mistakes Head (south), the latter known as Lucy's Breakwall. Tucked around the corner and directly south of Lucy's Breakwall is a small beach unnamed on the map, but known colloquially as "Stinky's Beach". It was at this beach that the plaintiff first entered the sea for the purpose of looking for fish to spear and "snorkelling, swimming and having a good time" (T30). He outlined his approximate course off the beach on the map that was tendered.

The plaintiff was accompanied by a longtime friend Mr J "Blackie" Blackman. Neither the plaintiff nor Mr Blackman caught any fish off the beach or near the breakwater. After a period in the water both men found themselves around the end of Lucy's Breakwall and in the Swansea Channel. It was the evidence of the plaintiff that he was taken around the end of the Breakwall by the current (T30). Mr Blackman said that he "came down by the breakwall" having been "sucked in by the tide" although it is accepted that at this time of that particular day in 1998 the tide was on the ebb. There was a discussion between the men and Mr Blackman decided to get out by swimming along the breakwall, occasionally diving for fisherman's lures, before finding a break among the fishermen on the seawall (T491). Mr Blackman said that he and the plaintiff swam along the wall, although the plaintiff was 20 metres further out as he "did not like to be too close to the wall" because of the fishermen who "throw things at you". After Mr Blackman left the sea he did not see the plaintiff again until he saw the plaintiff in an injured state at the RSL Club on the south-western corner of the Channel.

Another relevant feature of the Channel was the location of marker buoys along the northern and southern entrance to the Channel. The buoys on the southern side of the Channel are relevant in this case, in particular the second buoy located directly opposite the Coast Guard base (PX1 and PX4). It is the location of the plaintiff, in relation to this buoy that is one of the key questions that I have to determine in this matter.

The accident

It was the plaintiff's evidence that he was face down in the water near the second marker buoy, which I identified earlier, but on its southern or land side (T141), when he heard the sound of a boat engine. He lifted his head and saw what turned out to be the defendant's boat - a 6.8 metre cabin runabout - heading straight towards him somewhere between 30-50 metres away. He said 50 metres in the witness box but 30-40 metres in documentary evidence (DX2). He said the boat was raised "very high" in the water when he first saw it but came down "onto the plane" just before he was hit (T142). By "on the plane" as I understand it, it was meant that even though the boat is at speed, the boat body is more or less parallel to the sea (DX13). The speed of the boat, it is common evidence, was 12-15 knots. As the boat approached him, the plaintiff decided to dive under the boat and as he did so he felt a "thump". On surfacing he realised that he had been hit by the boat's propeller and suffered severe injury to his right and left legs and feet, particularly the right foot.

6 I shall hereafter refer to the appellant as the plaintiff and the respondent/cross appellant as the defendant.

The accident: Liability issues fought in the cross-appeal and the appeal

7 The defendant's position (in short) is that the plaintiff was snorkelling in a major navigational channel and that this was not a foreseeable risk calling for someone to keep a special lookout for swimmers. There should have been a verdict for the defendant.

8 The plaintiff's position (in short) is that his actions contributed in no way to the accident or the injury. Duck-diving was the fastest and best solution and a reasonable response to the "agony of the moment" in which he was placed solely by the defendant's negligence.

9 The entrance to the Swansea Channel and thereby to Lake Macquarie is approximately 400 metres wide. The seawalls are located along on the north and south heads. Boats coming up and down the Channel have to cross a bar. There is a line of prominent red navigational buoys situated approximately 100 metres to the north of the southern sea wall and running approximately parallel to it.

10 The southern sea wall is a popular haunt for fisherman.

11 As indicated in the passage set out above, the primary judge found that the plaintiff was snorkelling in the navigational channel, ie to the north of the line of marker buoys. This finding was well open on the evidence (see Red 16-20) and it is not challenged in the appeal.

12 To both navigator and swimmer, the line of marker buoys indicated the navigational channel. There was evidence that it was used frequently by boats, with hundreds passing up and down on a single weekend day during the summer time. (The accident occurred on a weekend.)

13 The plaintiff at all times maintained that he had been swimming to the south of the line of buoys, with the corollary that the defendant's boat had moved outside the navigational channel by the time of the accident. But this testimony was rejected in the face of compelling evidence to the contrary from the defendant and his two fishing companions and an independent eye witness, Mr Clark. Mr Clark was unable to attend court, but statements given by him to the Waterways Authority in connexion with an inquiry into the accident were admitted into evidence. He was a disinterested spectator who observed the accident from a clear vantage point on the southern breakwater. He observed "the snorkeller swimming" in a diagonal line away from the breakwall. He said (Q20):

He was swimming in the direction of the centre red buoy and at the time of the accident he had just gone passed (sic) it.

14 Mr Clark said that the plaintiff was swimming face down in the water, but that he could see his yellow/lime green flippers and his snorkel. In Mr Clark's opinion, the defendant's vessel "wasn't speeding - wasn't going flat out .... It was sitting down in the water - coming in at the same speed as the swell. It wasn't on the plane". In answer a later question (Q34) he said:

As he came out of the swell he accelerated and at the same time brought the boat onto the plane and hit the snorkeller just past the red centre buoy.

15 Mr Clark described the conditions on the south side of the channel as "smooth" with the tide going out.

16 In his written submissions in this Court, the plaintiff contended that the finding that he was in the navigational channel was irrelevant to the issue of contributory negligence. I cannot accept that. It is like suggesting that nothing turns upon whether or not a pedestrian walked onto a busy roadway. The plaintiff was familiar with the area and he knew that the navigational portion of the channel was used for boats. Furthermore, he knew that signs were posted along the southern sea wall purporting to prohibit swimming.

17 The suggestions made either in the plaintiff's evidence or in the submissions on his behalf that there is a relevant distinction between swimming and snorkelling or that the expressed intent of the warning/prohibition was limited to the area bounded on the north by the line of marker buoys cannot be accepted either.

18 The defendant did not establish that the prohibition on swimming was based upon a statute or regulation. Nevertheless, the warning (if that was all it was) reinforced the obviousness of the risk undertaken by a swimmer venturing into a busy navigational channel.

19 It is convenient at this stage to address the issue in the cross-appeal as to the defendant's negligence.

The defendant's negligence

20 The finding of negligence was expressed as follows:

In my view, given the speed at which the defendant's boat was travelling in an area where there were other users of the water, including people such as the plaintiff, the defendant could have and should have maintained a lookout sufficient for him to see the plaintiff in the water or his fish buoy and to either stop in time to avoid collision or take evasive action. Here the defendant's evidence and that of Mr Harrison was that the time of first seeing the buoy and the "thud" of hitting the plaintiff were almost instantaneous events.

In my view, as there were three men in the boat, one steering and the other two with nothing specific to do (the marlin having been stowed) there would have been neither expense, difficulty or inconvenience in either Mr Blake Woodforth or Mr Harrison or both to be appointed lookouts so as to warn the defendant of objects in the sea such as the plaintiff.

