Anderson v Alcoa of Australia Limited [2001] WADC 132 (14 June 2001)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : ANDERSON -v- ALCOA OF AUSTRALIA LIMITED [2001] WADC 132

Tort - Negligence by employer - Contributory negligence of employee - Contract - Contributory negligence - Counterclaim for deceit - Injury - Different causes - Causally independent injuries - Disentanglement - Damages - Assessment

Industrial Relations Act 1979

Workers' Compensation and Rehabilitation Act 1981

Claim allowed. Counterclaim dismissed. Damages awarded

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 65 ALR 1

Beach Petroleum NL v Johnson [1993] FCA 283; (1993) 115 ALR 411

BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; (1977) 52 ALJR 20

Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205

Cavanagh v Ulster Weaving Co Ltd [1960] AC 145

Chappel v Hart [1998] HCA 55; (1998) 156 ALR 517

Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337

Davidson v Handley Page Ltd [1945] 1 All ER 235

Derry v Peek [1889] UKHL 1; (1889) 14 App Cas 337

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

Hartge v F Lassetter & Co Ltd (1916) 16 SR (NSW) 174

Jury v Commissioner for Railways [1935] HCA 29; (1935) 53 CLR 273

Keen v MacKay [1999] WASCA 193

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

Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555

Printing Industry Employees Union of Australia v Jackson & O'Sullivan Pty Ltd (1957) 1 FLR 175

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Savini v Australian Terazzo & Concrete Co Pty Ltd [1959] VicRp 102; [1959] VR 811

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Western Australia v Watson [1990] WAR 248

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

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437

Baird v Roberts [1972] 2 NSWLR 389

Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205

Bugge v REB Engineering [1998] QSC 185; (1999) 2 Qd R 227

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Darling Island Stevedoring & Litterage Co Ltd v Long [1957] HCA 26; (1956-1957) 97 CLR 36

Davidson v Handley Page Ltd (1945) 1 All ER 235

Glasgow Corp v Muir [1943] UKHL 2; [1943] AC 448

Jackson v Aida Centacom Industrial Pty Ltd [1999] WASCA 159

JLW (Vic) Pty Ltd v Tsiloglou [1994] VicRp 15; [1994] 1 VR 229

Jobling v Associated Diaries [1982] AC 744

Jones v Bartlett [2000] HCA 56; (2000) 75 ALJR 1

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

March v Stramare (E & M H ) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Nelson v BHP Coal Pty Ltd [2000] QCA 505

Nelson v John Lysaght (Aust) Ltd [1975] HCA 9; (1975) 132 CLR 201

Paris v Stepney Borough Council [1950] UKHL 3; (1951) AC 367

Sellars v Adelaide Petroleum [1994] HCA 4; (1994) 179 CLR 332

Stevens v Brodribb Sawmilling Co Pty Ltd (1985) 160 CLR 16

Vandeloo v Waltons Ltd [1976] VicRp 6; [1976] VR 77

Vaughan v Menlove [1837] EngR 424; 132 ER 490

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Western Suburbs Hospital v Currie (1987) A Tort Reps 80-120

Wylie v The ANI Corp Ltd [2000] QCA 314

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

1 By his statement of claim the plaintiff pleads that at all material times he was employed by the defendant as a Refinery Services Operator at its Bauxite Refinery at Wagerup. He then pleads that on or about 4 February 1997 at about 10.00 pm he was walking in an area known as "the compound" next to the descale crib room when he stepped on a limestone rock and fell to the ground twisting his right knee, in consequence of which he suffered injury. There then follows the bare plea that:

"The accident was caused by the negligence of the defendant, and/or its servants and/or agents."

2 Particulars of the alleged negligence then follow, which particulars include allegations that the defendant failed to ensure that the compound area was free of rocks and of stones, failing to inspect the compound area to ensure it was clear of rocks and stones and failing to provide adequate lighting to the compound area.

3 The pleading is fairly typical of pleadings filed in this Court in respect of claims for damages for personal injuries in both work related and motor vehicle accident cases in that there is no plea of a duty of care, no plea of a breach of the duty and no plea of damage causally related to the breach. It is all just assumed. The defendant does not appear to have taken any objection to the form of the pleading in this regard. If the plaintiff's pleading of negligence is in the somewhat unsatisfactory form I have just described, his plea in contract is even more open to observations of this kind. The plea is as follows:

"6. Further and/or alternatively the accident was caused by the defendant's breach of the employment contract between it and the plaintiff."

4 Following which are particulars of the alleged breach of contract which are in precisely the same terms as the particulars of negligence. There is no plea of the formation of the contract, its terms whether express or implied, whether implied by operation of law or in order to give business efficacy to the contract, which term is said to have been breached and how, in fact there is no plea in the form one might otherwise have anticipated.

5 Next the plaintiff pleads a bare breach of statutory duty without identifying the duty and how it is said to have arisen. There then follow particulars of the breach of the statutory duty which is an attempt in a rolled up sort of way to plead the duty and the breach all in one.

6 Thereafter the plaintiff pleads that he sustained injuries in consequence of the defendant's negligence and in the alternative breach of contract and in the further alternative breach of statutory duty. The injuries are particularised as follows:

"(a) Extensive tearing of the posterior horn of the medial meniscus with an associated para-meniscal cyst of the right knee;

(b) extensive lateral meniscal injury of the right knee;

(c) trauma, effusion, swelling, pain and stiffness in the right knee."

7 There then follows a plea of the plaintiff having sustained residual disabilities with particulars being provided; having to undergo treatment with particulars of treatment being provided; having endured and continuing to endure pain, suffering and inconvenience and loss of enjoyment of life, particulars of which are then provided; a loss of earning capacity past and future, particulars of which are then provided and a claim for special damages, some vague particulars of which are then provided.

8 The defendant, by its substituted defence and counterclaim admits that it employed the plaintiff but otherwise denies each and every allegation made by him in his statement of claim. The defendant further pleads that on 22 December 1988 the plaintiff suffered an injury to his left knee leaving him with a permanent disability in his left leg and, further, that on 26 May 1989 and 21 June 1991 he sustained injuries to his right knee and that on 30 November 1990 he sustained an injury to his lower back leaving him with ongoing low back pain. The defence then says:

"6. At all material times the plaintiff knew that, as a result of the injuries referred to in pars 3, 4 and 5 hereof, he was unfit for work as a Refinery Operator and, in particular, he knew that his employment in that capacity would aggravate the osteoarthritic changes suffered in his right knee."

9 Particulars are then provided. By par 8 the defendant says that it was an implied term of the plaintiff's contract of employment with the defendant that he was fit for work as a Refinery Operator and was to exercise reasonable care for his own safety. Particulars of the implied term are then provided where it is alleged that the implied term is to be implied in order to give business efficacy to the contract. By pars 9 and 10 the defendant pleads representations it says were made by the plaintiff to the defendant on 15 May 1995 by the completion of a form of application for employment, namely that he did not suffer from back trouble or any other serious injury and that he was able to perform work involving climbing and working in confined spaces, which information he represented was to the best of his knowledge and belief true and accurate in every detail. And, further, the defendant says the plaintiff completed a medical questionnaire in which he represented that he had not suffered from a back injury or pain or from pain in his joints and in respect of which he again represented the information he provided was true.

