Supreme Court of the ACT|1994-08-30|Before: Higgins J

Enzo Cardone v Trustees of the Christian Brothers [1994] ACTSC 85 (30 August 1994)

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Negligence - personal injuries - liability - contributory negligence - no new question of principle.

There be judgment for the plaintiff in the sum of $288,688.34.

HIGGINS J On the 19th June 1987, the plaintiff was a year 11 student at St Edmund's College, Canberra (the school). The school is conducted by the defendant. At that time, the plaintiff had been a student at the school for about 2 1/2 years.

2. At the completion of year 10, the plaintiff had formed an ambition to become a carpenter. He discussed that ambition with his mother. She urged him to improve his education by completing year 12. He agreed to do so, although he did not enrol in courses designed to generate a tertiary entrance score.

3. At about 12 noon on 19 June 1987, the plaintiff had been to a years 11 and 12 assembly. At the conclusion of that assembly the plaintiff proceeded to an area described on the plan tendered in evidence as the "Yard". It was an open area paved with bitumen. To the plaintiff's left as he entered the yard was a three storey wing of the main school building known as the science block. On the second and third storeys of that wing there were science laboratories and classrooms. On the ground floor, level with the yard, was the years 11 and 12 common room. Proceeding in a southerly direction, the ground floor also contained the school cafeteria and tuckshop. On the western side adjacent to the tuckshop were stairs leading to the science laboratories.

4. There were two sets of double doors providing entry to the cafeteria from the yard. There was internal access from the common room area into the cafeteria. It is with the northern most of the two sets of doors that this case is particularly concerned. Those doors opened outwards and were flanked by a protruding wall on each side. At a point where the door would have been opened to 90 degrees, the outer surface of the innermost edge of the door would contact the edge of a metal bracket. Such brackets were fabricated from three pieces of 75mm x 10mm steel. They were in the form of a boot-scraper, with uprights at each end set into the bitumen pavement. They were joined across the top with a third steel section. The brackets were 330mm long, 75mm wide and 165mm high. The edge nearest the door when opened was fitted with a hinged catch which fitted into a metal eye attached to the outer edge of the door so as to secure the door in the open position.

5. To the north of the set of such doors nearest the common room and beyond the protruding wall, were three water bubblers.

6. The plaintiff proceeded out of the exit from the assembly area to the yard and towards the first of the two sets of doors leading from the yard into the cafeteria. As he passed the bubblers, he looked through the windows above them and saw a friend of his, Dino Jugovac, another year 11 student, proceeding from the direction of the common room towards the stairs leading up to the science rooms.

7. The doors themselves were each about 2.13 metres high x 0.91 metres wide. The bottom panel was solid wood. There was a glazed upper panel 1.1 metres x 0.71 metres, the bottom edge being 0.9 metres above the pavement. There were glazed sidelights to match on each side of the double doors. The width of the sidelight was not expressly measured but it seems to have been about the same as the width of one of the doors. The right hand door was open but the left hand door was latched closed at least in respect of the first set of doors.

8. It was the plaintiff's intention to enter this first set of doors beyond the bubblers. When he spotted his friend he quickened his pace so that, as he said, he was "almost running", in order to catch up. As he rounded the corner, intent on chasing after his friend, his left foot caught somehow on the left side bracket as he headed for the open door. That caused the plaintiff to pitch forward whilst twisting him so that his right side turned towards the closed door. As he fell he put out his right arm to break his fall. His right forearm hit the glass panel which shattered, badly lacerating his right arm and elbow.

9. The plaintiff was bleeding badly and in shock. He was taken to, or went to, the school office where a tourniquet was applied. He was then taken to Woden Valley Hospital. Eight stiches were inserted into the wound in his wrist and 22 stitches into the lacerated elbow area.

10. Almost immediately the plaintiff noticed that there was strong pain and a lack of feeling in the whole of his right thumb and index finger. There was a partial loss of feeling in part of his ring finger and the palm of his right hand.