In the case of the plaintiff, his wet suit, and fluorescent snorkel could be seen by Mr Clarke sitting on the breakwater 100 metres from the marker buoy near where the accident occurred. The defendant's boat, a powerboat travelling at 12 to 15 knots represents a threat of serious injury to persons such as the plaintiff in the water. In my view, as in motor vehicle accidents, the duty of care is a high one. As Kirby P said in Caldwell v Deka (NSW) CCA unreported) a motor vehicle case, the duty of care is a high one because "of the risk of serious injury which almost invariably follows a collision between a motor vehicle and a pedestrian. The high standard of negligence and care imposed upon motorists derives from a recognition by the law of the fact that usually the motorist is in the best position and had the responsibility to control events which might lead to a collision between (relevantly) the motor vehicle and a pedestrian". In the case before me, although not a motor vehicle accident the plaintiff is spearfishing, and using a snorkel with his face down in the water. The boat and its occupants including the defendant are above the water and in the best position and in my view had the responsibility to control events and avoid a collision with the plaintiff and this could have and should have been done by the defendant keeping a proper lookout.

21 The trial judge had earlier cited the well known passage in the judgment of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8. His Honour correctly identified the foreseeability of risk of injury to the plaintiff or persons situated as he was as a key matter going to the issue of the defendant's negligence. Before us, the defendant accepted that this was the critical factor in relation to both duty of care and breach. As to the relevance of foreseeability to each concept, see Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 76 ALJR 1348 at [12].

22 The foreseeability of the risk that swimmers could be in the navigational channel was, in the circumstances, determinative of the issue of negligence because it was found that the plaintiff was visible to a person standing in the defendant's boat at a point well in excess of the distance within which a person driving the boat ought reasonably be expected to take simple evasive action.

23 The defendant's submission was, however, that the possibility or likelihood of people swimming in the navigational channel was non-existent or so remote as to be far-fetched and fanciful. In light of the High Court's reminder in Tame that the criterion of liability is failure to take reasonable care, it was submitted that the defendant had no reasonable basis for suspecting that there might be swimmers. The defendant contended that the possibility of swimmers being in the navigational channel was as remote as that of pedestrians darting across the Sydney Harbour Bridge with the consequence, it was suggested, that any failure to look out for such an eventuality could not be branded as negligent.

24 As to foreseeability, the trial judge said at Red 25-26:

In my view the possibility that persons such as the plaintiff might swim, snorkel and spearfish in the waters off Lucy's Breakwall as far out as the marker buoys, in particular the second marker near where the accident occurred was foreseeable by persons such as the defendant. The Swansea channel is a popular area for water users, snorkellers, fishermen, boaters, scuba divers and speafisherman. Mr Groth, a scuba diving instructor and dive shop operator said (T511) that he takes up to 30 scuba diving students into the channel at a time. He said the channel had "many users, surf skiers, rowing clubs, snorkellers, spear fishing, scuba divers". He said he had been a scuba diver for 14 years and operated a dive shop at Swansea since October 1995. He said he took people down to the water almost every day for lessons (T499). He said he used "the whole of Swansea Channel and also around Catherine Hill Bay and around Swansea Heads". At the time of the accident it is generally accepted that the sea was calm, at least on the western side of the bar where the accident occurred, and the winds light. It was the sort of day, in the middle of the holiday period where the other channel users, besides the defendant, might have been on or in the channel. In my view it was foreseeable that other channel users, that is other than the defendant such as the plaintiff, may have been using the waters of Swansea Channel, near Lucy's Breakwater on 3.1.1998.

In my view that risk of injury to the plaintiff was real and neither far-fetched nor fanciful.

25 Some additional support may be drawn from Mr Blackman's evidence. He was the plaintiff's swimming companion. At Black 491 the following evidence appears:

Q. After you got around the end of the break wall, would you tell us what happened, where you went then?

A. We came down the break wall. We actually got sucked in by the tide then. Me and Rod sort of met up there and we decided we would just swim along the break wall until we could get out because there were a lot of fishermen along there so we proceeded to swim along there. I was about 20 metres off the wall and Rod was a bit further out. He doesn't like to be too close to the wall because of the fishermen. They throw things at you and that.

26 There was evidence that fishermen along the southern sea wall used to throw things at swimmers. To me this is unamiable but hardly surprising given the signs prohibiting swimming and the risk that swimmers might get entangled in fishing lines. On that account swimmers such as the plaintiff and his companion used to swim at some distance out from the sea wall. This is not to say that swimmers had to pass north of the line of marker buoys to be safe from missiles. No one suggested that. But it reinforces the evidence that swimmers entered the water in this area, despite the signs, and that they did not necessarily keep close to the southern shore. The location of swimmers at or near the line of buoys would in my view be in itself sufficient to trigger the need for boat owners to exercise some vigilance lest some swimmers drift or swim beyond the line and into the navigational channel. The channel is tidal.

27 The nub of the defendant's contention in the cross-appeal is the submission that (Orange 24):

The findings made by the trial judge that there was a possibility that persons might be in the waters "as far out as the marker buoys" does not assist Moore in the present case, his Honour having found that Moore was beyond the marker buoys and in the navigational channel at the time of the accident.

Thus, while it may have been foreseeable for a boat travelling within the area as far out as the marker buoys, to keep a lookout and to have foreseen someone being in the water in that area, there is absolutely no reason why Woodforth would have any reason to believe that any person would be in the water in the channel itself.

28 In my view this submission misconstrues the passage above. The reference in the opening sentence to "the waters of Lucy's Breakwall as far out as the marker buoys" does not mean thus far and no further. This becomes clearer because of the passages cited from the evidence of Mr Groth about swimming in the Swansea Channel in an area that included the navigational channel (JAB 515).

29 In light of the issues fought at trial and on appeal, the finding as to the foreseeability of swimmers in the navigational channel (if sustainable) rendered the conclusion of negligence impregnable. I would uphold that finding.

The defence of volenti

30 This defence was rejected at trial for the following reasons (Red 30-31):

The defendant had pleaded that he is not liable by reason of the fact that the plaintiff chose to expose himself to the risk of injury by swimming and spearfishing in the Swansea Channel near the second marker buoy. The evidentiary onus is on the defendant to establish the defence. The defendant has to establish that the plaintiff knew of the risk or danger or that he fully comprehended the nature and extent of the risk and accepted the whole risk. (Roggenkamp v Bennett [1950] HCA 23; (1950) 80 CLR 292).

There are three elements that must be established by the defendant:

(a) that the plaintiff knew of the danger;

(b) that he fully appreciated the risk of injury created by the danger; and

(c) he voluntarily agreed to accept the risk and its consequences. This last element is an objective test to be inferred from the plaintiff's words or in this case his conduct (Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39).

What the third element means is that the plaintiff fully accepted the risks (McPherson v Whitfield (1996) 1 Qd R 474 at 480. His Honour Mr Justice Lee said in that case at 481, that where acceptance of the risk is to be implied "from the mere fact that the plaintiff has undertaken the activity which is said to give rise to the risk, it will, in my opinion, often be difficult if not impossible to infer that the plaintiff has taken the legal risk of injury upon himself".

it was not the submission of the defendant that the sport of spearfishing was the dangerous activity, but rather the risk arose because of where the plaintiff chose to carry out the activity, that is the Swansea Channel, an area of water that the plaintiff knew was used by others, such as boat users. That is, the risk did not arise out of the sport itself as in for example Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383.

