Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Loss of earning and earning capacity - In general - Loss of future superannuation contributions - Whether statutory discount rate applies. Common Law (Miscellaneous Actions) Act 1986, s4.

Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Loss of earning and earning capacity - In general - Wife giving up employment to care for plaintiff - Whether damages recoverable in respect thereof. Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523; Griffiths v Kerkemeyer [1977] HCA 45; (1976-1977) 139 CLR 161, considered. Common Law (Miscellaneous Actions) Act 1986, s5.

Negligence - Liability of master for injury to servant - Duty of care - Breach of duty - Foreseeability of risk of injury occurring - Risk remote but nevertheless real. Wyong Shire Council v Shirt (1979- [1980] HCA 12; 1980) 146 CLR 40, followed.

Negligence - Liability of master for injury to servant - Duty of care - Breach of duty - Response required to risk - No appropriate alternative means of carrying out duties of employment - Warnings - Extent to which required. Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40, followed.

Counsel for plaintiff: W T McMillan and A C Karpeles

Solicitors for plaintiff: McLean Phillips and Bartlett

ZEEMAN J The plaintiff's action is one by which he claims damages in respect of injuries suffered by him in the course of his employment on or about 14 October 1991. At the relevant time the plaintiff was a temporary employee of the Crown, employed pursuant to the Tasmanian State Service Act 1984, and the second defendant has been joined on that basis. The work in which the plaintiff was engaged was tree pruning at a Radiata pine plantation of the Forestry Commission ("the Commission") at Oldina, and it was joined as a defendant. The Commission, which was established by the Forestry Act 1920, s9B, ceased to exist by operation of the Forestry Amendment (Forestry Corporation) Act 1994 when that Act commenced on 1 July 1994. That Act also established the Forestry corporation. Pursuant to the power conferred by the Forestry Act, s6(3) that corporation has specified as its corporate name "Forestry Tasmania" (Tasmanian Government Gazette, 13 July 1994, page 598). The first defendant was substituted as a defendant in lieu of the Forestry Commission in reliance on the Forestry Legislation (Transitional Provisions) Act 1994, s15(1) whereby legal proceedings pending against the Commission at the time that it ceased to exist may be continued against the corporation.

2. It is common ground that the plaintiff was injured when he fell from a ladder upon which he was standing in the course of pruning a pine tree at the Commission's Radiata pine plantation at Oldina. It is appropriate to examine the nature of the operations carried out at that plantation with particular reference to the duties which the plaintiff was required to perform and the system of work in which he was engaged. The system of work substantially has been derived from that employed in pine plantations in New Zealand. More than one third of the world's productive Radiata pine plantation resource is situated in New Zealand and expert witnesses on both sides accepted that it is the world leader in this field.

3. After becoming established pine trees grow at a rate of between 1m and 1.5m each year during the early years of their growth. Branches grow in whorls, that is they grow in groups distributed radially around the trunk. Generally one or more whorls are produced in a year. Efficient timber production requires that pine trees are pruned at regular intervals. Pruning has the effect of minimising the defect core within the trunk of a tree so that the maximum amount of clear timber can be obtained. The object of pruning is to produce at the base of a tree a log which is some 6m long, consisting of wood which, apart from the defect core, is free of knots. Each pruning operation requires that there be removed from the tree all branches situated within a pre-determined height from the base of the tree. In order to keep the defect core to a minimum, it is essential that branches are cut flush to the trunk of the tree.

4. The first pruning occurs when a tree is about five or six years old and about 5m to 6m high and is done to a height of 2m or 2.1m. This pruning is done by a pruner standing on the ground using long handled secateurs or a saw. The second pruning is done one or two years later when the tree has grown to 7m to 8m. At that stage pruning is done to a height of 4m or 4.2m. The third pruning occurs when a tree is about eight years old, about 9m to 10m high and having a diameter of about 25cm at its base. At a third pruning a tree is pruned to a height of 6.4m.