11. At the time of his injury, the plaintiff had a part-time job as a console operator at a service station. The employer's name was Dalbo Nominees Pty Ltd. The service station was at Melba. The plaintiff was working 20 hours on weekends and evenings. He lost two weeks from work and school as an immediate consequence of his injury.

12. In early July 1987, symptoms of pain and numbness having continued, the plaintiff was referred to Dr Nadana Chandran, a specialist neurosurgeon. It was Dr Chandran's opinion that there had been damage to the median nerve. However, there were some signs which led Dr Chandran to hope for further improvement.

13. The plaintiff was, however, experiencing difficulty in carrying out manual activities particularly with writing. He was right-handed.

14. By 18 February 1988, Dr Chandran had formed the view that an operation was necessary to attempt to rejoin the nerve. There was also a neuroma or tumour growing on the injury site, apparently resulting from the original laceration and suture. It was very sensitive, causing a sensation like an "electric shock" if bumped. Dr Chandran removed the neuroma and attempted to rejoin the severed nerve bundles. The forearm was then immobilised by a plaster slab. Dr Chandran then felt that recovery was not likely to be evident for several months. He did note that the nerve injury was much more extensive than he had expected it to have been.

15. Following this operation, the plaintiff was absent from work and school for four weeks. He did thereafter continue with his school work and his part-time work at the Melba Service Station.

16. When Dr Chandran reviewed the plaintiff on 22 August 1988, there had been some recovery in muscle power and bulk in the right thumb. However, there was still loss of sensation in the area of the index finger and thumb. There was hypersensitivity in the palm and re-formation of a neuroma over the scar site. Thus while some nerve function had been restored, the function of the hand itself had not improved. The neuroma was growing. The plaintiff also noticed, much to his concern, that he suffered badly from pain in the right hand and forearm if he attempted to use tools, particularly percussive tools like hammers. He could not manipulate small objects very effectively. It was clear to him that carpentry work was not within his physical capacity.

17. In December 1988, Dr Chandran carried out a further review of the plaintiff. He found some further strengthening of muscles in the thumb but no improvement so far as numbness was concerned. He noted that the plaintiff's capacity to perform heavy work was limited because of pain at the base of the thumb.

18. After finishing year 12 at the school, the plaintiff enrolled in the beginning of 1989 at the Bruce College of Technical and Further Education (TAFE). He undertook a part-time course of study towards an Advanced Certificate in Building. As a result, he lessened his hours of work as a service station console operator.

19. During 1989, it became increasingly obvious that the plaintiff's hand was not improving and that the injury would be a serious impediment to him acting as a "hands-on" builder. As a result, the plaintiff withdrew from a number of units. He failed others. The plaintiff concluded that he would not be able to complete the building course.

20. In about May-June 1989 the plaintiff abandoned that course and enrolled in a course leading to an Associate Diploma in Civil Engineering. Successful completion of that course would have enabled the plaintiff to undertake work involving the design and construction of roads and bridges. It would not, as I understand it, have required the same kind of "hands on" activity that the building course would have required. However, the plaintiff only lasted in this course till the end of 1989. He did not pass the examinations he sat for.

21. During this time the plaintiff continued to undertake his employment as a console operator, although he undertook less hours to accommodate his need to study.

22. The plaintiff considered that his lack of success was due to a combination of factors. He conceded that he was not academically inclined but he also considered that the pain he suffered took his mind off study and so prevented him giving his best effort.

23. During 1989 the plaintiff had again been reviewed by Dr Chandran. On 29 September 1989 he consulted Dr Owen, a consultant micro surgeon, at the suggestion of his then general practitioner Dr Cochran. Dr Chandran supported that suggestion as he had noted no relevant improvement following his review of the plaintiff.