In the plaintiff's case, the evidentiary material does not support the inference that the plaintiff was agreeing to run the risk of injury by being run over by a boat while spearfishing. It goes no further than showing that the plaintiff elected to spearfish in the Swansea Channel despite his knowledge that others, including boat owners such as the defendant used the channel. I accept that the plaintiff knew that persons such as the defendant used the Swansea Channel, however I do not believe that he appreciated that there was a risk he would be run over by a boat. I cannot conclude that he accepted this relevant risk or agreed to bear the legal consequences.

The defendant's defence of Volenti fails.

31 On appeal the defendant submitted in his written submissions that the plaintiff's conduct had been "extremely foolish" to the level of rendering him "undeserving" of compensation. He cited South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205 at [12] per Santow JA and Morris v Murray [1991] 2 QB 6.

32 In my view, the trial judge was correct, for the reasons he gave. This was not a case where it was proved that the plaintiff fully comprehended the extent of the risk and chose to accept or ignore it (cf Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 at [125]) or otherwise conducted himself so as to attract the very demanding standards of this ill-defined defence.

Contributory negligence

33 Before us the plaintiff contested the assessment of contributory negligence at 40%.

34 The trial judge had said this (Red 31-33):

The defendant also pleaded contributory negligence as part of it's defence both arising out of the plaintiff spearfishing as contravention of the prohibitions applying to spearfishing in the Swansea Channel where he was injured and at Common Law. I have already found the plaintiff was, on the balance of probabilities carrying out the activity of spearfishing at the time of the accident in that the word spearfishing encompasses swimming around dressed in gear consistent with spearfishing and carrying a hand spear while looking for fish to spear.

Contributory negligence is established if the defendant proves - and the evidentiary onus is on him, - the plaintiff guilty of conduct which amounts to a failure to take care for his own safety (Commissioner for Railways (Qld) v Ruprecht [1979] HCA 37; (1979) 142 CLR 563).

The plaintiff had been swimming in the area for 20 years. He was aware that motor vessels also used the channel. He knew the location and purpose of the navigational buoys. On his evidence he was swimming near the second marker buoy, although not on the northern side of it according to him. His activity - spearfishing - involved him lying face down in the sea and breathing through a snorkel with his general vision limited. He relied on the sound of boat engines to determine their whereabouts. While he towed a white fish buoy, its purpose was primarily to attach fish caught. The buoy did not have a blue and white divers flag attached (DX8).

The plaintiff said he knew that a flag on a buoy indicated a diver in the area (T156). He said that there was no legal requirement to have a flag. "Those that do, do, those that don't, don't" was how he explained his approach. He was in the "those that don't" category.

The plaintiff was in the Channel spearfishing by a deliberate act on his part - that is he chose to do so knowing there were motorised vessels in the area. He also knew spearfishing was prohibited. I have found the defendant guilty of negligence. In his motorised vessel the defendant was in the best position and failed to keep a proper look out. In the circumstances the plaintiff was also negligent specifically when he failed to take care for his own safety by not taking a divers flag, spearfishing near a navigational buoy, relying only on his hearing to warn him of approaching boats and not wearing a fluorescent wet suit. Taking these factors together with his flaunting of the prohibition against spearfishing, I assess contributory negligence at 40%.

35 The defendant submitted that the judge's conclusion was well open to him and beyond appellate challenge in light of the principles stated in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 and Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867.

36 The trial judge's conclusion in the final paragraph that the plaintiff was himself relevantly negligent when he failed to take care for his own safety is posited, in terms, upon five matters: (1) not taking a diver's flag, (2) spearfishing near a navigational buoy, (3) relying only on the plaintiff's hearing to warn him of approaching boats, (4) not wearing a fluorescent wet suit and (5) "flaunting of the prohibition against spearfishing".

37 I do not construe the final paragraph of the passage as though the five named factors are the sole criteria of the plaintiff's negligence to take care for his own safety, or that they are to be assigned equal weight in the ultimate conclusion. The plaintiff certainly did not advance the latter proposition.

38 The plaintiff nevertheless challenges item (1) on the basis that carrying a diver's flag was not a legal requirement (see JAB 432); item (4), on the basis that this safety measure had not been pleaded or litigated at trial, and in any event it was irrelevant in light of the evidence that Mr Clark had been able to see the plaintiff; and item (5), as irrelevant and based on factual error.

39 The plaintiff submitted that the finding in item (5) was not open on the evidence. He contended that the "admission" recorded in the judgment about readiness to spear a fish if he saw one was confined to his activities before he entered the Swansea Channel. His Honour rejected this in the light of the evidence summarised at Red 20-22. At Red 22H-R the judge said:

It was submitted at the actual time of the collision with the boat the plaintiff was not actually spearfishing, that is diving with the express purpose of spearing a fish that he had spotted from the surface. On the basis of the admission set out above and the obvious extension of the meaning of the word "spearfishing" to encompass looking for fish to spear, I find that from the time the plaintiff drifted around the point of Lucy's Breakwall to the time of the accident with the defendant's vessel the plaintiff, on the balance of probabilities, engaged in spearfishing activities. There is no doubt that the activity of spearfishing or floating on top of the water breathing through a snorkel and diving from time to time to search for and spear fish - involved swimming on the part of the plaintiff, aided as he was by wearing a pair of diving fins.

40 I incline to the view that the judge was entitled to draw the conclusion that he did, notwithstanding the evidence of the plaintiff in which he later confined his testimonial admission in the manner indicated. The trial judge saw the plaintiff give evidence and he was in a position to assess the truthfulness of his testimony. The inference that the plaintiff continued to fish was, I think, open having regard to the fishing accoutrements carried by the snorkeller and in light of the evidence that the plaintiff (unlike his companion Blackman) did not swim to shore at the earliest opportunity, but rather veered in a north easterly direction going (it was held) as far as beyond the line of marker buoys.

41 In the end, however, nothing turns upon this factual issue. Even accepting, as I do, the evidence that fishing was prohibited in the relevant area to the knowledge of the plaintiff (see JAB 148-9) I cannot see how breach of this prohibition had any independent causal link with the accident. The function of any fishing prohibition would have been protection of fish rather than the fishers. By "independent" I mean that a finding that the plaintiff was fishing really took the matter no further than a finding that he was snorkelling. Either way, he was swimming face down, thereby restricting his ability to be seen and his ability to see and hear an approaching power boat. I do not understand the plaintiff to have suggested that snorkelling involved remaining on the surface of the water. He accepted that he would dive for lobsters or inanimate objects of interest that he saw on the sea bed.

42 Nevertheless, the reasoning that underpins the apportionment is vitiated because it included reference to the plaintiff's "flaunting of the prohibition against spearfishing". It was not open to the trial judge to give independent effect to the plaintiff's conduct in the "flaunting" of any prohibition against spearfishing, because that in itself had no independent bearing on the critical issues namely:

(i) Whether the plaintiff's conduct manifested a lack of care for his own safety; and

(ii) Whether such conduct materially contributed to the occurrence of the accident.

43 It therefore falls to this Court to re-assess.

44 To my mind it is critical to look at what the plaintiff was actually doing. He was swimming face down within the area of the clearly depicted navigational channel. On his own admission, he knew that he was supposed to keep out of that channel and that vessels were passing up and down the channel (Blue 1010, 1018). The snorkelling affected his capacity to see and hear the approach of motor boats notwithstanding his awareness of the regular presence of boats in that portion of the channel. The dark wetsuit that he was wearing on his upper torso further contributed to his comparative lack of visibility to others. The fact that the plaintiff was visible to Mr Clark who watched him as he swam slowly out from the shore into the path of the defendant's boat does not preclude these findings.

