Bugge v REB Engineering Pty Ltd & Anor [1998] QSC 185

Supreme Court of Queensland|1998-09-18|Before: Chesterman J

1 The plaintiff was injured on 3 April, 1992. He was then a tradesman's assistant employed by the first defendant which had a contract to effect repairs to a dragline owned by the second defendant and located at the Suraji open cut coal mine near Dysart in central Queensland. Mr Bugge claims damages, alleging that his injury was caused by the defendants' negligence. Mr Hughes, who appeared for both defendants, informed the court that his clients do not admit liability to pay the plaintiff any damages but does not contest the plaintiff's case on that issue. No witness called for the plaintiff was cross-examined as to liability and the defendants called evidence only in relation to quantum.

2 In these circumstances I can deal with the issue quite briefly. The plaintiff and Mr Burberry, the boilermaker whom the plaintiff was assisting, had to repair a hydraulic hoseline located part-way up the boom of the dragline. To gain access they were obliged to enter the main body of the dragline and exit onto a platform from which stairs led up the boom. At the relevant time employees of the second defendant were effecting repairs to the "A" frame of the dragline. This is a large steel structure depicted in photographs 1, 2 and 3 in Exhibit 2, Mr Kahler's report.

3 The "A" frame is mounted on top of the main body of the dragline. Seen from side-on it consists of two sides of a triangle, the base of which is the roof of the dragline housing. There are two such structures, one on each side of the dragline. They are joined at the apex of the triangle by a steel beam. There are transverse bracing struts from the underside of the beam at its mid-point to an area adjacent to an imaginary line forming the base of the two triangles or "A" frames.

4 The function of the "A" frame is apparently to allow greater purchase or leverage on the luffing cables which control the vertical movement of the boom. The cables run from the top of the "A" frame on each side to a tower at the front of the dragline and thence to the tip of the boom.

5 In order to effect repairs to the "A" frame it was necessary to detach it from the base on which it rests inside the dragline. It is, of course, held rigidly in place to resist the force exerted by the weight of the boom directed through the cables onto the "A" frame which would tend to pull it forward if it were not securely anchored.

6 To effect repairs the huge nuts which restrained the base of the "A" frame were released and jacks were placed under a casting plate forming part of the restraining system. The jacks were activated by hydraulic pressure so that the weight of the "A" frame was taken by the jacks and not the restraining system.

7 The work was undertaken by three of the second defendant's employees who were novices at the task. They used five jacks, one of which had a lifting capacity of 50 tonnes. Each of the other four had a capacity of 100 tonnes.

8 As Mr Burberry, who was accompanied by the plaintiff, passed the base of the "A" frame where the jacks had been positioned, he noticed that they were overextended and the restraining nuts had been released too far. He drew this to the attention of the three tyros who responded by releasing the hydraulic pressure to the jacks which was supplied by means of a large electric pump. According to Mr Burberry, when the pressure was released the four 100 tonne capacity jacks responded to the weight of the "A" frame by retracting evenly and at the same pace. The 50 tonne jack responded more slowly with the result that it, momentarily, carried the full weight. The consequence was to increase the hydraulic pressure in that jack beyond the breaking point of its weakest part. That was the connection of the hydraulic hose to the jack. It broke, or at least became detached, and writhed, propelled by the escaping pressurised hydraulic fluid. The hose struck the plaintiff on the right side of his chest, flinging him onto a steel casing protecting a gearing mechanism.

9 Mr Kahler points out in his report that if jacks of different capacities are used there exists the possibility for what he calls a "mismatch". As I understand his report, the rate at which oil can be discharged from the different-sized jacks can vary. That is, when the pump pressure is reduced the pressurised oil flows back to a reservoir but if the rate of flow is not the same for all the jacks then the slower one will experience higher loads. In the application in question that higher load could well exceed its 50 tonne capacity.

10 Such a consequence does not inevitably flow from utilising jacks of different capacities. If the jacks are carefully and correctly adjusted so that oil flows at the same rate from all of them, none should become overloaded. The use of jacks of different capacity, though, does oblige the operators to ensure that, among other things, the rate of oil flow is identical. The risk that it is not can be avoided by using only jacks of the same capacity.