24. Dr Owen recommended further surgery, which was duly performed on 22 January 1990 at Longueville Private Hospital, Sydney. The neuroma was excised and the severed nerve ends joined by micro sutures. Dr Owen hoped for a gradual return of function over a period of 10 months. However, when he reviewed the plaintiff on 4 December 1990, Dr Owen noted "very little progress" in the plaintiff's median nerve since the operation. There was a return of function to only 43mm of the nerve into the palm.

25. The plaintiff had had his right hand and forearm immobilised for eight weeks following the operation. He lost time from his employment at the service station as a result. He could not write during that period.

26. In February 1990 the plaintiff enrolled in a course leading to an Associate Diploma in Business and Valuation. However, his inability to write contributed to his lack of success on this course.

27. Within a few months following the operation, a further neuroma began to develop at the operation site. By the time he was reviewed by Dr Owen, that neuroma was causing the same pain as had the previous one.

28. In early 1991, the plaintiff enrolled again in a course for an Associate Diploma in Civil Engineering. He did this without being sure of what he could do or wanted to do. He conceded that his lack of motivation led to his failure in this course. He did, however, also have some trouble coping with study by reason of the condition of his hand and wrist.

29. By 19 February 1991, when the plaintiff was next reviewed by Dr Owen, return of function had extended from 42mm to 50mm from the end of his scar. The function had been 43mm before the operation. By 7 May 1991, progress was to only 56mm from the scar. This, together with the neuroma, persuaded Dr Owen that a nerve graft was indicated. He did not, however, recognise that it would be difficult to achieve a successful result.

30. A nerve graft operation was carried out by Dr Owen on 12 December 1991. The donor site was from the plaintiff's lower right leg.

31. In early 1992, the plaintiff enrolled in a further course. This course was for an Associate Diploma in Applied Science (Building Management). That would have enabled the plaintiff to undertake supervision of building work.

32. In May 1992, Dr Owen noted that 62mm return of function had been achieved. However, a neuroma had developed at the graft site and also at the operation site.

33. On review in August 1992, Dr Owen was optimistic that nerve regeneration would continue although he acknowledged that the neuromas were likely to grow and create further liability to sensitivity and pain.

34. In March 1993, Dr Owen found the neuroma had grown at the wrist site so as to be extremely tender. Wrist flexion caused considerable pain. The neuroma at the donor site was also extremely painful.

35. Dr Owen offered two options to the plaintiff. The first was to sever and cap the relevant nerves. That would remove all feeling in the thumb, index finger, middle finger, half ring finger and at the area of the donor site. The second was to attempt a further nerve graft operation at the wrist. Dr Owen felt that it was, by this time, less likely that a further neuroma would develop. The donor site for that operation was to be the plaintiff's left foot.

36. At that time the plaintiff did not choose either option. That decision was a result both of his concern as to whether there would be any real improvement and lack of means.

37. In April 1993, the plaintiff obtained a position with Baulderstone Hornibrook. Originally, this was to gain work experience as part of his course. That employer was engaged in large scale construction works. Their operations were large enough to accommodate an assistant who could not usefully engage in "hands on" work.

38. He did apply for other jobs in the construction industry but was unsuccessful. It was his perception that his right hand disability was a factor as well as his lack of practical experience.

39. I think the plaintiff's perception reflects his difficulty quite accurately.

40. In November 1993, the plaintiff became a trainee foreman. His earnings increased from $100.00 per week to $380-390.00 per week.

41. Due to down turns in the construction industry, the plaintiff's employment terminated on 8 June 1994. However, the plaintiff had retained his part-time employment at the service station and had increased his hours to 25 per week. He could do more but further hours were not available.

42. The plaintiff has not applied for other work since his employment with Baulderstone Hornibrook terminated. He is unsure now what career to pursue. He recognises that the building industry is insecure, particularly for him. He realises also that he will need some further qualifications.