45 There are any number of steps that the plaintiff might have taken to have lessened the risk, including having a companion to keep watch, wearing brighter clothes or having a "diver's flag" or some other object more clearly visible than the piece of polystyrene that floated some distance away from his body used to support any fish he caught and hooked onto it. I do not however see these as separate or additional particulars of contributory negligence. Rather, they are matters which point to the comparative ease with which the plaintiff might have taken better care for his own safety.

46 At the end of the day it was what the plaintiff was actually doing that both contributed to the accident and evidenced his very substantial lack of care for his own safety.

47 During argument the Court informed the plaintiff that re-assessment would not necessarily mean a reduction in the percentage found by the primary judge. To my mind there was a high level of failure to take reasonable care for the plaintiff's own safety. Taking into account the matters to which I have drawn attention, I would not disturb the apportionment of 40% deducted for contributory negligence.

Plaintiff's appeal against awards for general damages and damages for economic loss

48 As indicated, the plaintiff challenges as inadequate the awards of $150,000 for general damages and $120,704 for loss of earning capacity.

The plaintiff's injuries and disabilities

49 The accident caused extremely severe injuries to the plaintiff's left and right legs and feet. The boat's propeller slashed into his lower legs, causing deep lacerations and compound fractures of the right fibula, the right talus/ankle joint and the left calcaneus.

50 The plaintiff was initially in hospital between 3 and 27 January 1998. His wounds were debrided under general anaesthesia. The right fibula fracture was reduced and an external fixateur applied. The wounds were initially packed and left open and treated with intravenous antibiotics. There were four substantial procedures in the operating theatre in the ensuing days, culminating in the closure of the wounds on the right leg and left heel on 9 January 1998. A Schantz pin was placed in the right first metatarsal and triangulated to the previous screws on the right external fixation device to realign the right leg fractures. The sutures were finally removed on 12 January 1998. The plaintiff was discharged from hospital on 27 January 1998, using a wheelchair.

51 The pain and discomfort in the early weeks was intense and continuous.

52 On 26 February 1998, the plaintiff was admitted for day surgery, when two pins were removed from the distal fibula.

53 After his first discharge from hospital the plaintiff spent long periods at home just lying on the couch and being attended to by his wife. There were home visits by the general practitioner. Physiotherapy commenced in late March 1998.

54 After about three months the plaintiff began to need less intensive care and assistance at home.

55 The physical condition at the time of the trial (October 2001) was summarised by the primary judge in the following terms:

There is no report from any treating orthopaedic specialist before me, or from the Plaintiff's treating GP. It appears the plaintiff is not having any treatment for either his right or left legs except for pain killers although it is not certain how strong they are. Without a report from the plaintiff's GP it is hard from the evidence to ascertain what medication the plaintiff takes other than non-prescription pain killers which he says he consumes daily....

56 This is not to deny the continuing physical impact of the injuries. Dr Bornstein estimated a 65% loss of use of the legs below the knees (Blue 509). The plaintiff walks with a marked limp and uses special boots and a stick. His high stepping gait causes discomfort in the hip region. He takes a lot of Panadeine Forte. It is not in dispute that his continuing physical disability precludes any return to carpentry at building sites or even supervision work at building sites, given that climbing and clambering capacities would be essential. Obviously a wide range of other physical activities are now excluded.

57 Dr Bornstein reported:

He has recovered from the injury sustained, however, there is permanent disability because of the nature of those injuries and the fact that much of the damage could not be repaired and, in particular, the joint damage and the tendon damages caused to the right foot. There is also neural damage clearly, as the patient does have altered sensation in appropriate situations in both feet.

I consider these significant disabilities, particularly with ambulation on the right hand side and on the left hand side primarily with paresthesia in the heel.

His condition essentially is static. He possibly could be upgraded by fusing of the right foot and it would be my view that something of the order of a pan talar arthrodesis may be required which ought to give him pain relief.

58 The trial judge made an award for past and future out of pocket expenses. This is not in dispute in the appeal. His Honour was not convinced of the need for any major operations in the future, but accepted the medical evidence that an arthrodesis was probable and that it would require some post-operative treatment.

59 The plaintiff suffered back problems in 2001 and these led to a discectomy in August 2001. This injury was however found to be unrelated to the boating accident (Red 41-44). This finding is not under challenge in the appeal.

60 A very significant aspect of the plaintiff's suffering that stemmed from the accident was a diagnosed post-traumatic stress disorder. The illness developed as a psychological reaction to the events of the boating accident and to the physical injuries sustained in it. The treating psychiatrist Dr Robinson observed that the plaintiff had:

... developed a binge pattern of alcohol abuse secondary to the Post Traumatic Stress Disorder. I note that there appear to be underlying narcissistic personality traits, which may be accentuating his psychological vulnerability to physical injury, and perhaps also to financial loss, particularly when that reflects upon his perception of himself.

61 There were many attendances upon Dr Robinson between August 1998 and April 2001. Dr Robinson's conclusion in a report of 21 August 2001 was as follows:

In conclusion, I note the effects of Post Traumatic Stress Disorder are still quite apparent. The symptoms have been dampened to an extent by anti depressant medication (Prozac). The symptoms are subdued when Rod is able to keep his mind busy on other matters. The problems resurface and become exacerbated however when things are not going well, and particularly when those things serve to remind him of the trauma of the boating accident.

As his physical injuries and disabilities are permanent and likely to become worse and not better as time progresses, I think it likely that the Post Traumatic Stress Disorder will also continue to be troublesome for the foreseeable future.

62 Dr Robinson predicted the need for further psychiatric treatment to enable the plaintiff to cope. The judge appears to have accepted Dr Robinson's opinion (see Red 37) in preference to the evidence of Dr Revai who was called by the defendant.

63 Dr Bornstein observed, in a report of 29 May 2000, that at that stage the most important form of treatment needed was psychiatric. "Once those conflicts are resolved, this patient will be able to function better as a person and rehabilitation into some form of employment may well be possible" (Blue 507). See also Dr Glaser at Blue 66-69.

64 In October 2000 the plaintiff participated in an assessment by a rehabilitation consultant, Mr De Giovanni. The Report (Blue 543) assessed the plaintiff as having average intelligence, a rating indicating the ability to succeed in a range of skilled trades and suggesting the potential for small business operation and middle level clerical and sales positions. His literacy skills were average or above average. His numeracy skills demonstrated limited ability but were described as "adequate for daily living needs and for jobs requiring the ability to apply standard number processes to ... more routine calculations". His clerical aptitude was described as "modest" and lack of formal training in clerically based work or familiarisation with office technology indicated that vocational training would be advisable to improve his competitiveness for employment.

65 While the plaintiff holds no formal qualifications beyond the School Certificate, he told Mr Giovanni of:

... numerous other vocational skills acquired through on-the-job experience. Essentially they come from the building industry where he has done civil carpentry and joinery; the entertainment industry where he has worked as both performer and promoter; the security industry where he has worked as both bouncer and company operator; and in general entrepreneurial and business management where he has had a number of businesses, and most recently from the mid 90s has been negotiating a number of projects, particularly within the Solomon Islands, in areas as diverse as mining, tourism, fishing and importation of timber.