10 The defendant then pleads as follows:

"11. At the time of making the representations, the plaintiff intended and well knew or ought to have known that they would be relied on by the defendant and that the defendant would be induced by them to employ the plaintiff.

12. In the premises, the plaintiff was under a duty to exercise reasonable care to ensure that the representations were true.

13. In reliance on the truth of the representations, the defendant employed the plaintiff as a Refinery Operator.

(a) knew at the time the representations were made that they were false;

(b) made the representations recklessly, not caring whether they were true or false; or

(c) failed to exercise reasonable care to ensure that the representations were true."

11 There then follows some particulars which are a repeat of par 6 identified by me above. Then by par 15 the defendant says that arrangements were made for the plaintiff to undergo a work trial which he declined to undergo and in par 16:

"If, which is denied, the plaintiff has suffered the alleged or any such injuries, disabilities, or any such loss or damage as that complained of in the statement of claim, the same were caused or contributed to by:

(a) the injuries and disabilities pleaded in pars 3 to 7 hereof;

(b) the breach by the plaintiff of the implied terms pleaded in par 8 hereof;

(c) the matters complained of in pars 9 to 14 hereof;

(d) the failure to undertake the work trial referred to in par 15 hereof;

(a) applying for and accepting employment that he was not fit to perform;

(c) failing to take any or any reasonable care to avoid stepping on the limestone rock."

12 The defendant counterclaims for damages by way of a repetition of pars 3 to 6 and pars 8 to 14 of the defence in consequence of the plaintiff's breach of the implied term of the contract of employment pleaded in par 8 and for the deceit constituted by the representations inducing the formation of the contract which representations were to the knowledge of the plaintiff said by the defendant to be false.

13 By a defence to counterclaim the plaintiff admitted that he sustained an injury to his left knee, two injuries to his right knee and an injury to his lower back but otherwise denied all of the other allegations in respect of them. He denied that he was not fit for work as a Refinery Operator, denied the implied term of the contract of employment, admitted he completed the form of application for employment and the medical questionnaire but denied they constituted representations and then pleaded that he submitted himself to an examination by a medical practitioner engaged by the defendant during the course of which he said that he "... advised Dr Ong of [his] full medical history including the back injury and injuries to his right and left knees." The plaintiff said that in consequence the defendant employed the plaintiff with a full knowledge of his past medical history. In all other respects the plaintiff denies the allegations in the defence and opposes the relief sought in the counterclaim.

14 The plaintiff testified that he was born on 6 November 1969 and left school after completing his year 10 of high school in 1985 whereafter he obtained various jobs labouring. He said that not long after his 19th birthday, on 22 December 1988 he was working east of Pinjarra on a French gallium plant for a company called Pacific Lining. As I understood the evidence the plaintiff was working at the top of a dam preparatory to unrolling lining material when he fell from the top edge of the dam and sustained as what he described as a "pretty nasty injury" to his left knee. As a result of this he had six months off work following which he was able to obtain employment as a maintenance mechanic at a bowling alley. Since this time he said that he had not particularly had any difficulties with his left knee and that he had managed to work right up until his right knee injury "without any drama".

15 Next the plaintiff testified that he sustained an injury to his right knee in 1989. He could not remember the date but agreed that it could well have been 26 May 1989 when this date was put to him by his counsel. He did not think that he was working at the time and thought he was unemployed although if he was he does not appear to have been in receipt of unemployment benefits at least insofar as Exhibit P2 is capable of being interpreted (it has not been put together in a logical fashion). The plaintiff could not remember the circumstances of the accident but thought that it happened coming down some stairs when his left knee locked because it was not fully recovered and in consequence he wrenched his right knee. He could not recall having any medical treatment as a result of that incident and said that the only symptoms he had were that "it was a little bit sore for a while but managed to make a full recovery".

16 The plaintiff testified that he had a motor vehicle accident on 30 November 1990 when he was a passenger in a vehicle which hit a truck. He said that he "broke nearly every rib on my right hand side and I sustained a soft tissue injury to my back". He thought it took him close to two months to recover. During his period of recuperation he said that: "I was in a little bit of distress, so I went and saw a chiropractor" who performed some manipulative therapy upon him and gave him some exercises after which he was able to return to work.

17 Next the plaintiff said that he sustained a further injury to his right knee on 21 June 1991 when he was working at Southern Cross as a surveyor's offsider when he was walking through a kitchen where the floor was wet. He was wearing a pair of rubber thongs when he slipped and wrenched his knee. He had some further time off work as a result, he could not remember how long, but thought it was a matter of weeks. He said he made a recovery from that injury and returned to work with the same employer working in open cut and underground mines.

"(a) I am restricted in occupations involving work on uneven surfaces. I remained in this type of employment through necessity, however I was continually losing my footing and falling.

(b) I am limited in any labour that places stress on my knees.

(c) I can no longer run and jump, jog, kneel and squat. I am restricted with the weight I can lift and carry due to my injury."

22 Asked by interrogatory 46 to state what employment, physical labour or sporting activities he was no longer able to engage in, the extent to which he engaged in those activities before the accident, the extent to which he claimed to have been restricted in those activities and whether he had engaged in them after the injury to his left knee, the plaintiff responded thus:

"(a) mine site or similar employment including a shot-firer for which I received qualifications for just prior to my accident and now cannot obtain employment in this area due to my injury.

(b) Full-time employment. I would play football socially and weightlift and ride motorcycles on a weekly basis.

(c) I must work to earn a living, however I end up using my holidays when my knee becomes too painful.

I no longer engage in sports as this places even more stress on my knee.

(d) I have worked in areas of uneven ground however, this was through necessity."

23 Asked by interrogatory 51 to state what future treatment he would require and to say why he thought he would need it he answered as follows:

"(a) I am now required to where (sic) a knee brace, I cannot expand on any further treatment. I am now experiencing right knee problems as a result of my left knee disability.

(b) Mr M Anderson's medical report dated 21 September 1992."