5. In New Zealand various methods have been used to carry out second and third prunings. The heights involved in such prunings are such that they are not capable of being done by an operator standing on the ground using secateurs or a conventional saw. Until about 30 years ago the method used in New Zealand for carrying out second and third prunings was to use a pole saw, held by an operator standing on the ground. Such a saw consisted of a curved saw blade fixed to a wooden or aluminium pole of the appropriate length. Pole saws were found to be unsatisfactory for at least two reasons. It was difficult to use them on sloping ground and in plantations where there was substantial undergrowth. The distance between an operator and the limb to be cut meant that often it was not possible to position the saw blade correctly which resulted in cuts not being flush to the trunk and there being a resultant lack of quality in the timber produced.

6. From about 1965 tree pruning in New Zealand commenced to be done by pruners working from ladders. The ladders were of a conventional nature and were placed on the ground against the tree. In 1981 a type of ladder capable of being affixed to a tree, known as the Maac ladder, was invented in New Zealand. It was a Maac ladder on which the plaintiff had been standing when he fell. Some 5,000 ladders of this type have been produced and they are in use in forests in a number of countries, including Australia, New Zealand, the United Kingdom, Canada and Chile.

7. The Maac ladder is of lightweight aluminium construction. It is produced in various lengths for use in pruning carried out at various levels. The top, bottom and sides of the ladder together form a rectangle and within this rectangle there are a number of rungs. The third pruning ladder, with which this case is concerned, is 3.17m in length and has, within the rectangle, 7 rungs. Attached to the back of the ladder at its upper extremity is a toothed C hook. A pruner intending to fix a Maac ladder to a tree is required to hold it upright at some distance from the ground and place the C hook around one side and the back of the tree. By then pulling at the ladder the teeth of the C hook firmly grip into the trunk. Attached to the back of the ladder at its lower extremity is a protrusion, which is placed against the trunk so as to give some slope to the ladder, and a chain, which is tied around the trunk. Properly affixed, a Maac ladder is firmly attached to the trunk of a tree, with the lower extremity some distance from the ground.

8. At the time of a third pruning it may be expected that a tree will have no branches up to a height of 4m or so because all such branches will have been removed at the first and second prunings. Having regard to the distance between whorls, the lowest whorl to be removed at a third pruning is between 4m and 4.5m from the base of the tree. It is common ground that the plaintiff was required to affix the Maac ladder in such a way that its lowest extremity was some 1m or so from the ground. This would place the top of the ladder a little over 4m from the base of the tree and therefore pushing up against or very close to the lowest whorl. Although there was no express evidence about this, it must follow that upon commencing a third pruning of a tree a pruner must stand some rungs down from the top of the ladder. Upon the removal of the bottom whorl, or at least of that part of it which is immediately above the ladder, the operator is able to ascend the ladder further to continue pruning. The generally accepted practice, both in New Zealand and in the Commission's plantations, has been that pruners work from Maac ladders without the protection of any restraining device or fall-arresting device.

9. The plaintiff is aged almost 43 years, was born at Smithton and grew up in a nearby rural area. He is a person of quite limited education. He completed his schooling before he attained the age of 15 years to take up employment in a sawmill at Stanley. From then until about 1990 he remained in continual employment. Largely, but not exclusively, his working life until 1990 was spent in various sawmills. He also spent periods employed by the Hydro-Electric Commission on the dam construction site at Tullah and in a food processing plant. In 1990 the sawmill at which the plaintiff was then employed ceased operations and, for the first time since he had left school some 24 years earlier, the plaintiff was unemployed and in receipt of unemployment benefit. The Commonwealth Employment Service suggested to the plaintiff that he participate in a 4 week forestry industry workers' course conducted through the Skill Share programme of the Commonwealth Department of Employment, Education and Training. The plaintiff agreed to do so and successfully completed the course in November 1990.