66 The Report contains other information relevant to measuring the true extent of the impact of the accident upon the plaintiff's earning capacity. One factor to be taken into account in the defendant's favour is the plaintiff's pre-accident decision not to work as an employee in sustained remunerative employment. The plaintiff told Mr De Gioivanni that he had been in receipt of unemployment benefits when working neither as a building subcontractor nor in his main pursuit of business dealings in the Solomon Islands. This information no doubt contributed to Mr De Giovanni's opinion that:

Mr Moore has no interest in a routine, conservative job, so much so that he prefers a Social Security income which allows him the opportunity to pursue his business interests, to a better paying routine job. This is not necessarily inconsistent given that his work history following his three years as an apprentice butcher [in the early 1980s] has basically reflected this style of employment. (Blue 559)

67 An assessment of the plaintiff's post-accident work capacity was made by Associate Professor Richard Jones, a senior specialist in rehabilitation medicine. He reported (Blue 570):

I am of the view that Mr Moore could undertake clerical duties, administrative and management tasks, but heavy lifting or prolonged walking or standing would be contraindicated. One would encourage him to enter into work for remuneration and I am of the view that the provision of a Disability Support Pension should be a temporary measure.

Appeal against award of general damages

68 The trial judge assessed general damages at $150,000 "given the circumstances of the accident, the severe injuries, treatment, and disabilities that resulted which will last the plaintiff's lifetime (excluding the plaintiff's back)".

69 It was submitted that the primary judge erred in failing to make an express finding of continuing Post Traumatic Stress Disorder. This complaint is technically correct, but such a finding is in my view implicit in the favourable recounting of Dr Robinson's evidence (Red 37-8, 38W).

70 The plaintiff submitted that $150,000 was clearly inadequate having regard to the facts as found. $200,000 or greater is sought for general damages. I do not agree. The award was within the bounds of what was open to the trial judge.

Appeal against award for loss of earning capacity

71 A very significant part of the trial was the plaintiff's claim for economic loss and loss of earning capacity. I have separated these two components, because that reflects a division found in the way the case was fought at trial and the reasoning of the primary judge. Many millions of dollars were claimed under the first head. The plaintiff recovered much less than the amounts claimed on both heads, but confines the appeal to the award for "loss of earning capacity" in the limited sense used in the judgment.

72 It is convenient to set out the relevant particulars in the Amended Statement of Particulars pursuant to Pt 9 r27 of the District Court Rules:

3. LOST EARNING CAPACITY

3.1 The plaintiff's income earning potential has been severely impaired.

3.2 At the time of accident the plaintiff had a number of business interests. He was actively engaged in recommencing his furniture business. He was also actively engaged in promoting his business interests in the Solomon Islands.

3.3 At the time of the accident it was the plaintiff's intention to recommence a business he operated previously under the style of Moore Unique Australian Furnishings. The business involved the manufacture and retailing of household furniture. He commenced the business in 1993 and in the first year of his business produced sales in the order of $40,000.00. Shortly prior to the accident arrangements were made between the plaintiff and Derek Jones, a certified Tree Care Consultant, whereby Derek Jones would supply timber to the plaintiff suitable for the manufacture of household furniture. With a ready supply of timber a profitable business opportunity was available to the plaintiff. He lost the opportunity of pursuing that business interest as a consequence of the wrongdoing of the defendant. The plaintiff was intending to resume the active pursuit of this business opportunity from February 1998 but was prevented by his injuries from doing so. He claims $30,000.00 net per year from 1 February 1998 to date and continuing in respect of that lost opportunity.

3.4 Since about 1994 the plaintiff has pursued business interests in the Solomon Islands. At the time of the accident he was actively pursuing interest in activities including tuna fishing, tourism, timber and beche de mer (sea slugs). He had borrowed large sums of money to pursue the business interests in the Solomon Islands. As a result of the wrongdoing of the defendant he has been unable to pursue these business interests and has lost the opportunity of substantial income from one or more of the projects. The plaintiff claims $200,000.00 net per annum from 1 February 1998 to date and continuing in respect of his lost business opportunities in the Solomon Islands. This claim is a discounted claim to reflect the degree of uncertainty of the plaintiff obtaining earnings from such business opportunities in the Solomon Islands in excess of $200,000.00 per annum.

3.5 At the time of the accident the plaintiff was seeking persons to invest in setting up fishing operations in the Solomon Islands for tuna. The plaintiff had a business arrangement with a Mr Dettke who at the time held a fishing quota/licence for 2000 metric ton (ie 2,000,000 kilograms) for tuna. The plaintiff was to receive a commission of $US0.50 per kilogram and in excess of that if he was able to secure a price per kilogram in excess of $US1.50. But for the plaintiff's accident the likelihood was that the fishing activities would commence early 1999 and a full quota of tuna licence would have been fished.

3.6 At the time of his accident the plaintiff, in conjunction with Mr Victor Tan, had established a business for the harvesting of beche de mer. Mr Tan had injected large sums of money into the enterprise but the enterprise was unable to be continued because of the plaintiff's injuries and disabilities. Had the business been able to continue it was expected that some 7,500 kilograms per annum of beche de mer would have been harvested and the plaintiff would have received 2% of the sale price.

3.7 At the time of his accident the plaintiff was involved in business discussions relating to the development of an international Five Star Resort near the airport at Honiara. A local business man in Honiara, Mr John Lee, was prepared to provide the land and the government of the time had promised to provide support. Talks were proceeding at a preliminary stage towards a project with an estimated capital cost of around $90,000,000.00. As a consequence of his accident the plaintiff was unable to further participate in these negotiations and lost the opportunity of bringing the negotiations to a fruition and of receiving a commission of 2.5% of the capital cost of the project.

3.8 In addition to discussions involving the development of the resort, the plaintiff was also involved in business discussions with Mr Jeffrey Growth relating to the setting up and operations of a resort style dive centre in the Western Province of the Solomon Islands. Again as a consequence of the accident, the plaintiff lost the opportunity of pursuing these negotiations which would have returned to him, had the project proceeded, substantial income by way of 10% profit share from the operations.

3.9 The plaintiff claims $200,000.00 net per annum from 1 February 1998 to date and continuing in respect of his lost business opportunities in the Solomon Islands. This claim is a discounted claim to reflect the degree of uncertainty of the plaintiff obtaining earnings from such business operations in the Solomon Islands in excess of $200,000.00 per annum.

3.10 Apart from his business interests, the plaintiff had the experience and qualifications to work in the building industry as a site foreman. In that business he would have had an earning capacity at least in the order of $1000.00 per week gross. The plaintiff's injuries and disabilities have prevented him from pursuing opportunities and employment in the building industry and claims in the order of $750.00 per week net from 1 February 1998 to date and continuing in respect of this lost earning opportunity. However the plaintiff concedes this claim overlaps (and therefore is not additional to) the claims referred to in paragraphs 3.3 and 3.4.

3.11 In summary the plaintiff claims compensation for the following lost opportunities:

i) The opportunity of resuming business as a manufacturer and retailer of household furniture; claimed at the rate of $30,000.00 net per year from 1 February 1998 to date and continuing;

ii) lost opportunity of pursuing business interests in the Solomon Islands, claimed in the sum of around $200,000.00 per annum to date and continuing;

iii) further or in the alternative for the lost opportunity of pursuing his earning capacity in the building industry, claimed at the rate of $750.00 per week to date and continuing.