11 In the absence of any evidence from the defendant or of any challenge to the plaintiff's allegations of negligence I infer that the 50 tonne jack had not been accurately adjusted so that it released oil at the same rate as the larger jacks. I infer that this was the reason for the failure of the hose connection.

12 Mr Kahler drew attention to another point. He thought that when jacks were employed to lift large loads it is desirable to restrict the passage of people and the number of people working in the immediate area. According to the plaintiff and Mr Burberry, their only access to the pipe they were to repair took them past the jacks.

13 With the confidence that comes only from there having been no contest as to liability I find, by inference:

(a) the first defendant failed in its duty to take reasonable care for the safety of the plaintiff in requiring him to work in a place the only access to which took him past the base of the "A" frame which was then being jacked;

(b) the second defendant, by its employees, failed to take reasonable care for the plaintiff in that:

(i) it lifted the "A" frame by means of jacks of different capacities;

(ii) it failed to ensure that the rate of discharge of oil from all jacks was the same; and

(iii) it allowed the plaintiff access to the area where jacking was in progress.

14 The plaintiff was born on 20 August, 1957. He was thirty-four when injured and is now forty-two. Since leaving school at the age of sixteen he has worked in a number of industries but always as a labourer or plant operator. He was an average student at school. He has some qualifications, a certificate of competency as a plant operator and some minimal qualifications as a rigger and dogman. He does not ever appear to have worked in either capacity but the qualifications were, it seems, of assistance when applying for employment as a tradesman's assistant on the coal fields.

15 The plaintiff suffered severe bruising to the right side of his chest where the hose struck him, and to his left torso where he came into contact with the gear casing. He did not immediately seek medical attention but continued working until about 19 April, 1992 when the contract on which he was engaged came to an end. He returned to Mackay, where he lived, and consulted a general medical practitioner on 5 June, 1992. He was referred to Dr White, an orthopedic surgeon. On examination the plaintiff complained of central lower back pain which radiated down the posterolateral aspect of his left leg. The pain was exacerbated by bending, lifting and standing. A CT scan revealed annular bulging of the L4-5 disc and posterior herniation of the L5-S1 disc. A mild degree of degenerative change in the sacroiliac joints was noted.

16 Dr White thought that the injury had caused the lumbar lesion.

17 In July and August, 1992 the plaintiff consulted a number of doctors who prescribed powerful analgesics and recommended physiotherapy. He was an inpatient at the Mackay Base Hospital for about two weeks, during which he underwent traction. He continued to complain of lower back pain and sharp pains down his left leg. He was referred to Dr Weidmann who performed a lumbar laminectomy on 17 September, 1992.

18 The decision to operate was taken because the plaintiff had been in pain since at least June, 1992 and his level of disability was increasing. Physiotherapy, rest and traction had all failed to alleviate his condition. He was unable to work. His movements were awkward and caused discomfort.

19 On operation, the sciatic nerve root was found to be tightly stretched over a large extruding disc. The nerve root was retracted and a large amount of disc material removed.

20 Dr Weidmann was hopeful that the plaintiff would make a good recovery, though perhaps not be able to return to heavy manual work. The doctor reviewed the plaintiff in July, 1993 when Mr Bugge said he was much improved though he still experienced back pain which extended into his upper lumbar spine between the shoulder blades. He had not returned to work. Dr Weidmann thought that the plaintiff's disability, as reported, was "much greater than one would expect", though he thought that the plaintiff would have some residual problems and would have difficulty returning to any work of a heavy physical nature. Dr Weidmann thought that "ongoing litigation (was) a powerful reinforcer of his disability".

21 Dr Weidmann's optimism was not fulfilled. The plaintiff continued to complain of disability and pain. He did not return to work. He consulted a number of medical practitioners, including a rheumatologist, to seek relief from his pain and disability but without success. The pain in his leg returned and the discomfort in his lower back extended further up his spine. There was little he could do. Sitting and bending brought on pain, as did lifting. He was forced to lie down frequently and change positions. Walking caused fatigue and tiredness in his affected leg.