10. Whilst the description of the course suggests that it concerned forestry work in general, in fact it was of a more specialised nature. It taught the plaintiff the skills required of workers in pine plantations, in particular tree pruning, but also planting, fertilising and spraying trees, weed control and tool maintenance. The evidence as to the precise methods of instruction adopted during the course was somewhat vague, but it seems that practical instruction was provided at various pine plantations owned by the Commission and private landowners. The principal instructor was one Ross Henderson who was an experienced Radiata pine forest operator. Mr Henderson was called as a witness and I refer to some of his evidence later. He came to Tasmania from Papua New Guinea in 1975 and acquired a farm at Wilmot where he established a Radiata pine plantation which now extends over some 80 acres. Mr Henderson's proficiency as a pine tree farmer has been recognised by the awards which have been made to him by the Australian Forestry Development Institute. He has been awarded the Tasmanian tree farmer of the year award and the Australian tree farmer of the year award. Some eight or more persons commenced the course but not all of them completed it. Mr Henderson described the plaintiff as "the pick of the bunch".

11. During the course the plaintiff was instructed in pruning Radiata pine trees with the use of a Maac ladder and saw. He was able to prune trees in this way without difficulty, and in particular did not experience any difficulty in maintaining his balance when working whilst standing on top of the ladder. The plaintiff is 1.52m tall so that when standing on top of the ladder used for a third pruning his head would have been 5.69m from the base of the tree, assuming the ladder to have been correctly affixed so as to be 1m from the ground. He was required to prune to 6.4m so that, assuming there to have been branches at levels of between 5.69m and 6.4m, some of the pruning required to be done by the plaintiff was to be done overhead whilst standing on top of the ladder.

12. I find that during the course of the instruction given by Mr Henderson the plaintiff was told by him that when pruning larger branches, being those which were at least between 45mm and 50mm or 2 inches thick, it was necessary to make an initial cut underneath such a branch before proceeding to cut it through from the top. I further find that Mr Henderson explained to the plaintiff that he was to adopt such a practice for two reasons. The first reason given was that a failure to undercut created the risk that the branch might fall away before it had been sawn through and that that might cause bark to strip away from the trunk, leading to disease in the tree. The second, although subsidiary, reason given was that the adoption of such a procedure would give the pruner more control of the branch, ie it minimises the risk that the branch may fall away unexpectedly and thereby create a hazardous situation.

13. I am also satisfied that Mr Henderson instructed the plaintiff that when cutting any overhead branch it first was to be cut off some 6-8 inches from the trunk and that when that had been done the remaining piece of the branch was to be cut flush to the trunk. The plaintiff was told that this procedure was to be adopted so as to ensure that the main part of the branch fell away clear of the pruner.

14. I am satisfied that by the time he completed the Skill Share course the plaintiff was aware that he was to undercut larger branches and that he was required to cut overhead branches some 6-8 inches from the trunk before cutting away the balance. I am also satisfied that by this time the plaintiff knew that, in part, the reason for observing those requirements was to substantially lessen the risk that a branch would fall on to his body and thereby create a dangerous situation.

15. After the conclusion of the course Mr Henderson arranged for casual employment as tree pruners for at least some of those who had completed it successfully, including the plaintiff. Initially it was arranged that the plaintiff would carry out pruning for 3-4 weeks at the property of one Lyle Smith and thereafter it was arranged that the plaintiff would do such work for a similar period for the Commission at Devonport. In the course of that employment the plaintiff obtained practical experience as a tree pruner and developed his skills as such.