73 In essence, the principal component was a claim that the plaintiff's anticipated or actual business interests were detrimentally affected by the accident. There was an additional claim, which was run at trial essentially as a fall-back position, based on lost wages that the plaintiff could have and would have earned (uninjured) in addition to anticipated earnings from his business ventures. The parties are at issue as to whether this alternative case was ultimately pressed in relation to past economic loss.

74 As will appear, the plaintiff was largely unsuccessful in the claim for loss of business income. Part of his complaint as to the primary judge's assessment focuses upon the judge's failure to give proper weight to the alternative claim in the circumstances.

75 The plaintiff's sporadic pre-accident work history, the essentially hypothetical nature of both limbs of his case for economic loss, lack of evidence as to comparable earnings other than average weekly earnings and the absence of critical business records made the judge's task a very difficult one. So too did the overwhelming concentration upon the business loss component which, on closer analysis, presented more and more as a totally unrealistic ambit claim.

76 In his early life the plaintiff had worked as a butcher, in a hang gliding school, as a stripper and in other activities. Between about 1988 and 1993 he worked in the building trade as a non-ticketed carpenter.

77 During 1993-1994 the plaintiff manufactured and retailed household furniture under the business name Moore Unique Australian Furnishings. The business produced sales in the order of $40,000. Obviously net profits were substantially less. This business does not appear to have been continued thereafter. The plaintiff claimed that he had formed an intention to revive this venture, but this was not accepted by the primary judge.

78 In 1994 he moved into a string of business activities in the Solomon Islands which turned out to be fairly unremunerative. His limited income thereafter was supplemented by Social Security payments (unemployment benefits) and borrowings from family members.

79 As indicated in the particulars set out above, the plaintiff pursued business ventures in the Solomon Islands and the Pacific Ocean area from 1994 onwards. The evidence showed that this was done to the exclusion of all other remunerative callings between 1994 and the trial in late 2001. It was the plaintiff's case at trial that these were being actively pursued at the time of the accident and that good prospects of substantial earnings were cut short by the accident.

80 One problem for the plaintiff was that the continuing physical disabilities stemming from the accident did not affect this type of working, save in a fairly marginal way. And the continuing psychological problems were not shown to have held him back from these ventures to any marked degree. Furthermore, most of the ventures were not shown to be remunerative despite the plaintiff's best efforts before and after the accident, even allowing for the limited negative impact of the accident upon his capacity to do entrepreneurial work.

81 I am not suggesting that the plaintiff's accident-induced discomfort, pain and unhappiness with its attendant psychological problems had no negative effect. But the gauging of its extent and the extent to which it sounded in monetary loss were very difficult issues in the trial, for reasons already indicated. Undoubtedly, credit issues were involved, although the judgment refrains from making express disclosure of their impact. The plaintiff was challenged as to his willingness to work (pre-accident) and exaggeration of his symptoms (post-accident). It was put to him that he was understating the extent of his active involvement in the entrepreneurial activities in which he increasingly engaged in the run up to the trial. He chose to put almost the entire weight of his case in the lost business income basket. These matters overlay the usual factors which indicate cause for appellate restraint in disturbing a judgmental assessment of loss of earning capacity (Ashford v Ashford (1970) 44 ALJR 195, State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536).

82 The overseas ventures were resumed after the initial three month period of severe post-accident incapacity. There were meetings, phone conversations and faxes. The plaintiff travelled to the Solomons or Singapore once in late 1999, once in 2000 and twice in 2001. These ventures produced practically no income in the three and a half years between the date of accident and the trial.

83 The ventures in the Solomons between 1994 and 2001 related to beche de mer, tuna fishing, timber importation, mining and tourism and were addressed in detail in the judgment below (Red 52-60). The capacity to turn these ventures to profit depended on particular political clout in the Solomons, binding contractual arrangements, and business partnerships evidenced by mutual trust as distinct from disputation. The plaintiff appears to have been on the debit side of the ledger in every such respect. The trial judge also recorded that "all the plaintiff's business activities including timber [were] characterised by vagueness or assertions of commercial relationships that [were] not backed up by documents or other evidence" (Red 57).

84 The only remunerative business venture found to have been affected by the accident involved timber importation. The trial judge accepted that the plaintiff had lost some opportunities in the timber industry in the first 12 months after the accident. He allowed $25,000 for this component, but that was the only award in the plaintiff's favour in relation to lost business opportunities. As will appear, the plaintiff returned to timber importing in the months before the trial.

85 This business income part of the plaintiff's case was not pursued in the appeal and it is for that reason that I have not tarried over the details. Nevertheless, it remains of some relevance to the alternative loss of earning capacity case that is now pushed to the forefront of the appeal.

86 In the main, the failed claim for lost business earnings does significant harm to the alternative or fallback case described in the judgment as "loss of earning capacity". In the first place, the evidence shows that well before the accident the plaintiff had largely turned his back upon his earlier calling in the building industry, and paid employment generally. He had not engaged in it since 1993. He had in fact looked to Social Security to supplement his income in the mid-1990s. I am not suggesting any impropriety on that account, but it does suggest that the plaintiff would not and/or could not maximise his earning capacities in the years before the accident.

87 When the plaintiff emerged from the severe traumas of the first months after the accident, it was to his overseas business ventures that he turned his attentions. This casts light on the plaintiff's work intentions at and before the time of the accident, his capacity to perform non-labouring work after the accident, his drive and ability to adapt, and his limited ability to turn dreams into hard cash (at least in the Solomon Islands). These factors obviously cut both ways in the issue of assessing economic loss. In all the circumstances, it would be totally unreal to view the plaintiff's overseas ventures as some attempt to mitigate a loss of income from manual or building exertions. The overseas activities show the plaintiff as an explorer of business opportunities with largely unaffected capacity to attend to work that did not involve prolonged walking or physical effort. This corroborates the views expressed by the witnesses who assessed the plaintiff vocationally in 2000 and 2001.

88 Having addressed and largely rejected the plaintiff's claims for lost business income, the primary judge turned to the additional claim for loss of earning capacity. His Honour said this:

The plaintiff's evidence was that prior to 1993 he had worked in the building trade as a non-ticketed carpenter. Counsel for the plaintiff submitted that this work was the benchmark for establishing the plaintiff's loss of earning capacity. Counsel for the defendant submitted that since 1994 at least when the plaintiff started his business activities, his business activities were the benchmark. He submitted that within a few months after the accident the plaintiff was engaged in business activities, specifically attending a meeting in Sydney in March 1998 and by the use of faxes and the telephone and gradually with his physical limitations was back into his business activities, such as they were, before the accident, within 12 months of January 1998.

The plaintiff's evidence was that he had done subcontracting work for Mr Blackman in the early 1990s and also for Mr Reid both of whom gave evidence and confirmed this. Mr Reid, whom I accepted as a witness of truth, said he would have used the plaintiff to assist him dismantle the Seagulls Stadium, but because of the plaintiff's injuries he was "useless in the trade" (T522). The plaintiff said he did not actually visit the stadium site to inspect it and decide whether he could do some sort of work, such as supervise (T319).

The medical evidence supported the plaintiff's evidence of his problems with working on building sites because of his injuries, particularly to his right foot.