22 The doctors were reluctant to recommend further surgery but the plaintiff again consulted Dr Weidmann in June, 1996, seeking relief. He was examined by magnetic resonance which revealed some recurring disc bulging at the L5-S1 level. Somewhat reluctantly Dr Weidmann operated again to remove a small amount of disc material on 23 April, 1997. Post-operatively, Dr Weidmann thought the plaintiff had made a good recovery though he expected no further improvement. He thought that Mr Bugge had suffered an 11 per cent "permanent impairment of the whole person" as a result of his back condition which he attributed to the accident of April, 1992.

23 Although he had not initially admitted it, the plaintiff had suffered some back injuries caused by heavy lifting prior to the episode of April, 1992. This fact, together with signs of degeneration revealed by X-rays, lead Dr Weidmann to the opinion that the plaintiff would

have experienced similar back disability had he not been injured in the dragline. Dr Weidmann said:

"... I believe that he would have developed similar problems within five to ten years from 1992, even if this injury had not occurred. It is most unusual for a single back injury to produce a herniated lumbar disc in a normal healthy spine. Disc herniations generally occur when there have been pre-existing degenerative changes."

24 Dr Gillett, an orthopedic surgeon who examined the plaintiff at his solicitors' request, expressed the opinion that the plaintiff had lost ten per cent of his bodily function, attributable to the 1992 accident. He agreed that the plaintiff would have suffered similar back disability without the injury. In oral evidence he said that, absent the accident, he would have expected the plaintiff to experience lumbar pain in five to ten years from April 1992 and an inability to work caused by that pain three to five years after its onset.

25 Both doctors thought that the plaintiff is unfit for heavy manual work of the type he performed prior to his injury.

26 When recounting the effect on his lifestyle of his injuries the plaintiff's evidence was a tale of woe. He described a life of frustration and boredom consequent upon his inability to move freely or to engage in any worthwhile recreational or occupational activity. He could not play with his children nor get into or out of a motor vehicle save with considerable difficulty. He could not run or jog and required assistance to shop and to carry the purchases from the shop to the car and from the car to home. His de facto relationship had ended because of his inactivity and its psychological consequence, and his sex life had deteriorated.

27 The plaintiff's portrayal of his plight was spoilt by his being filmed performing, with apparent ease, many of the activities he had sworn he could not do. In particular he was caught on film running on the beach towing one of his young children on something like a kickboard. He ran across the beach and dived into the water. He loaded groceries into and out of the boot of his car without any evident sign of discomfort or stiffness. He managed to enter and alight from the car normally despite having said he was obliged to adopt an unusual posture to perform that manoeuvre.

28 The surveillance took an unusual character. I suppose to avoid tedious hours of observation which might produce nothing worthwhile for the camera, those responsible for the investigation engaged the services of an attractive young woman who insinuated herself into the plaintiff's life for two days. She enticed him to take her to some local clubs in Caloundra, where the plaintiff now lives. She was followed by the cameramen who were disguised, no doubt, as club-goers. The result is the plaintiff was filmed playing pool for several hours during which he bent, straightened, walked and sat without any display of discomfort. He had demonstrated in evidence-in-chief how he played pool by squatting rather awkwardly, holding his back erect. He was not so restricted on film. At another club, he danced, if not entirely energetically, without restriction.

29 It was apparent that by the time the plaintiff came to give his evidence-in-chief he believed he had been watched and probably filmed or photographed. He gave evidence of activities he had undertaken that might have been captured on film. He effected some repairs to the body work of a friend's car and then spraypainted the car, or part of it. He also built part of a fence for the same friend. These activities were not in fact shown on any film put into evidence. Though the plaintiff sought to play down the extent of the activity, what he described is quite inconsistent with his sworn assertion that he is unable to do any physical activity at all (T20.11). Despite his suspicion that he had been under surveillance, the plaintiff persisted in his attempt to persuade the court that the aftermath of his injury is much more serious than it in fact is.