24 In Mr Anderson's report of 21 September 1992 referred to by the plaintiff in his answer to interrogatory 51 Mr Anderson notes the plaintiff's major complaint "... is of giving way of the [left] knee into hyperextension especially on uneven surfaces ... he had to give up the incline work as he found it difficult negotiating the slopes with the recurrent instability symptoms. He now works in the open cut pit which has improved matters but the knee is still troublesome on uneven surfaces. He has some ache about the knee when it will give away. In fact on one occasion as the left knee gave away he wrenched the right knee and he has some postero medial joint discomfort there as well." Mr Anderson went on to observe some anterior cruciate laxity and some postero medial joint line tenderness in the right knee. Mr Anderson expressed the opinion that ideally the plaintiff would be suited to employment on the flat without having to negotiate rough steep terrain. He estimated the degree of deficit of the left lower limb at 15 per cent in consequence of the knee injury and he thought it unlikely it was going to improve or deteriorate. He thought the plaintiff would be better suited to work on even surfaces avoiding repetitive inclines but he did note that the plaintiff managed his normal work and had demonstrated that he was sufficiently fit to cope with those duties. He made arrangements to have him fitted with a left knee support in order to improve the stability of that joint. Mr Anderson expressed the opinion on 14 July 1994 (Exhibit D11) that regular heavy physical work would be expected to aggravate the plaintiff's left knee symptoms. Subsequently, on 21 October 1997 Dr Wallace, the plaintiff's then general practitioner recorded that the plaintiff described his left knee as "buggered".

25 With regard to the plaintiff's right knee, at least by 14 July 1994 Mr Anderson had observed that the plaintiff was then complaining about his right knee which Mr Anderson viewed arthroscopically. Exhibit D11, Mr Anderson's report of 14 July 1994 reads in part:

"His other complaint relates to his right knee. He has undergone arthroscopic assessment of the right knee which indicates some early medial compartment osteoarthritic changes. He has the expected knee pain with heavy work especially when climbing or squatting and the usual joint stiffness after a period of rest and inactivity.

From a work view point I would expect Mr Anderson to have difficulty with regular heavy physical work and I expect this to aggravate both his knees and his low back (my emphasis) he could however cope with a more sedentary position if that was available to him. Whilst further treatment options are available with his present level of symptoms I have advised him to accept the present situation unless there is a significant deterioration in the level of symptoms."

26 Looking now at the plaintiff's back condition Mr Anderson noted in his report of 10 January 1991 that the plaintiff was a front seat passenger in a vehicle which ran into the rear of a turning truck, killing the driver. The plaintiff was admitted to Southern Cross Hospital where he spent two days. He complained to Mr Anderson about pain in the lumbar-sacral junction but Mr Anderson then thought that his back injury was no more than a back strain which should settle with time. In May of 1991 Mr Anderson noted the plaintiff had returned to him complaining of low back pain generally about the lumbar area which became worse when working with his hands above his head ie with lumbar extension. He noted some radiation of pain to the left buttock as far as the knee. On clinical examination Mr Anderson confirmed a good preservation of lumbar movement without any apparent discomfort and saw that a previous x-ray had failed to show any bone or joint abnormality and thought his then symptoms were in keeping with a soft tissue injury to the low back. Mr Anderson noted in a report of 21 January 1993 to the plaintiff's then solicitors:

"At present regarding the back there is pain generally in the lumbar area especially with prolonged sitting and driving and some radiation of this pain to the posterior left thigh.

Clinical examination of the lumbar spine is normal apart from some generalised mid-lumbar tenderness. There is a full range of spinal movement with a normal rhythm and normal neurology in the lower limbs. Examination of the knees remains unchanged.

I have arranged up to date x-rays of the lumbar spine and also an arthrogram of the right knee and I will review him thereafter."

27 On 15 July 1993 Mr Anderson again examined the plaintiff but the plaintiff had not undertaken the x-rays and the arthrogram he had requested. Without the advantage of those investigations Mr Anderson nevertheless noted:

"Regarding the back view point this seemingly has improved. There continues to be some low back pain but the buttock and leg pain have virtually resolved. Pain is aggravated by sitting and driving. He has obtained a benefit through chiropractor Mr Rose. Examination of the low back indicated a good preservation of spinal movement."

28 Finally, in accordance with Exhibit D11 on 14 July 1994 Mr Anderson noted:

"His other symptoms relate to a soft tissue type low back injury stemming from a motor vehicle accident on 30 November 1990. He has ongoing low back pain which is activity related and aggravated by excessive physical demands on his back."

I have earlier quoted from the last paragraph of that opinion.

29 Allowing for the fact that I formed the impression of the plaintiff whilst giving his evidence that he was the type who once would have been prepared to endure some pain and discomfort in order to continue working and may therefore be thought to have been somewhat stoical in outlook, he had on a number of occasions demonstrated that when asked by his treating medical practitioner he gave an accurate account of his symptomatology such that by the time he came to be employed by the defendant he had to his obvious knowledge significant and obvious pathology in both knees and his lower back.

30 Whilst the plaintiff was employed by Jade Star contracted to the defendant as a descaler in early May 1995, he learned that the defendant was seeking to expand its descaling workforce and he made application to the defendant for employment. The application was made by the plaintiff completing a form of application for employment which in part is comprised by a series of questions of applicants. The plaintiff said in cross-examination that he knew the form was required by the defendant in order for it to decide whether or not to employ him. He admitted that the information he gave in completion of the form (part of Exhibit P1) was incorrect. He agreed that the form of application asked him to indicate if he had a history of back trouble and that he answered "no". He also agreed that the application asked him to give details of any other serious illness or injury that he had had and that he completed it "n/a". He admitted that when he completed the form he knew that he had a history of back trouble and knew that he had had a serious knee injury, at least (answering "Yes. Yes, absolutely." TS91). He claimed that the reason for these errors was that he filled out the form "rapidly on a break, it's obviously just purely and simply a mistake." Again, the plaintiff admitted that where on the form the question appeared: "COMPENSATION: Have you ever claimed or received Compensation or Insurance Benefits for any disease or injury to yourself?" he answered "Yes" and then provided the additional information "1990. MVIT vehicle accident." The plaintiff further agreed that in giving details of having previously worked at the Pacific Lining Company next to "reasons for leaving" he wrote "End of dam lining project." The plaintiff agreed that the dam lining project had not ended when he left this employment because of his knee injury.

31 During his evidence-in-chief the plaintiff was taken to this document and he said in relation to his answer to whether or not he had a history of back trouble that he did not consider himself as having a back problem at the time "... due to the amount of work that I had been doing, and I was coping with my work." Asked if his back had been giving him any trouble at work he replied "at that time, no." Next, asked "At the time of completing this form, did you consider that you had suffered any serious illness or injury?" he replied "During my time of employment with Alcoa, no, or Jade Star."

"Did they have any previous worker's compensation claims? Do they have any medical history that would predicate them not being suitable for employment? (sic) Do they have the relevant experience in the type of heavy industry that we are looking for? Do they bring the relevant skills to the job and do they have a pattern of employment which is consistent with long serving and sort of duty to an employer that we would expect?" (sic)

39 Asked if the application for employment form had disclosed that the plaintiff had ongoing knee problems that would be expected to be aggravated by work on slopes or uneven surfaces or climbing Mr Allen was emphatic that the plaintiff would have been deemed unsuitable for employment as a descaler. He went on to say: "... and as an employer and the duty that I have to ensure that people that come to our organisation are not exposed to any unnecessary risk I would have deemed that knowledge to be important in that consideration, so I definitely would not have wanted to expose an applicant to any unnecessary risk."