43. Had he not been injured, it is the plaintiff's belief that he would have been a carpenter and would now have employment in some area involving carpentry skills. Further, he believes that had he been able to engage in "hands on" work in the building trades he could have completed the Advanced Building course. That would have given him employment options both in the building construction industry and as a carpenter generally.

44. I believe he could have successfully completed a carpentry apprenticeship and probably the Advanced Building course. I think the Civil Engineering course was probably beyond his academic capabilities. Similarly, I am satisfied that, for the same reason, the Business and Valuation course was not one it was likely he would have been able successfully to complete.

45. The disability is, therefore, a serious one which has dramatically and adversely affected the plaintiff's life at a crucial stage. For example, had he suffered this injury after qualifying as a carpenter and/or a builder, he would at least have been better qualified for more senior supervisory positions.

46. I now consider more particularly, the question of liability.

47. Two physical features combined to cause injury to the plaintiff. The first was the boot-scraper upon which he tripped. The second was the glass panel in the door against which he fell.

48. In answer to interrogatories, the defendant deposed that the glass panel in question was replaced with laminated safety glass.

49. Mr Ian Thompson, an architect, inspected the scene of the accident on 25 May 1992. It was his opinion that the metal brackets represented a tripping hazard unless the door which was nearest to them was latched to the bracket in an open position. He considered that replacement of the bracket inset into the pavement with a wall mounted catch mechanism would cost approximately $300.00 per pair of doors.

50. It was also a requirement of the Building Code of Australia that the door panels should be glazed with safety glass. Those requirements came into effect in September 1972. To have reglazed both doors and sidelights (although the latter would be for more abundant caution only) would have cost approximately $750.00.

51. Dr Neil Adams, a consultant in ergonomics and safety, inspected the site on 1 November 1993. He had been asked to assume the occurrence of the accident as deposed to by the plaintiff. He noted that a person approaching the doors, as the plaintiff was doing, might well fail to notice the boot-scraper/door stop bracket. If the plaintiff failed to notice the hazard represented by the bracket, a fall towards the closed door would lead to contact with the glass panel set in it. It was, in Dr Adams' opinion, quite likely that a person in the plaintiff's position, although he would have "known" the bracket was there, would fail to notice it.

52. For the defendant, a report was tendered from Clement Glancey and Associates, the original architects of the school. Mr Clement Glancey gave evidence in support of that report. The effect of Mr Glancey's evidence was that at the time the science block was erected in 1966, safety glass was not a requirement in glazed doors. He expressed the opinion that if the plaintiff turned the corner in the manner described by him,

"he was likely to catch his left foot under or knock against the

bracket, lurch forward at a flat angle to the glass panel in the

door and protect himself with his left hand as he would be moving

forward with his right foot as he lurched towards the opening".

53. It seems to me that Mr Glancey must have intended to refer to the right hand as if the left foot is retarded a person would be swung around so his or her right side would be falling towards the closed door. It would defy the laws of physics for the opposite process to occur. Dr Adams' evidence supports that view.

54. From this evidence, it seems to me beyond doubt that the bracket, if left exposed as this bracket was, represented a tripping hazard to a person approaching the doorway as the plaintiff was. It was reasonably foreseeable that such a person, although generally aware of the presence of the boot-scraper bracket, would fail consciously to look out for it, particularly if intent on some other objective. The fact that since 1966, there is no evidence of any person tripping over any of the brackets in question so as to suffer a reported injury does not, to my mind, render the brackets in question any less of a serious hazard. Indeed, given that it was reasonable for only one door to be open from time to time, it is surprising that the hazard was not obvious to whoever it was who specified the installation of the brackets in the position in which they were placed.

55. It was both practicable and relatively inexpensive to have removed the brackets and/or to have installed a system for latching the doors that did not constitute a tripping hazard. If shoe scraping was required, a separate arrangement could have been provided for that, either with appropriate mats or relocating of the brackets to a position where they did not represent a tripping hazard.

56. The defendant was, in my view, negligent in permitting the brackets to be constructed as they were and in failing to have them removed at any time in the 20 years between their construction and the plaintiff's fall.