30 I should, in fairness, record one observation. In a film showing the plaintiff prior to his second operation he was observed to load a child's stroller into the boot of a car. It appeared to me that he did not bend in the process but kept his back straight. Having closed the boot he walked away from the car limping for a few paces. He did not appear to be similarly handicapped in any of the footage taken after the second operation.

31 Counsel for the parties supplied me with helpful written submissions containing a schedule of the heads of damage and the respective submissions as to the appropriate amounts for each head. There is substantial divergence with respect to four only of the components:

32 The assessment of damages for pain and suffering and the loss of amenities of life is never easy but is considerably more difficult in those cases in which the court cannot put confidence in the plaintiff's depiction of his condition. Without the benefit of the photographic evidence I would have accepted the plaintiff's evidence that his life is quite miserable. It is impossible now to do so. I am left in considerable doubt as to the true extent of the plaintiff's impairment of his capacity to enjoy life. I accept that not all his days are as fun-filled as the one shared with the defendants' Mata Hari. It is clear, however, from the events of that day that he is capable of an active social life. Film of other days shows him actively enjoying his children and doing things he swore he could not do.

33 The plaintiff is a single man who lived for about four years with Ms Thea Anderson. Although he complained to the doctors that his back pain inhibited his sex life, he and Ms Anderson have two children conceived subsequent to his injury.

34 Counsel for the defendants submits that the plaintiff "is capable of enjoying the Caloundra lifestyle without the tedium of work". He submits further that the medical assessment of disability is of only ten per cent loss of function and that the plaintiff is entitled to be compensated for about ten years of that diminution of amenities. The range of opinion in relation to the extent to which the plaintiff's condition was brought forward is between five and fifteen years.

35 I accept these submissions with the qualification that the plaintiff's predicament was worse prior to his second operation. Although the defendants are justifiably suspicious of the plaintiff I think it significant that he persisted in his requests to have further surgery. He was advised against it, the doctors thinking that it could achieve nothing and that the plaintiff was exaggerating his disability. The fact that he insisted upon surgery suggests to me there was a level of real discomfort which the plaintiff was motivated to alleviate. The operation was successful and the plaintiff has improved considerably. By the time of the operation, however, this action was awaiting trial. My assessment is that the plaintiff was conscious that the amount of the award would be reduced if it were known that he had made a substantial recovery and he attempted to conceal that fact.

36 I have consulted the quantum notes and in particular, Adsett v. Noosa Nursing Home Pty Ltd (unreported, Court of Appeal, No. 223 of 1995, 6 December, 1996); Judd v. McLean (unreported, Supreme Court, Brisbane, No. 835 of 1995, 19 November, 1996); Coyne v. Samootin & Anor (unreported, District Court, Brisbane, No. 3310 of 1996, 13 December, 1996); Richardson v. Ramset Fasteners (Aust) Pty Ltd (unreported, Supreme Court, Mackay, No. 165 of 1995, 11 April, 1997); Heaney v. Heaney Marketing Pty Ltd (unreported, District Court, Maroochydore, No. 87 of 1995, 11 February, 1997) and Halvorson v. McWaters (unreported, District Court, Brisbane, No. 1836 of 1995, 17 February, 1997). I think the appropriate award for this head is $30,000.00, which is less than the amount submitted by the defendants. Nevertheless, I think it the appropriate amount. I allow interest on $25,000.00 at two per cent for six and a half years. This comes to $3,250.00. I fix $25,000.00 as the amount on which interest should be allowed because the more severe loss of amenities is in the

past and six and a half of the ten years in respect of which damages are to be allowed have elapsed.

37 The debate between the parties in relation to economic loss centres upon the likely rate of pay the plaintiff would have received but for his injury and the value of his residual earning capacity. Counsel for the plaintiff contends that he should be allowed $750.00 per week (net) for a forty-week year for each of the six and a half years since the accident. Reliance for this submission is placed upon evidence that tradesmen and their assistants working in the remoter parts of the country repairing mining machinery or constructing mining or engineering facilities earn substantial sums receiving, after tax, as much as $900 and $1,000 per week.