40 Mr Allen was of the same opinion had the employment application disclosed that the plaintiff had ongoing back problems that would be expected to be aggravated by heavy or repetitive lifting or repetitive bending. In cross-examination Mr Allen identified Exhibit P9 being a referee report form which is the document generated when an inquiry is made of a prospective employee's former employer. He identified a note on this form which read as follows:

"Previous W/Comp claim for a knee. It did not trouble him at Yilgarn. It's just that when I ask the question he responded by telling me that Dan had a knee (no serious) from a previous employer. Would re-hire."

41 Mr Allen agreed that there was a discrepancy on the face of the form of application for employment, which did not mention any previous worker's compensation claim, and the information obtained from the referee, and agreed that was something that the defendant would ordinarily have inquired further into. Mr Allen further testified that the plaintiff was offered a series of short term engagements commencing with an offer of employment made by letter of 16 June 1995 through until 22 September 1995 and thereafter similar offers of short term employment were made, some by way of letters and some not, until 24 December 1996 when the defendant offered the Plaintiff permanent employment. At the end of Mr Allen's evidence I was left with no doubt but that the defendant would not have engaged the plaintiff had it known of his true medical history as disclosed by the reports of Mr Anderson. I was further persuaded that the only recommendation that the defendant had in relation to the plaintiff's employment was from Dr Ong who recommended that the plaintiff be engaged only for short term employment in spite of which the defendant offered and the plaintiff accepted permanent employment on 24 December 1996. There had been no intervening further medical examination or assessment between Dr Ong's examination on 2 June 1995 and the offer of 24 December 1996.

42 On 4 February 1997 the plaintiff was working nightshift, the hours of which were from 6.30 pm to 6.30 am. At around 9.00 pm there was usually a tea break and at about that time on the evening in question the plaintiff stopped worked on descaling a clarification vessel and went to his crib room in order to take tea. The crib room is situated in a fenced compound which contains a large machinery shed, a set of portable toilets and two portable rooms joined to one another to form one crib room for the descaling crew. The compound area was not lit when the plaintiff, exiting from the crib room, walked towards the toilet block opposite to go to the toilet. The plaintiff said there were lights on in the crib room, there were lights in the toilet and there were lights in the main shed but there were no lights in the compound, which was dark. In fact he said it was very dark. He then said:

"I'm pretty sure I walked straight to the ablution facilities where I had gone and come out. I've walked out from the facility there and walked passed the descale vehicle and I have trodden on a rock there in the dark. I twisted my leg. I seemed to fall over the top. It was a bit like someone sort of yanking the carpet out from under you. I sort of hit the ground pretty hard. It was my right leg. ... it twisted like inwards and I went over the top ... I sort of hit the ground sort of shoulder first pretty hard ... I went down screaming sort of thing."

43 Asked how his knee felt immediately after the fall he said that he had a sharp pain in his knee and started to feel "a little tight" straight away. Then he said he dusted himself off and returned to the crib room because even though it was a bit sore initially he did not think it was "really all that bad, to be honest."

44 The plaintiff completed his shift, went home and went to bed. By the time he woke later that evening his knee was sore and swollen.

45 The plaintiff testified that the surface of the compound area was made of limestone which had been spread out roughly. He said that that was done only a matter of days before that nightshift and he said it had never been compacted or smoothed out in any way. He said that complaints had been made in his presence that the lighting in the compound was inadequate for nightshift.

46 Mr Trevor Piggott gave evidence that he had worked for the defendant at Wagerup as a descaler for some 13 and a half years and at the relevant time he was on the same descaling crew as the plaintiff. He described the surface of the compound area as follows:

"The surface of the compound was limestone. That was put in because it used to get flooded out during winter because it was on sort of a side of a hill. Then the limestone probably ranged from virtually dust up to boulders that were in up to about 40 - the size of a softball, I suppose - about four inches."

47 He said that the limestone covering had been put on the compound surface area some seven or eight years ago. Asked what the compound was like to traverse he replied:

"It wasn't good to walk across, and we used to try and blade it out a little bit with our bobcats and that but, through driving machinery in and out all the time, and especially bobcats because you can turn them on such a small circle, you're forever ripping it up."

48 He described the level of lighting in the compound at night as being "pretty poor - pretty average."

49 Mr Piggott saw the plaintiff fall over. He said it was about half way between the crib room and the toilets "I just saw Dan lying on the ground basically and getting himself up ... he got up and we had a pretty good laugh about it and went back to work."

50 Mr Piggott saw the plaintiff's knee on the first dayshift following the accident and he observed it to be swollen. Mr Piggott also said that about six months after the accident the defendant installed a set of lights on the corner of the machinery shed and directed that lighting towards the toilet block.

51 In cross-examination Mr Piggott said that he thought the limestone had only been down about six months before the accident, that none had been delivered within a week prior to the accident and further that limestone had only been delivered the once. He said "it was only ever delivered once. They put it down which was a contractor by the name of Hulls came in and put it all down. We used to just back blade it every now and again to try and keep it tidy but it was near impossible."

52 Mr David Battye gave evidence that he was employed by the defendant on the descale crew and had been working for the defendant in that capacity for some nine years prior to which he had worked for the defendant for four years in Portland, Victoria. He described the compound area and said the surface was limestone rubble that had been spread over the yard "it hadn't been compacted or anything. It had some fist size rocks in it." He said that the surface was difficult to walk on particularly if you stood on a rock which would twist an ankle. On nightshift he described the level of illumination between the crib room and the toilet as being dark until they installed a light. Mr Battye was not cross-examined on this evidence.

53 I thought each of the plaintiff, Mr Piggott and Mr Battye were credible witnesses on this issue and I am persuaded that the accident occurred on the date and in the manner described by the plaintiff.

54 It is trite to say that for a plaintiff to be wholly successful in a claim for damages for the tort of negligence there must be established:

1. A duty of care recognised by the law requiring adherence to a standard of care for the protection of those to whom the duty is owed from unreasonable or unnecessary risk.

5. which, no matter if damage had actually been occasioned to the plaintiff, must not have been too remote from the contemplation of the parties.

6. The plaintiff must not have contributed to his damage by his own conduct whether by being careless for his own safety or, knowing the dangers, voluntarily proceeding in spite of them.

55 When one sees again the elements of a cause of action for the tort of negligence exposed as a bare statement of principle as above, one can again see the deficiencies in the plaintiff's pleading in this case. (Again the plaintiff is not alone here and I remark as I have done on other occasions that the standard of pleading in this Court by plaintiffs particularly is quite deficient, more often than not because, as here, the norm seems to be that a pleading of a cause of action in the tort of negligence pleads negligence alone, leaving everything else to be assumed). The problem becomes manifest when one begins to attempt to answer the question whether a duty of care has been breached, because without the duty having been identified it is difficult to determine whether the standard of care expected has been achieved or not.

56 Having regard to the fact that the defendant does not appear to have attacked the statement of claim as being embarrassing, I will proceed on the basis that the defendant has accepted the plaintiff's assumptions that it has the duties of care towards its employees such as:

"The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee ... "

per Mason J in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672.