57. The consequences of the plaintiff's fall were greatly exacerbated by the failure of the defendant to install safety glass. In my view, whatever may have been reasonable in 1966, once it became an Australian Standard for safety glass to be installed, it was negligent for the defendant not to ensure that relevant glass panels were replaced with safety glass as soon as practicable after it became, or should have become, aware of that safety standard. It is only necessary to conclude that such replacement, being both practicable and affordable, should have been attended to shortly after 1972 and well before the plaintiff's accident in 1987.

58. There was considerable evidence and argument directed towards whether the plaintiff was running or not at the time he struck the bracket with his foot.

59. As it is clear that even if he had been walking at normal pace the plaintiff would have been likely to have tripped and suffered some injury, the question as to whether the plaintiff was running or not, to my mind, is relevant only to the question of contributory negligence.

60. Given that the negligence of the defendant consisted of placing hazards on a pedestrian or potentially pedestrian surface, the fact that the plaintiff failed to notice the hazard is, by itself, insufficient to constitute contributory negligence. There was no warning or instruction to students not to approach the doorway from the direction and along the route which the plaintiff did. The only practicable instruction, in any event, would have been to keep the doors latched open whenever persons were likely to enter the science block from the yard. That would not be an attractive proposition during the winter months.

61. The defendant's case concentrated on establishing that the plaintiff was running and that such conduct was contrary to school rules. If he had not been running, it was suggested, the extent of his injuries would have been much less severe. He probably would not, then, it was submitted, have fallen into the glass.

62. The plaintiff conceded that he was not walking at a normal pace. He was moving at a pace between a walk and a run in order to catch up to a friend proceeding towards and up the stairs described previously. However, he denied that he was "running".

63. Mr Dino Jugovac, the friend whom the plaintiff was hurrying to catch up to, also gave evidence. He confirmed that when he heard the crash of glass caused by the plaintiff's fall, he was going up the stairs at the southern end of the cafeteria area. He recalled a school rule against running inside buildings but no specific rule prohibiting running in the yard. He did not recall where he was going to but, because he was going towards the science laboratories and classrooms, assumed he was going there.

64. Mr Jugovac denied a suggestion by counsel for the defendant that he had been chasing the plaintiff at the time of the fall. He further denied a suggestion that he had so informed Mr Richard Hall, his form master.

65. It had also been suggested to the plaintiff, in cross-examination, that he had told Mr Hall that Mr Jugovac had been chasing him when he tripped over the bracket. He conceded that he might well have initially told Mr Hall that he had been walking but, when challenged by Mr Hall in terms that he must have been going faster than that to break the glass panel, amended that description. He could not really recall precisely what he said.

66. Mr Hall gave evidence for the defendant. His recollection was that, following the plaintiff's return to school, he spoke to the plaintiff and Mr Jugovac. He said that, at first, the plaintiff told him he had been walking towards the doorway when he tripped over the bracket and fell against the glass panel which broke. As a result of hearing the plaintiff say that, Mr Hall said "I'd have put to him that walking wouldn't have generated enough momentum" to break the glass. I have to say that I am not entirely satisfied that Mr Hall's hypothesis was scientifically sound. Nevertheless, the plaintiff when further pressed in that manner said, according to Mr Hall, "Yes, he (sic) was running, he (sic) and Dino were running". Mr Hall drew the inference, he said, that there was some sort of chase being undertaken. He spoke to Mr Jugovac. It was his recollection that Mr Jugovac had agreed that he had been "involved" and that they were both running.

67. Mr Hall also deposed that students were habitually warned against running in corridors and the yard lest smaller boys or, indeed, other persons be knocked over.

68. In cross-examination, Mr Hall conceded that his recollection was of the understanding he had obtained as a result of what he was told, not of the words actually used. He did not recollect the words the plaintiff used to him. It may be noted that his recollection of the words used by Mr Jugovac, being hearsay, were not admissible save as to the credit of the latter.