38 The defendants point to the plaintiff's actual earnings, summarised in Schedule B to Exhibit 31. This shows that in the year ended June, 1989 the plaintiff earned $256 net per week. In the following year, ending June, 1990, he earned $389 net per week and in the last financial year prior to his injury, ending June, 1991, he earned $412 net per week. The defendants further point to the fact that while weekly earnings are high in the occupations followed by the plaintiff prior to his accident, the work is not of long duration. It lasts as long as the employer's contracts and there are substantial periods of "downtime" between jobs. It is a lifestyle which suits some people, particularly single men like the plaintiff. A period of hard work and high wages followed by some weeks of relaxation is not an unattractive lifestyle. The effect this has on average earnings over a year may be seen from Mr Burberry. He is a qualified boilermaker employed by the first defendant for part of the year and the rest by the Proserpine Sugar Mill. He earns, he says, between $900 and $1,000 per week but his yearly income reduces to $35,000.

39 The defendants therefore submit that the plaintiff should be allowed a sum calculated by reference to the notional loss of $400.00 per week for six and a half years. This comes to about $130,000. The defendants submit that this amount should be reduced to take account of the "general vagaries of life" and the plaintiff's residual earning capacity.

40 I accept the defendants' submissions in preference to the plaintiff's with the exception of the suggested discount. The figure of $400.00 per week as the notional loss itself contains something of a discount. It allows nothing for the increase in the rate of wages since June, 1991. Moreover, although I am sceptical of the plaintiff's evidence as to the extent of his incapacity, Doctors Gillett and Weidmann accept that the plaintiff is incapacitated for hard manual work and he is not really equipped by training or qualifications for much else. I think that his level of disability was greater prior to the second operation than it is now and he may well have had difficulty in performing even lighter work. I therefore allow $130,000.00 for this head.

41 The plaintiff received $40,000.00 by way of payment from the Department of Social Security and $27,200.00 from WorkCover. The amount of past economic loss on which interest should be calculated is therefore $130,000.00 - $67,200.00 = $62,800.00. Interest should be allowed at five per cent for six and a half years. This comes to $20,410.00.

42 The assessment of future economic loss is more problematic. As well as an assessment of the likely rate of earnings, the court is obliged to consider the length of time into the future which the plaintiff would have been able to work had he not been injured, and the value of his residual earning capacity. The plaintiff contends for three years lost earnings at $950.00 per week. The rate is high but the period is conservative. The defendants submit that it is appropriate to calculate the award by reference to a loss of $400.00 per week for a period of five or six years.

43 It is impossible to be precise. I think five years loss is reasonable. The real difficulty is to ascertain the extent of the diminished earning capacity. Mr Douglas' submissions are predicated upon a complete destruction of that capacity. Mr Hughes' submissions are that the plaintiff is capable of earning about $412 per week, being the award wage for a gatekeeper or car park attendant. The plaintiff's expressed attitude is that he believes he is unable to work at all and has not tried to find work. I am satisfied that he is fit for work apart from heavy labouring but has not sought it because he perceives, rightly, that if he were successful his damages would be reduced. I suspect that this attitude may have been present only since his second operation, after which I am satisfied he was fit for work. He may not have been before.

44 In assessing damages in this type of situation, the court is obliged to steer a course between the Scylla of requiring the plaintiff to strictly prove the financial consequences of his injury and the Charybdis of resolving every uncertainty by making assumptions in favour of the plaintiff because the defendants are compulsorily insured. Where a plaintiff attempts to deceive the court by misstating the severity of his injury and overstating his incapacity for work, the task of the court in finding the true extent of the disability and its financial consequences is much harder. In such a case the court does not have to veer so far from Scylla.