57 Here the duty of care relied on by the plaintiff would appear to be in respect of the premises and the duty of the defendant was to take reasonable care for the safety of the plaintiff not to subject him to unnecessary risks in those premises. The premises clearly included the surface area of the compound because the defendant's duty of care to the plaintiff extended to all parts of its premises to which the plaintiff ordinarily had recourse as an employee: Davidson v Handley Page Ltd [1945] 1 All ER 235 at 237; Jury v Commissioner for Railways [1935] HCA 29; (1935) 53 CLR 273 at 283. Even so an employer does not warrant the safety of the premises. An employer is liable only if in all of the circumstances of the case there has been a failure to take reasonable care for the safety of the plaintiff: Cavanagh v Ulster Weaving Co Ltd [1960] AC 145 at 167.

58 Firstly, in my opinion the type of injury which befell the plaintiff was entirely foreseeable. The defendant operated a refinery with the use of shiftworkers night and day and a defendant in this position must appreciate that where it requires work to be performed during the hours of darkness the place of work must be adequately lit. Next, other of the defendant's employees Mr Piggott and Mr Battye each commented upon the difficulty of walking on the surface of the compound particularly (in the case of one of them) after it had been disturbed by the passage of machinery and in particular bobcats. I accept the evidence of the plaintiff and his witnesses that the state of the compound and its poor lighting had been the subject of comment at safety meetings. It is not to the point as the defendant submits to say that it is "obviously very difficult to manage and monitor a large workforce on a large refinery site. Uneven surfaces are a feature of the job." The duty on an employer is no less because a particular employer might find it difficult of performance.

61 The history of the law of contributory negligence is well enough known and was recently set out by the High Court in Astley v Austrust Ltd (1999) 73 ALJR 403 at 408 et seq. In order to establish contributory negligence on the part of the plaintiff the defendant has to prove:

1. That the plaintiff's conduct involved a foreseeable risk of injury to himself.

2. There was available to the plaintiff a reasonably practicable alternative course of conduct which would have obviated the risk of injury.

3. That the plaintiff's conduct materially contributed to his injury in the sense that it was a cause.

4. That the plaintiff's conduct showed a want of reasonable care for his own safety.

62 Looking at the defendant's particulars of the plaintiff's alleged contributory negligence the first is that the defendant says the plaintiff was negligent in "applying for and accepting employment that he was not fit to perform". Insofar as this particular is said to support the plea of contributory negligence then the plea must fail because it cannot be shown that the plaintiff's conduct was a cause of his injury. Whilst the plaintiff may have been unfit for permanent employment by the defendant's standards and requirements he had completed the work in hand when engaged both by the defendant and by its contractor, for a considerable period. The remaining particulars may be briefly disposed of. They say that the plaintiff failed to keep any or any proper lookout and that he failed to take any or any reasonable care to avoid stepping on the limestone rock. He could not have done either because of the defendant's breach of its duty in failing to provide adequate lighting of the compound for its nightshift. Further, and in any event, the only practical alternative for the plaintiff on the defendant's case would be for him to renounce his employment and that has long been considered not to be a practicable alternative open to a plaintiff: Hartge v F Lassetter & Co Ltd (1916) 16 SR (NSW) 174.

63 In my opinion therefore the defendant's plea of contributory negligence must fail.

64 As noted earlier the plaintiff's plea in respect of his claim for damages for breach of contract suffers from the same defects as his plea in negligence. And the same observations I made in respect to it apply here. I will act upon the assumption therefore that the plaintiff intended by his plea to state the contract of employment between he and the defendant contained an implied term that the defendant was to take reasonable care for his safety. It appears that the defendant by failing to attack the pleading and by its defence acted on the basis that this was the import of the plaintiff's pleading. There is of course such an implied term in a contract of employment: Wilsons & Clyde Coal Co Ltd v English [1937] UKHL 2; [1938] AC 57 at 78. For all practical purposes this implied term of the contract of employment imposes a duty on an employer coextensive with the employer's obligations in tort. Hence contract works on the basis that the parties have themselves agreed to such a term because it is implied into their contract by operation of law, and tort imposes the duty of care upon employers as a consequence of the way in which society has determined to regulate employer and employee relationships. (A distinction without a difference some might think).

65 For the reasons I expressed in relation to the plaintiff's claim in tort I find that the defendant did not take reasonable care for the safety of the plaintiff by requiring him to perform part of his duties as an employee in a place which was not safe by reason of its inadequate lighting and inadequate attention to the removal of foreseeable pedestrian obstacles.

66 For two reasons this issue does not arise. Firstly because I found that there was no contributory negligence on the part of the plaintiff such as would act in reduction of any damages awarded to him by reason of his own failure to take reasonable care for his own safety and secondly because of the High Court decision in Astley v Austrust Ltd (supra). It is probable that the situation revealed by Astley v Austrust Ltd will be attended to by the legislature although presently, in Western Australia at least, that has not happened.

67 The plaintiff claims that the defendant breached its statutory duty to him imposed by reason of the provisions of the Mines Safety Inspection Act 1994 and the Mines Safety Inspection Regulations 1995. The difficulty with the plaintiff's claim in this regard is that each of the Act and the Regulations specifically apply to mines. Mine is defined by s 4 of the Act to mean a place at which mining operations are carried on. "Mining operations" has an extensive definition in s 4 of the Act as well and yet no evidence was adduced before me to show that the defendant's refinery at Alcoa is a mine. The averment in par 2 of the statement of claim identifies the defendant as carrying on the business of Bauxite Processing at its Wagerup Refinery, a fact admitted by the defendant in its defence. The plaintiff's claim in this regard must, therefor, fail.

68 The defendant counterclaims for breach of implied terms of the contract of employment between it and the plaintiff, and for damages for deceit. The implied terms said to have been breached are firstly that the plaintiff was fit for work as a refinery operator and secondly that the plaintiff was to exercise reasonable care for his own safety while in the course of his employment by the defendant. The terms are said to be implied in order to give business efficacy to the contract. Having regard to the fact that there is a statutory requirement in Western Australia for employees to take care for their own safety (Occupational Health, Safety and Welfare Act 1984 s 20(1)) it seems to me that such an implied term is not necessary to give business efficacy to the contract at all as required before a term can be implied into a contract: BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; (1977) 52 ALJR 20 and Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337.

69 As to there being an implied term of the contract that the plaintiff was fit for work as a refinery operator, no authority was cited to me in support of such a term being implied into a contract of employment. Here, I am presuming that the fitness referred to was the physical fitness of the plaintiff. Certainly it is an implied term of the contract of employment that an employee possesses the skills required for the position: Printing Industry Employees Union of Australia v Jackson & O'Sullivan Pty Ltd (1957) 1 FLR 175; Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; But nowhere have I been able to find an authority for the proposition that an employee warrants that he is physically fit for the work to be undertaken. Nor could I see any such term being implied as being necessary in order to give business efficacy to the contract. If such a term is to be implied in contracts of employment then the term subsists for the entire duration of the contract. Is it seriously being suggested in the case of long serving employees who for example suffer heart attacks or other debilitating illnesses such that they become physically unable to perform their duties that they are liable in damages for breach of an implied term of their contract of employment? In my opinion this aspect of the counterclaim must fail.