69. Mr Hall further conceded that he could not be sure that Mr Jugovac had in fact said anything to the effect that he was chasing the plaintiff. It was not inconsistent with his recollection that Mr Jugovac was, indeed, ascending the stairs when the plaintiff fell against the door.

70. The matter that Mr Hall had focussed on was whether the plaintiff was walking or "running". I consider his recollection to be accurate in that respect. However, it is important to note that the description of the plaintiff's pace as "running" was elicited on Mr Hall's account by leading questions. It was not the plaintiff's choice of words.

71. Mr Hall wrote on the Accident Report to the defendant's insurer,

The student was running, contrary to school rules and thus

contributed to the accident.

72. To the details of the occurrence, Mr Hall added the words "was running from playground".

73. The question, therefore, is whether when the plaintiff agreed with Mr Hall that he had been "running" his pace was such as to constitute the pace which Mr Hall assumed that it did or the lesser pace to which the plaintiff deposed in his evidence.

74. Some assistance can be gleamed from the ergonomic experts. Mr Alex Tiplady, an industrial engineer, was called as a witness for the defendant. He agreed that whether the plaintiff was moving at a pace consistent with his evidence or faster, he would fall against the door with sufficient force to break the glass panel. He did not consider the fact that the plaintiff had time after tripping to raise his arm, as he plainly did, was inconsistent with the hypothesis that the plaintiff was running at a fast pace.

75. Dr Adams rejected that hypothesis. In his opinion, a sprint or run would have carried the plaintiff forward at about 18 kilometres per hour. A normal reaction time, he said was not less than 0.2 second. If the plaintiff had been travelling at 18kph or faster (Mr Tiplady assumed a run to have been 20kph) there would have been only 0.14 second between the trip and contact by the plaintiff's body with the glass panel.

76. Dr Adams' consideration of the question, it seems to me, was more detailed and, therefore, more likely to be accurate than the consideration given to it by Mr Tiplady. The latter had not, before giving evidence, considered the question of deducing the plaintiff's pace from the fact that he had been able to raise his right arm to break his fall.

77. In my opinion, Dr Adams' evidence is to be preferred. It follows that at the time he tripped, the plaintiff was more probably than not travelling at a pace considerably less than a run but more than a normal walk. That tends to corroborate the plaintiff's description of his movements prior to the accident.

78. Accordingly, even if it was contrary to school rules for the plaintiff to have approached the doorway in question at a run, the defendant has failed to establish that he did so.

79. I have to say, however, that I am not satisfied that it would have been contributorily negligent in any relevant sense had the plaintiff been travelling more quickly than he was. If the school rules had forbidden running because of the risk of tripping over obstacles such as these brackets, there could have been considered to have been a relevant warning, the disregard of which may, to some small extent, have contributed to the accident. However, the warning in question was based, according to Mr Hall, on consideration of the safety to others, not on the basis of risk to the runner although collision with another person might, of course, cause injury to the runner as well.

80. In any event, although running in corridors was clearly understood by the students to be forbidden, it does not appear, whatever was intended, that running in the yard was understood by them to be forbidden. It did not seem to be so understood by the plaintiff or Mr Jugovac. The school rules, as distributed to students, make no mention of running at all.

81. The teachers' handbook also suggests that running is not automatically forbidden. The relevant guide in 1981 provided,

Hand tennis is permitted on the blacktop area. No running widly

(sic), no kicking around tennis balls, no running in the basement

or yard.

82. The "blacktop area" seems to be a reference to the yard where hand tennis courts are shown as marked on the asphalt. A similar instruction was included in the 1988 edition of the Staff Handbook. It is reasonable to assume a similar instruction was in place during 1987.