Professor Jones said at p67 (DX 16):

He would not be able to work as a labourer or carpenter within the building industry, and indeed no physically demanding occupation would be appropriate, although he would be able to walk about for part of the day and to drive a motor vehicle. Perhaps his interest in importing timber from the Solomon Islands and also in his other interest overseas, may result in successful income.

Dr Bornstein (DX 16 p8) said:

It should be noted however, that his ability to work in a situation requiring him to be on his feet and to be ambulant over rough terrain is going to be significantly impaired, if not impossible in a practical sense and from my understanding of the requirements of the employment in the Solomon Islands, it would appear that this is unlikely to be pursued.

Clearly, working at a desk or in an organisational situation should be well within his capacity physically. In the building industry though, even builders who are simply supervisors are required to walk over uneven ground and in fairly hazardous situations, at times climbing onto scaffolding to check work etc. Clearly the organisational aspects of the building industry should be well within his capacity.

It is my view that with the injuries sustained by this patient that he would [not] have been able to attend to any form of employment, even in a clerical capacity for a period of at least four to six months and possibly longer.

In my view, while the plaintiff's activities before the accident were commercial, he did agree with Mr Reid to assist in the dismantling of the Seagulls Stadium, an agreement he reached before the accident according to Mr Reid. How he would have continued with his business activities while working full-time on a building site for some months was not made clear. I accept that he was going to do some form of physical work for Mr Reid on the Seagulls Stadium. I must also take into account in assessing the plaintiff's capacity to earn post accident what he has been doing since January 1998. He has got himself back into his various business activities including a new one (trying to negotiate the sale of 52% of Solomon Resources). He does work at what he describes as "his yard" at Kurnell and later Newcastle including the assisting in the unloading of containers of wood and the loading of wood onto trucks (T291). It was not clear whether this work was the physical loading and unloading, or supervising or both, but he undertook some work activities was his evidence, although without remuneration. He can drive a car from Newcastle to Sydney and around Sydney, although I accept he has problems in doing so. He has demonstrated that he can still negotiate in business dealings, if unsuccessful to date, despite his injuries. I have also taken into account the fact the he underwent a laminectomy operation to his lower back unrelated to the defendant's negligence. The effects of this operation would preclude him from the heavier type of labouring work.

Taking all these factors into account, the plaintiff has demonstrated to me that he has a substantial residual earning capacity despite his injuries, and he has tried to return to his normal business activities. The agreed average weekly earnings figure for September 2001 was $669.00 net. In my view the appropriate weekly wage figure for the future - to age 65 - to reflect both the plaintiff's lack of economic capacity due to his injuries, and his residual capacity, is $150pw from 3.1.98.

I allow $120,704 ($150 x 946.70 x .85) from the date of injury to age 65.

89 Senior counsel for the plaintiff pointed out that the words "from the date of injury" in the last sentence should read "from the date of trial", because the actuarial figure 946.70 is based on 26 years working life. That was the approximate term of the plaintiff's working life from trial to age 65. This means that there was no possible doubling up in the judge's reasoning, since the $25,000 awarded for lost business income covered the first 12 months since the accident. I would treat this part of the reasoning as containing a simple slip in expression.

90 Of course, adjusting that slip in the way proposed means that the judgment should be read as awarding only $25,000 for the three and a half year period between the accident and the trial. This is based on the implicit finding that the plaintiff, uninjured, would have continued to pursue his overseas business interests in the Solomons throughout this period despite continuing lack of income. This finding was challenged by the plaintiff, but I would not disturb it.

91 I am not persuaded that at the trial the plaintiff maintained a claim for past economic loss other than that based on the damage to the business interests.

92 The Particulars (supra) and trial submissions (JAB 803) show that the plaintiff always claimed a pre-accident capacity to earn at least average weekly earnings. This appears never to have been in serious dispute (se also CA Tr pp104, 108, 110). The real issues were whether he ever had a greater capacity and the extent to which his capacity was harmed by the accident.

93 A very late attempt to tender an expert report containing calculations and assumptions as to other rates of wage earnings was not pressed. No other wage rates were proved. Mr Reid's evidence about the one-off job offer to work as a demolition supervisor for 12 weeks, 7 days a week at the rate of $1400 per week gross including accommodation and vehicle was relied upon as showing capacity generally, not as a specific claim of lost wages (see JAB 524). The plaintiff always claimed a pre-injury capacity to earn $750 per week, ie $80 per week over the ultimately agreed average weekly earnings of $670 (see Red 10, White 609). His Particulars indicate that this was claimed from the date of accident (ibid), subject to acknowledging that he could not double-dip to the extent that the loss of business earnings covered the field. The trial judge calculated lost earnings with regard to lost wage income from date of trial, treating the previous three and half years as covered exclusively by the business income loss claim. I have already concluded that the judge was not in error in this regard.

94 No evidence of relevant wage rates was proved, beyond whatever one might infer from Mr Reid's one-off job offer. This said, I would be prepared to infer that a carpenter-foreman could earn an above average weekly wage and, proceeding from the Reid evidence, would not cavil at $750 per week as at date of trial for such a calling. This is not to say that the judge erred in concluding that average weekly earnings were an appropriate benchmark for the plaintiff, but that is another matter.

95 In this Court the plaintiff argued, at times faintly (cf CA Tr p48), that the trial judge should have considered a wage loss method of calculation for at least some of the period up to trial. The defendant says that the judge was not asked to do so. On this the signs are conflicting, but taken overall they support the defendant, in my view (see JAB 577T, 581X-582W. Cf Red 10).

96 In any event, I am unpersuaded that the plaintiff (if uninjured) would have switched his attentions from the pursuit of the Solomon Islands business ventures before at least the end of 2001, despite his wife's blandishments and his lack of success to that date. I base this conclusion upon the way the case was fought at trial and the devotion the plaintiff showed to the Solomons ventures before and after the accident. After the initial months of severe trauma the plaintiff returned to those interests and the claim pressed at trial was for loss to those interests. That claim was addressed in a manner attracting no criticism. The plaintiff's physical disabilities did not greatly interfere with his capacity to work in the business ventures and, to the extent that his physical and psychiatric disabilities stemming from the accident produced financial loss during the pre-trial period he was compensated by the award of $25,000.

97 In November 2000 a company called Davrod Pty Ltd was incorporated. The plaintiff appears to have been the moving force behind it, according to its Web site (Blue 805ff). The company describes itself as an import/ export company operating throughout the Pacific Islands, Middle East and Far East Asia. It deals in timber and other products. There is considerable evidence of significant dealings in timber in late 2001 (Blue 265-304). To the extent that those dealings involved the physical movement of timber, there was evidence of the plaintiff assisting or supervising such activities which the trial judge accepted (Red 63). This further reinforces my view that the plaintiff did not establish that, had he been uninjured, he would have turned to "ordinary" employment such as employment in the building or demolition trade during this three and a half year period.

98 The plaintiff principally challenges the award of $150 pw for future lost earning capacity.

99 Two elements are involved in this challenge. First, the plaintiff submits that his continuing disabilities made it unrealistic to infer a residual earning capacity of $520 per week, subject to the conventional 15% allowance for contingencies. Second, the plaintiff submits that the primary judge erred in using a benchmark of average weekly earnings ($670). He should, it is contended, have treated the plaintiff (uninjured) as capable of earning considerably more. In particular, it is contended that the plaintiff (uninjured) could have and would have earned at the higher rate of a foreman builder ($750) once he "came to his senses" (a term used by Meagher JA and myself in argument) and abandoned the fruitless attempts to establish businesses in the Solomons.