1. Did the defendant rely on the representations? and, if so,

73 As to the first of these questions an attempt to deceive is not enough. As it is put in Fleming's, The Law of Torts, 9th Edition at 701:

"Hence, if the representee did not allow the falsehood to affect his judgment, as where he either knew the statement to be false or regarded it as so unimportant that he would have acted in the same way without it, he cannot complain even if he acted in the way intended and suffered harm in consequence. At the same time, a defendant cannot excuse himself by proving that his misrepresentation was not the sole inducing cause, because it might have been precisely what tipped the scales, as in the case of the plaintiff who had taken up debentures, partly by reason of a falsehood contained in the prospectus, partly in the mistaken believe that they created a charge on the company's property. Nor is it a defence that the plaintiff was negligent or foolish in relying on the misrepresentation or had an opportunity of verifying it. Whilst actual knowledge of the untruth is a bar to recovery, the mere availability of means of knowledge is not sufficient."

74 Here there was an abundance of evidence that had the defendant known of the true extent of the plaintiff's medical history it would not have offered him employment at all. There was also evidence that the defendant made its own investigations and inquiries into the plaintiff's medical condition indeed subjecting him to a medical examination. The plaintiff maintains that he is thereby excused from the consequences of his deliberately misleading information in his employment application form and in his answers to the medical history questionnaire. The problem for the plaintiff here is that I accept Dr Ong's evidence that in the ordinary course of events he conducts his medical examination both by a physical examination in which he relies upon his own observations but he also goes through the applicant's answers to the questions in the medical history questionnaire. Whilst Dr Ong had no specific recollection of his examination of the plaintiff some weight is attached to his testimony by the fact that he did write on the medical history questionnaire. In the end result however Dr Ong was only prepared to certify the plaintiff fit for short term employment by reason of perceived difficulties with his weight and his lung capacity. Hence, I think it can fairly be said that the plaintiff's deceit was not relied upon by the defendant to offer the plaintiff permanent full-time employment. I think on balance however it must have been a contributing cause to it offering him short term employment. This being the case then the second question falls for determination. This issue is difficult of precise resolution. Certainly the defendant suffered no immediate detriment in that the first, second, third and subsequent short term contracts of employment all were fulfilled by the plaintiff without any apparent difficulty. Put another way the defendant received the benefit of its bargain. Further, it is difficult to see how the plaintiff's deceit induced the formation of the contract of employment pursuant to which he was employed at the time of his accident, that being a "permanent" employment contract as distinct from the previous separate contracts each of three month's duration, when the defendant's advice from Dr Ong was that the plaintiff was fit only for short term employment by reason of matters not associated with his deceit.

75 The defendant placed a great deal of reliance upon the dicta in ; and in particular the dicta of McHugh J at 524:

"Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant's conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring.

In principle, therefore, if the act or omission of the defendant has done no more than expose the plaintiff to a class of risk to which the plaintiff would have been exposed irrespective of the defendant's act or omission, the law of torts should not require the defendant to pay damages. Similarly, if the defendant has done no more than expose the plaintiff to a risk for which the defendant has not undertaken responsibility and to which the plaintiff was always exposed, the law of contract should not require the defendant to pay damages for injury arising from that risk even if it follows upon a breach of contract. No principle of the law of contract or tort or of risk allocation requires the defendant to be liable for those risks of an activity or course of conduct that cannot be avoided or reduced by the exercise of reasonable care unless statute, contract or a duty otherwise imposed by law has made the defendant responsible for those risks."

76 That case of course concerned a claim for damages by Mrs Hart against a Dr Chappel, an Ear, Nose and Throat Surgeon and was successful on the basis that the doctor had failed to warn the plaintiff of a minor but nevertheless real risk of complication in respect of a procedure to cure what seems to have been a congenital defect in Mrs Hart's throat which was becoming progressively worse. The dicta of the various justices in the judgment in relation to increasing the risk of injury does not in my opinion sit well with the requirement that for a deceit to be actionable the defendant must show that it relied upon, acted upon and suffered detriment from that deceit. An increase in risk of detriment is not detriment. The defendant cannot say that it offered the plaintiff long term employment by reason of it having acted upon his deceit when its medical advice and previous practice was to offer the plaintiff only short periods of employment. There are too many intervening contracts between that which was a product of the deceit and that in which the plaintiff was engaged at the time of his accident for there to have been a causal connection between the deceit and the detriment and accordingly in my opinion the counterclaim must fail.

77 Following his accident the plaintiff was put on light duties but did not seek any medical attention for almost two weeks when, on 17 February 1997 he attended upon Dr Ong because he said his right knee "progressively got sorer and it did actually swell to the point where I could not bend my knee". Dr Ong noted the swelling and arranged for the plaintiff to be taken to the Yarloop Hospital where he aspirated the knee and then certified the plaintiff unfit for work for one week. The plaintiff said he thought that he was prescribed analgesics and anti-inflammatories. He also said that he continued working in light duties he thought for about eight months seeing Dr Ong from time to time. He certainly saw Dr Ong in July of 1997 and whether it was then or a little later he said that complaining of continuing swelling in his right knee Dr Ong wanted to aspirate it again but the plaintiff refused thinking there was too much wrong with his knee for it to be treated in that way and so he went to his own general practitioner, Dr Wallace, who he saw on 2 October 1997. Dr Wallace referred him back to Mr Michael Anderson whom he saw on the 14th of either October or November, Mr Anderson ultimately operating on the plaintiff again on 10 December 1997. Mr Anderson certified the plaintiff totally unfit for work until 31 December 1997 and thereafter fit for light work for the first two weeks from that date. Mr Anderson's certificate dated 16 December 1997 was in accord with what he thought would be the position with the plaintiff as expressed in his letter to Dr Wallace of 28 November 1997. Thereafter the plaintiff received further certificates of unfitness for work from his general practitioner through until 22 January 1998 after which, on that day, Mr Anderson certified the plaintiff unfit for work for one month pending a review which took place on 18 February 1998 when he certified the plaintiff fit for lighter work with a view to reassessing the plaintiff four weeks after that. The position then is a little unclear until 20 April 1998 when Dr Wallace certified the plaintiff unfit for work, this time for a period of 12 weeks. On the progress certificate Dr Wallace noted that the plaintiff "should be retrained for sedentary work". Subsequently, on 1 May 1998 a final medical certificate issued certifying the plaintiff fit for alternative duties namely "sedentary type job only". However, on 11 June 1998 Dr Leonie Croxton (a general practitioner in Pinjarra) certified the plaintiff unfit for work in accordance with Dr Wallace's prior certificate of 20 April 1998 when he had certified the plaintiff unfit for 12 weeks. In other words I think on the face of this certificate Dr Croxton was saying that Dr Wallace's original estimate was correct.