83. Whether the area adjacent to the cafeteria entrances would be regarded by teachers or students as part of the "blacktop area" is not clear. Even if teachers had enforced the school policy quoted above it is unclear to me what it would have conveyed to them, let alone what the citation of it would have conveyed to students even if they had it quoted to them. It purports to forbid "wild" running and could well have been so understood by teachers.

84. It follows that the defendant has failed to make out a case to justify a finding of contributory negligence.

85. The plaintiff has suffered a serious injury. It has left him with an ongoing disability from which full recovery or even significant further recovery is, in my opinion, unlikely.

86. It was Mr Hall's assessment of the plaintiff that he was more suited to a trade career than to any academic course. I agree with that assessment. I consider that there are prospects for the plaintiff to be employed whether in the building industry or some related trade or business. However, he will be less able to do the kind of work he would like and will be more vulnerable to unemployment. It is likely that he will have some further operative treatment. I accept that it will probably result in some improvement in terms of comfort for the plaintiff but, as I have noted, I do not think that the function of the hand will be significantly restored.

88. For general damages, $30,000.00. The sum of $10,000.00 is attributed to the future. Interest on damages attributable to the past (7 years approximately) is allowed at $28,000.00.

89. Out-of-pocket expenses are agreed at $12,263.34 and I award that sum accordingly.

90. Future operative costs were estimated by Dr Owen at between $8,000.00 and $9,500.00. I award $8,750.00 accordingly. Loss of income following such treatment I will include in the calculation of an award for loss of future earnings.

91. Past wage losses associated with the plaintiff's part-time occupation as a console operator were calculated at $13,500.00. However, that calculation includes not only periods where the plaintiff could not work due to his injury and its treatment but also where curtailment of hours was due to his undertaking unsuccessful courses of study as well as conditions in the service station industry generally.

92. I accept that, to some extent, the courses of study were undertaken by way of a reasonable attempt by the plaintiff to minimise his losses. However, no more than 22 weeks was lost due to the direct effect of the injury. It is impossible to be precise about the loss in question, however, I consider $7,500.00 is a fair allowance.

93. For interest thereon, again, a precise calculation is not possible. I award $3,675.00.

94. There is a loss of income otherwise. I accept that the plaintiff would have become a carpenter but for the injury. That would, of course, have depressed the plaintiff's earnings as a service station console operator. I have, in discounting the plaintiff's losses in that area, already taken account of that factor.

95. I accept the calculations presented in that regard as representing a fair estimate of the plaintiff's loss of earnings up to the present. The figure is now slightly more than $25,000.00. I award that figure as a close estimate. Most of that loss is attributable to the period beginning January 1993. A fair allowance for interest is, therefore, $3,500.00.

96. Future wage loss is more difficult. The plaintiff has shown some interest in and capacity for a supervisory role in the building industry. However, opportunities are limited in that area. The plaintiff will, I am sure, develop alternatives.

97. His capacity is properly to be measured against that of a qualified carpenter, currently $500.00 net per week, approximately. He has a working life of approximately 40 years. The usual calculation of loss of capacity, if that loss had been complete, would have been approximately $520,000.00 (after the usual discounts). I consider the plaintiff has lost approximately one third of his future earning capacity. I award $170,000.00 accordingly. That seems to be a fair figure having regard also to the likely loss of earnings due to future operative treatment.

98. The total of the above items is summarised as follows,

General damages $30,000.00

Interest thereon $28,000.00

Out-of-pocket expenses $12,263.34

Future operative costs $8,750.00

Past wage loss $7,500.00

Interest thereon $3,675.00

Further wage loss $25,000.00

Interest thereon $3,500.00

Future wage loss $170,000.00

TOTAL $263,488.34

99. There will be judgment for the plaintiff in the sum of $263,488.34.00. I will hear the parties as to costs.

Enzo Cardone v Trustees of the Christian Brothers [1994] ACTSC 85

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Enzo Cardone v Trustees of the Christian Brothers [1994] ACTSC 85 (30 August 1994)

Parties