100 It is reasonable to infer that sooner or later the plaintiff would have "come to his senses" about the futility of pursuing the Solomons ventures. The difficult task is to determine how long after 2001 this would have been and what he would thereafter have tried to do in the way of employment. The adverse findings in relation to the Solomon Islands business ventures are now largely embraced by the plaintiff. He submits that they show the probability that, sooner rather than later, he would have looked elsewhere for income to support himself and his family had he been uninjured. I would accept this general proposition, but with substantial qualification. It is more than theoretically possible that the plaintiff would have opted to continue living off social security and enjoying his life as a serious fisherman while dabbling in overseas business ventures (whether or not they turned out to be remunerative). This needs to be taken into account as is the possibility, again more than theoretical, that the plaintiff would have continued his efforts in the Solomons long after a disinterested observer might have considered it objectively desirable to stop doing so.

101 The plaintiff also submits that the passage from the judgment set out above is deficient for want of exposure of the judge's reasoning process.

102 The passage discloses the following findings referable to the present issue:

(i) Before the accident the plaintiff was able to work as a carpenter foreman in the building industry. He had not engaged in such work for several years, but the pre-accident offer from Mr Reid confirmed his capacity to earn remuneration in this field. (As indicated already, the plaintiff never asserted that he could have earned more than $750 per week from such building work.)

(ii) In Mr Reid's words, the injuries from the accident made the plaintiff "useless in the trade" in the sense that his physical disabilities prevented him from walking over building sites.

(iii) The plaintiff was unable to engage in any other physically demanding occupation.

(iv) Apart from the initial period of 4-6 months after the accident [during which time, the plaintiff would have pursued the overseas business ventures had he been uninjured], the plaintiff was and is able to walk about for part of the day, to drive a motor vehicle (with some problems) and to engage in clerical duties. In the words of Dr Bornstein, whose opinion is implicitly accepted, "working at a desk or in an organisational situation should be well within his capacity physically". Dr Bornstein also concluded that the "organisational aspects of the building industry" remained "well within his capacity" and this opinion was also implicitly adopted as a finding.

(v) The business activities engaged in by the plaintiff after the accident, also disclose a continuing ability to "negotiate in business dealings".

(vi) These matters together with the skills and capacity demonstrated by the plaintiff in the moving and supervising of timber loading in "his yard" demonstrate "a substantial residual earning capacity despite ... injuries".

(vii) Translated into monetary terms, this represented $150 per week lost earning capacity from date of trial to age 65, bearing in mind the agreed average weekly earnings figure of approximately $670 per week from September 2001. On this basis, the residual earning capacity was $520 per week.

(viii) This sum was translated into a figure of $120,704 assuming 15% for vicissitudes.

103 This, in my view, is a sufficient disclosure of the judge's basic reasoning process. Although there is no mathematical derivation of the $150 sum, the verdict cannot be faulted on that account given the way the case was fought at trial, the essentially impressionistic tasks of determining what the plaintiff really would have done when he finally "came to his senses" about the Solomons ventures and the extent to which his continuing physical and psychiatric problems stemming from the accident would have impacted negatively on his capacity to earn.

104 The plaintiff correctly points out that the ultimate issue is that of determining the extent to which the diminution of his earning capacity was or may be productive of financial loss. This involves identifying what capacity has been lost and what economic consequences will probably flow from that loss (Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143).

105 Notwithstanding the complaint as to the deficits of fact-finding or exposure of reasons, the plaintiff asked the Court to reassess rather than to order a new trial. I agree that this is the proper course to adopt. The task of putting a figure on the lost earning capacity is a difficult one, but it stems from the hypothetical nature of the particular enquiry and evidentiary deficits (many of them being unavoidable). This Court, like the trial judge, must do the best it can.

106 The plaintiff submits that the accident left him with a residual earning capacity of not greater that $350 per week, taking into account educational and vocational issues together with the availability of appropriate work. This concession of a residual earning capacity of $350 per week is made on the basis that the plaintiff submits that he was an above average performer, capable of earning $750 per week pre-accident, and therefore post-accident remains an above average performer. As such, he will do better than average and hence earn $350 per week despite disability.

107 I am not persuaded that the judge erred in treating average weekly earnings as the benchmark. The finding was open having regard to the plaintiff's work history after 1994, notwithstanding the Reid offer. I say this in light of (1) the plaintiff's overall work experience, (2) his pre-injury skills, qualifications and work experience, (3) the evidence suggesting that he was not prepared to maximise his earning capacity in "steady" employment, (4) the absence of evidence about earning rates in callings said to be suitable to the plaintiff and (5) the way the case was run at trial with almost all of the plaintiff's eggs being placed in the business loss basket.

108 The plaintiff is on firmer ground in challenging the monetary figure placed upon his residual earning capacity. The plaintiff submits that it does less than justice to the evidence generally and ignores (in particular) the adverse impact of the continuing psychological problems upon his ability to obtain and retain employment; his continuing physical problems; and uncertainties about the availability of suitable work for a man of the plaintiff's age, qualifications and background. For a man now aged in his 40s the capacity to develop new skills and qualifications is limited.

109 The judgment says little about the continuing psychological problems and it does not make any specific finding addressing them in the context of the claim for future economic loss. This is one reason why I am prepared to look more closely than otherwise at the "bottom line", despite recognising the need for appellate restraint in disturbing an impressionistic determination of this nature.

110 In my view, the matters raised by way of particular challenge on the plaintiff's behalf persuade me that the residual earning capacity was less than the figure allowed. However, they are partially offset by my acceptance of the defendant's contention that the pre-accident work experience indicates that it is unlikely that the plaintiff would have sought employment on a regular basis in the building or any other trade from late 2001 onwards. I am certainly unpersuaded that the plaintiff, uninjured, would have earned in excess of average weekly earnings in ordinary employment year in and year out.

111 In my view it is more likely that the plaintiff would have continued pursuing overseas business interests, including the type of ventures for which Davrod Pty Ltd was set up. These cannot be seen as the attempt of an injured man to mitigate his losses. They represent part of the lifestyle chosen by the plaintiff before the accident which would have continued in one form or another well after 2001 despite the abandonment of the particular ventures in the Solomon Islands that figured so prominently in the case at trial. Of course the plaintiff is entitled to be compensated for any shortfall in earnings from such ventures due to the continuing impact of his injuries. But in those fields, the injuries had much less impact, as evidenced by the particular findings in the judgment to which I have drawn attention.

112 The intangible nature of the various competing inferences means that no figure for lost earning capacity in the future can be proved or even demonstrated mathematically. I would however increase the sum for future lost earnings from $150 per week to $200 per week. This increases the sum for future economic loss from $120,704 to $160,938.

113 In the upshot I propose the following orders:

1. Appeal upheld in part.

2. Substitute a verdict of $256,804, with judgment to date from 25 January 2002.

3. Dismiss cross appeal.

4. Defendant to pay plaintiff's costs of the appeal and cross appeal.

114 MEAGHER JA: I agree with Mason P.

115 HEYDON JA: I agree with Mason P.

**********

LAST UPDATED: 12/02/2003