45 Mr Douglas QC submitted that the defendants had not adduced any evidence as to the availability of work of the type for which the plaintiff is fit. He then submitted, relying upon Thomas v. O'Shea (1989) Aust Torts Reports 80-251, that the defendants had failed to discharge the evidentiary onus upon it of establishing that the plaintiff had some residual earning capacity. The passage referred to is in the joint judgment of Malcolm CJ and Wallace J at 68,701:

"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre-accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings: Arthur Robinson (Grafton) Pty. Ltd. & Anor v. Carter [1968] HCA 9; (1968) 122 C.L.R. 649 at p. 657 per Barwick C.J.; Van Velzen v. Wagener (1975) 10 S.A.S.R. 549 at p. 550 per Bray C.J.; and Linsell v. Robson (1976) 1 N.S.W.L.R. 249 at pp. 253-254 per Hutley J.A.; and at pp. 254-255 per Glass J.A. In Baird v. Roberts (1977) 2 N.S.W.L.R. 389 it was held that a defendant who seeks to show that the plaintiff can still do `light work' or follow a `sedentary' occupation must adduce evidence that the plaintiff is able to do such work and to obtain it and what the earnings from it would be".

The passage has been referred to with evident approval by a number of judges in this court but, with respect, if it is intended to lay down as a principle of law that in the circumstances described a defendant who does not adduce evidence of the kind mentioned will be unable to have damages assessed on the basis that the plaintiff has a residual earning capacity, I cannot agree with it.

46 According to Wigmore on Evidence (Chadbourn revision) para 2487 pp 296-7 (referring to Speas v Merchants' Bank & Trust Co, 188 NC 524 (1924) per Stacy J):

"The burden of the issue and the duty of going forward with evidence are two very different things. The former remains on the party affirming a fact in support of his case, and does not change at any time throughout the trial. The latter may shift from side to side as the case progresses, according to the nature and strength of the proofs offered in support or denial of the main fact to be established.

A "prima facie" case, or "prima facie" evidence, does not change the burden of proof. It only stands until its weight is met by evidence to the contrary. The opposing party, however, is not required as a matter of law to offer evidence in reply. He only takes the risk of an adverse verdict if he fail to do so".

"There is therefore no one test of any real significance for determining the incidence of this duty; at the outset the test is furnished by ascertaining who has the burden of proof, in the sense of the risk of nonpersuasion of the jury, under the pleadings or other rules declaring what `facta probanda' are the ultimate facts of each party's case; a little later, the test is whether the proponent has by a ruling of the judge ... fulfilled this duty; later on, it will be whether the proponent, by a ruling of the judge upon a presumption or the evidence as a whole, has created a duty for the opponent; and still later, whether, for the purposes of the judge's ruling, the opponent has satisfied this duty".

48 In Phipson on Evidence, 14th edition, (paras 4-07 and 4-10) it is said:

"While the persuasive burden is always stable the evidential burden may shift constantly, according as one scale of evidence or other preponderates. The onus probandi in this sense rests upon the party who would fail if no evidence at all, or no more evidence ... were given on either side - i.e. it rests, before evidence is gone into, upon the party asserting the affirmative of the issue; and it rests, after evidence is gone into, upon the party against whom the tribunal, at the time the question arises, would give judgment if no further evidence were adduced. ... In civil cases the evidential burden may be satisfied by any species of evidence sufficient to raise a prima facie case".

49 The whole topic is very fully discussed in Cross and Tapper on Evidence, 8th edition, pp 119 - 135.

50 This being the nature of an evidentiary onus, it seems to me impossible to propound in advance as a principle of law where an evidentiary onus will lie. It can only be determined in the course of evidence at trial. I cannot accept that, as a matter of law, I must find that the plaintiff has no residual earning capacity because the defendant did not adduce evidence that work of which the plaintiff is capable is available. In my view, the assessment of damages for lost earning capacity has to be made with reference to all the evidence that touches that point including, of course, evidence (or the lack of it) as to the availability of work which an injured plaintiff can perform. But there can be no mechanistic approach which requires the court to disregard residual earning capacity unless a defendant adduces evidence of available alternative work.