"What duties were you expecting to be asked to perform on that occasion? I honestly thought I was going to be back helping David and Trevor continue with their standard work instructions.

So that task was not completed, from what you are saying to us? Yes, I never got the chance to get anywhere near the office.

5 January 1999 was the date you have told us that you went back? Okay, yes, sounds about right, yes, or that was the end of my leave.

That was the end of your leave? That's right.

You went back and what happened on your first day back? The day I actually walked back on site I went over to the main workshop building where our acting descale foreman was at the time. His name was Ian Wilson. I went over there to hand him my medical updates on my medical certificates. Then he got a phone call while I was there and I understand it was Carol Geogh who actually said to Ian Wilson just get me offsite. So he had called a foreman from building 30 who we had had some - he was like our nightshift foreman - to come down and escort me offsite.

Was it explained to you as to why the employer was escorting you offsite? No it wasn't.

What was said to you about these actions by the employer? I wasn't told anything actually. I was pretty confused about it.

What happened?

NISBET DCJ: Had there been no written notice beforehand? No, sir, there wasn't, no. Michael Woolhams, the chap who escorted me offsite, was just told to get me offsite. I wasn't to walk. I was to be placed in a vehicle, driven from the site to the car park to my car, placed in my car and told to go home."

79 In cross-examination the plaintiff agreed that at a meeting before he left the defendant's employ he had made it plain that he did not want to return to work in the office because he did not enjoy it. It was put to the plaintiff that in consequence he resigned which the plaintiff denied notwithstanding that he had produced in evidence Exhibit P3 a letter to him from the defendant dated 22 January 1999 which opens:

"Further to your resignation of 13 January 1999, I would like to confirm your termination date is 21 January 1999."

80 Subsequently the plaintiff sought leave to reopen his case so that he could give some further evidence about the circumstances of him having left his employment with the defendant and he testified as follows:

"Now can you tell the Court what your present understanding is of whether or not you did resign your employment? After reading through documents, its clear that I did in fact resign when I went to a conciliation meeting in Rheola Street and I believe Carol Geogh was there."

81 The plaintiff then went on to say that he thought that this agreement was reached after the letter Exhibit P3 was written although the internal business records of the defendant suggests that this is not the case (Exhibit D17 refers). Whatever the position with regard to the precise chronology, the evidence discloses that the plaintiff resigned his employment because he did not like the sedentary duties to which he was assigned by the defendant. And he was not dismissed in the callous fashion he described in evidence-in-chief. There was no evidence about how long the plaintiff could have continued with his sedentary duties with the defendant, and none of the defendant's witnesses were cross-examined as to whether the defendant was prepared to provide the plaintiff with sedentary work indefinitely or whether, on the other hand, they would eventually have moved to terminate his employment. The defendant being a self-insurer I think it more probable than not that there would have been no benefit to the defendant in terminating the plaintiff's services. It would still have been responsible for continuing payments of worker's compensation entitlements to him, as is acknowledged by Exhibit P3. Accordingly I think I can infer that it is more probable than not that the plaintiff could have continued on his sedentary duties if not indefinitely, then at least until the defendant had paid the maximum under the Workers' Compensation and Rehabilitation Act 1981. The fact of the matter is however that the plaintiff did not want to continue in employment with the defendant on light duties and resigned his employment there voluntarily, as he ultimately conceded. The reason as he explained it was that having been given a mixture of outside work and office work on light duties he found the office work "ghastly", adding, "well, I absolutely loathe being locked up basically. That is how it felt. I don't like being inside a hell of a lot ... computers sort of confound me a bit. I don't really like to have a lot to do with them because I don't know anything about them. I never received any training to use one. I had had an instruction program at Alcoa that I did which was a one day course."

82 Following his resignation from his employment the plaintiff continued to receive payments of worker's compensation and other entitlements. Additionally the defendant continued to liaise with its rehabilitation service provider, CRS Australia in respect of the plaintiff's rehabilitation and re-entry into the workforce. It is a little unclear as to precisely when and in what circumstances CRS became involved with the plaintiff but it appears to have been common ground between the parties that CRS became involved with him before his retirement. That involvement continued after his retirement with CRS attempting to identify areas in which the plaintiff had an interest to be retrained and to seek re-employment. These included work in aquaculture and forestry services neither of which seemed to me to have been particularly realistic opportunities for the plaintiff. Ultimately however in May of 1999 CRS considered placing the plaintiff on a work trial with the approval of his general practitioner Dr Wallace. The work trial to be evaluated was as a storeman, the plaintiff having completed a vocational assessment (apparently on 22 September 1998) which indicated an interest in work in that area. Physical work performance evaluations conducted showed the plaintiff had the capacity to perform this sort of employment and his doctor supported the work trial having been advised of the nature of the duties. Bunnings at Mandurah, within easy access of the plaintiff at Pinjarra, indicated its willingness to CRS to provide the plaintiff with the work trial. A work trial was arranged and a return to work plan was prepared in late June of 1999 which was endorsed by Dr Wallace. The work trial was to commence on 5 July 1999. Thereafter, there was a difference between the plaintiff and the defendant as to the circumstances in which he declined to attend at his work trial. I thought the plaintiff's explanations for his failure to attend weak and unconvincing. I much preferred the evidence of Ms Kerryn Stewart from CRS which was thoroughly documented with a contemporaneous record of events as set out in her letter to the defendant of 2 July 1999 which came into evidence as Exhibit D7. In consequence it appeared to me that having had the opportunity of seeing the plaintiff give evidence both on the issue of his resignation from employment with the defendant and on his failure to complete a work trial which was approved by his doctor he was more or less content to sit back and do nothing to exercise his retained work capacity, at least while he was in receipt of worker's compensation benefits.

"... where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests on the defendant."

85 What Western Australia v Watson explained was that this evidence may be obtained in the plaintiff's case (at 312):

"Likewise in the present case it was for the appellant to do the disentangling and to quantify the extent of the respondent's disability caused by each of the concurrent conditions. This could be done by either evidence led in chief or elicited in cross-examination ... "

86 Using this as the logical starting point therefore I find that consistent with my earlier findings that the plaintiff has established a prima facie case of damage arising out of the defendant's negligence. The defendant has alleged the plaintiff's present incapacity for employment (whatever it is) has been materially contributed to by causally independent events and accordingly it carried the burden of disentangling them. This the defendant did by cross-examining the plaintiff and his medical witnesses as to the extent of the plaintiff's disabilities arising from his previous left and right knee problems and his lower back injury. The defendant has in my opinion demonstrated that the plaintiff had a pre-existing incapacity for employment in heavy labouring which while held in abeyance by the plaintiff during the course of his employment with it was nevertheless present, and well documented, and supported by medical opinion.

87 It is from this starting point that one can then move to a consideration of Thomas v O'Shea. With respect I concur with the Full Court's observations in Keen v MacKay [1999] WASCA 193 at par 32 that its dicta in Thomas v O'Shea has been frequently misunderstood. The onus of proof of lost capacity for employment and the value of that loss rests on the plaintiff. No doubt there will be cases where a plaintiff having undertaken and completed that task in evidence at least on a prima facie basis, the defendant will then be faced with a choice as to whether or not it accepts the evidentiary onus which will obviously shift to it in those circumstances to prove that the value of the damage done to the plaintiff's earning capacity is not as great as the plaintiff would otherwise have a court accept. This is not to ignore either that where a defendant alleges that a plaintiff has failed to mitigate his loss, that failure to mitigate should firstly be pleaded, and, if pleaded, the defendant carries the onus of proof. The defendant has not pleaded a failure to mitigate in this case and has rested its defence to the plaintiff's claim for damages firstly on having demonstrated that it has disentangled the independently causal events responsible for the plaintiff's incapacity for employment from those which are causally related, and has then demonstrated that the plaintiff has not proved his damage. In other words the plaintiff has not proven the value of that which he has lost after the causally independent concurrent medical conditions are taken out of the equation.

1. from cessation of employment 21 January 1999 (Exhibit P3) to cessation of worker's compensation entitlements on 29 June 1999 (Exhibit D7),

2. from cessation of worker's compensation payment on 29 June 1999 "for about 3 months" (when it was re-instated - TS 69,70),

92 For the first period there seems to have been no loss because the plaintiff's counsel submitted that he received $1,476 per week (gross?) compared with $950 per week gross before he resigned his employment (written submissions of 3 May 2001 refer) and unless the defendant's negligence is productive of loss there is no damage. However the plaintiff's evidence (at TS69) was that after his payments of worker's compensation were re-instated he received about $1,140 per fortnight. I presume this to be net after tax.

93 Exhibit P4 disclosed that for the financial years ended 30 June 1999 the plaintiff received $50,050 gross less tax $14,718.80 being $35,331.20 or $679.45 per week net. Exhibits P4 and P5 together show that the plaintiff's income actually increased after his injury of February 1997 being $39,720 to 30 June 1997 and $43,952 to 30 June 1998.

94 For the second period the loss is $679.45 per week for the 13 weeks or so when the plaintiff received no income, a total of $8,833 (rounded up).

95 For the third period the plaintiff has not established any loss over and above the amount he has already received by way of worker's compensation payments (whatever sum that might be).

96 For the fourth period, no evidence was led by the plaintiff such as enables me to calculate with precision how much he would have earned had he remained as a descaler with the defendant. At trial however Mr Piggott testified (TS148) that he was then receiving $2,075 gross per fortnight however Exhibit P7 shows that on its true construction he was earning $2,221.37 per fortnight. Tax on this is $14,637.10 leaving $43,118.52 per annum, $829.20 per week, net which I will round up to $830. The minimum adult wage during this period was $385.40 up to 1 August 2000 and $400.40 per week gross from then. [There was no evidence of this. I have taken judicial notice of the State Wage Case decisions published in the Western Australian Industrial Gazette following determinations by the Commission in Court Session pursuant to the provisions of s 50 and s 51 of the Industrial Relations Act 1979. National and State Wage Case determinations have been a feature of the social fabric of Australia for almost a century. They are creatures of statute, Commonwealth and State, made by Courts of Record, and published by Government Printers].

100 The plaintiff claims interest on his past economic loss at 3 per cent per annum which is both reasonable and allowable. The calculation is $21,307 x 3 per cent per annum x 90 weeks = $1,106 (rounded off).

101 As to superannuation, the law requires an employer to pay 7 per cent of an employee's gross wages into an approved superannuation fund for accumulation until retirement. Assuming the plaintiff will not retire until age 65 when he becomes entitled to a pension (as per Wright v Shire of Albany (1993) A Tort Rep 81-239) and absent any evidence about fund earnings and the like (save for the projection in Exhibit P16), the base calculation is: $125,064 x 7 per cent deferred for 34 years (x .138) = $1,208 (rounded off).

102 Whilst the plaintiff claimed special damages (and future medical expenses) in his statement of claim, at trial he made no attempt to prove his past hospital, medical and pharmaceutical expenses, and the only evidence led on the subject was by the defendant (Exhibit D3). At trial the plaintiff pursued a claim for the cost of future medical and pharmaceutical expenses being the cost of a knee reconstruction in about 20 years time and the cost of medication. As to the operation, Mr Anderson said that this would eventually be required to the plaintiff's right knee and at present day prices would cost about $20,000. With regard to medications the plaintiff said (TS65) that medications cost him between $20 and $60 per week and that this was the pattern since May of 1999. He produced Exhibit P18 when he was recalled to give evidence. This is a print out of the medications obtained by him from the Pinjarra pharmacy between 24 August 1998 and 30 March 2001. Excluding the medication said by him not to be relevant to his claim, the list totals $748.25. The period is 83 weeks which calculates at $9 per week. (An unfortunate further example of the plaintiff's unreliability as a witness.) Of the drugs the plaintiff claimed to be taking in consequence of his right knee injury, namely Panadeine, Tilcotil and Dothep, he admitted (at TS 350,351) that Dothiepin was prescribed for his back condition.

103 Looking at the need for a future right knee reconstruction, the plaintiff has failed to prove to the requisite standard that the entire cost is due to the defendant's negligence, rather I think showing that somewhat less than half his difficulties can be attributed to it. The present day value of $20,000 deferred for 20 years is a little over $6,000. On balance a fair allowance for the defendant's culpability would be $2,500.

104 As to the cost of future medications, the plaintiff has demonstrated a past need and it is reasonable to infer, without more, that the need will continue for the foreseeable future. Here, by reason of the factors mentioned, again a global assessment is called for. The plaintiff's life expectancy is 42 years. The 6 per cent multiplier is 818 and allowing $3 per week as a fair representation of the defendant's culpability, the appropriate award under this head is $2,454 which I round up to $2,500.

105 The plaintiff did not provide a lot of detail about the impact his right knee injury had upon his everyday life. He did however explain how it now feels "very loose, very lax" and described its pre-operative condition. He deposed that his hobby of vehicle restoration had been impeded and that whilst he was still able to work around his house he couldn't "horse around " with his children. When I consider the pain and suffering the plaintiff has endured, the diminution in function in his right knee and its impact upon his life precluding him from heavy physical work, an award of $25,000 is indicated.

Past loss of earning capacity $21,307.00

Future loss of earning capacity $125,064.00

Interest $1,106.00

Superannuation $1,208.00

Future medical expenses $5,000.00

Loss of amenities $25,000.00

Total $178,685.00

106 I should make plain that this award does not include any payments of wages or hospital and medical expenses already paid by the defendant, as it should, by reason of those payments not having been proven in evidence by the plaintiff, again, as they should have been, they properly comprised in an award of special damages.