51 The cases referred to in the passage cited from Thomas do not support such an approach. Arthur Robinson (Grafton) Pty Ltd v. Carter (1968) 122 CLR at 657 is not concerned with this point. In Linsell v. Robson (1976) 1 NSWLR 249, Hutley JA said at 253:

"A body such as the Government Insurance Office, which is continually engaged in litigation involving these problems, must accumulate a volume of collective knowledge from which it could assist the court, and, in my opinion, it is unfortunate that this assistance is not rendered more freely. It is unsatisfactory for a court to be left to speculate about the possible avenues of employment for, and the earnings to be expected by, a man like the respondent in this case, where, if there are any such avenues, one would expect the appellant to be aware of them".

"The real defendant, who is known to have a virtual monopoly of the third party insurance business in this State, must have resources from which evidence can be produced to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce. It has, in my view, an evidentiary burden requiring it to adduce material of this kind. If it elects to call no evidence and prefers to rely on argument, it runs the risk that the plaintiff's meagre materials will be held sufficient to support a conclusion ... that the plaintiff retained only a severely restricted earning capacity the exercise of which was unlikely to produce a large income".

53 To similar effect are the remarks of Mahoney JA in Baird v. Roberts (1977) 2 NSWLR 389 at 397-8.

54 The New South Wales cases do not support the proposition that once the plaintiff has proved the matters referred to in Thomas damages must be assessed on the basis that his earning capacity has been destroyed unless the defendant discharges the evidentiary burden described. They do no more than show that the absence of evidence from a defendant as to available alternative employment may well lead, depending upon the calibre of the plaintiff's evidence, to that conclusion.

55 In any event, even if Thomas established the principle relied on by Mr Douglas, it would not apply here for Mr Bugge has not proved that he has been unable to find alternative employment or that his condition prevented him from finding such employment. He refused to look for work. The evidence establishes his capacity to perform work other than heavy labouring and the rate of remuneration for such employment. In this case I am not prepared to draw the inference that he cannot convert his residual earning capacity into an actual income.

56 The fact remains that he is a man of limited education whose occupational experience and qualifications are restricted to heavy manual work in the construction industry and he is unfit for such work.

58 The plaintiff claims that he was incapacitated for much of the period that has elapsed since his accident and that he was in need of personal and domestic assistance during that time. He claims still to be in need of some assistance which has been provided by Ms Anderson and his sister. The plaintiff and Ms Anderson ceased to cohabit in April, 1994, though their second child was born on 20 January, 1996 so they have, obviously, remained good friends. Ms Anderson lends the plaintiff her car so he can go shopping. She gave evidence that before their separation she performed a considerable amount of domestic and nursing care for the plaintiff. I thought Ms Anderson was a good-hearted woman who was an honest witness but I propose to act upon the evidence of Dr Weidmann who thought that Mr Bugge would not have required any assistance other than for a period of about two months before and after each operation. The defendants have, in their submissions, allowed eight weeks after each operation and ten weeks care between the date of the accident and the first operation. In respect of each period the defendants allow two hours per day for seven days per week. The rate at which care could be provided was agreed. The defendants thus allow twenty-six weeks care, the value of which is $3,514.00. Dr Weidmann would have allowed, as a maximum, thirty-two weeks. I will therefore make the award $4,000.00 and allow interest of $400.00.

59 The other components are not in dispute. Special damages are agreed in the sum of $19,260.00. The Fox v Wood component is $6,042.00. Interest on special damages not paid on behalf of the plaintiff comes to $812.50. I accept the defendants' submissions in relation to the cost of future medical expenses and allow $5,400.00. For the loss of employer superannuation contributions past and future I allow $15,000.00. The amount is calculated as six per cent of $250,000.00 being the total amount allowed in respect of economic loss.

60 This cannot be the true measure of the plaintiff's loss in respect of employer-funded superannuation contributions but both parties submitted I should adopt this simplistic approach. The true measure would be difficult to calculate. It would be the present value of superannuation payments the plaintiff would receive after retirement funded from contributions

made by an employer in respect of the period the plaintiff could not work by reason of his injury.

61 The plaintiff is obliged to refund $50,540.00 to WorkCover.

62 There will be judgment for the plaintiff against the defendants in the sum of $304,034.50 made up of:

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