16. In the course of giving his evidence-in-chief, the plaintiff said that whilst pruning at Mr Smith's property he wore a miner's type belt provided for him by one Ivan Chapman, another participant in the Skill Share course, who had shown him how to use it during that course. The belt was one which had an attachment which could be tied around the trunk of a tree. The plaintiff assented to the proposition that he had used such a belt during the whole of the time during which he was pruning at Mr Smith's property. Later the plaintiff contradicted himself when he said that he had used the belt for only half a day. Mr Henderson, who visited Mr Smith's property on a number of occasions whilst the plaintiff and Mr Chapman were employed there, said that he saw the latter using the belt fairly consistently but that he did not ever see the plaintiff using it. I accept that evidence. I do not accept the plaintiff's evidence that he used this belt on a regular basis. I do not accept that he used it beyond having tried it on one or more isolated occasions. The plaintiff exaggerated the extent to which he used this belt in order to support his case that the Commission ought to have supplied him with a belt for his use and that its failure to do so amounted to negligence.

17. Whilst the plaintiff carried out pruning at Mr Smith's property, which he did using a Maac ladder, Mr Smith also did some pruning personally. He did so using a pole saw. Mr Smith was an elderly man and may not have been able to climb ladders. The plaintiff said that Mr Smith did third pruning by use of a pole saw and was able to prune at a faster rate than that achieved by the plaintiff using the Maac ladder. Mr Henderson gave evidence of having observed Mr Smith carrying out pruning operations with the use of a pole saw and I accept that evidence. Mr Henderson said that Mr Smith was "embarrassingly good" when cutting smaller branches with a pole saw but that he came to "a grinding halt" when it came to bigger branches. Mr Smith used a pole saw with some measure of success only because he pruned branches which should have been removed at the second and third prunings in one operation, so that branches were being removed much earlier than was appropriate and were smaller than if they had been removed at the correct stage. To the extent that the plaintiff's evidence conflicted with that of Mr Henderson on this point I do not accept the plaintiff's evidence.

18. The plaintiff suggested that he had used a pole saw whilst employed by the Commission at Devonport but I am satisfied that he used a Maac ladder and hand saw at all times during the period of this employment. Whilst so employed the plaintiff was invited to attend at the Commission's Wynyard depot for an employment interview. The Commission had vacancies for a number of casual tree pruners in the Wynyard district and had asked Mr Henderson to make some recommendations as to persons who would be suitable for this work. One of the persons he recommended was the plaintiff. Subsequent to the interview the plaintiff was engaged as a tree pruner for a period of up to 12 weeks commencing on 8 April 1991. The period of employment was extended from time to time and the plaintiff was still so employed when he was injured.

19. On commencing his duties at the Commission's Wynyard depot, the plaintiff reported to one Chris Gray, a senior technical forester with the Commission, who had the immediate overall responsibility for the Commission's pine plantations within the Wynyard district. Mr Gray informed the plaintiff of the general nature of his duties, told him that when engaged in pruning he was expected to prune at least 80 trees per day and assigned him to a gang under the control of Basil Richardson. He did not give the plaintiff any instructions as to how he was to carry out his duties.

20. Shortly after commencing work, the plaintiff was introduced to one Peter Williams, a technical forester with the Commission who, at that time, was a supervisor having some responsibilities for the Commission's pine plantations in the Wynyard district, including the induction of new tree pruners. He said that he used a document known as the "Clearwood Manual" as the basis of what he told new pruners. Whilst that document was not produced in evidence, I have evidence that the pruning of pine trees takes place in plantation stands under what is called a "Clearwood Regime" and of what that entails. I infer from that evidence that the manual dealt with the way in which trees were to be pruned and the objectives sought to be achieved by such pruning. I have already summarised relevant aspects of this.

21. I am satisfied that Mr Williams instructed the plaintiff in the basics of what he was to do as a tree pruner although in general those instructions merely repeated what the plaintiff had already been taught by Mr Henderson. The plaintiff claimed that Mr Williams had not given him any instruction but I do not accept that evidence. Mr Williams did not purport to have given the plaintiff any warning as to risks to his personal safety if he failed to observe instructions as to undercutting larger branches or first cutting overhead branches some distance from the trunk and I do not find that he gave any such warning. His primary concern was to ensure that pruning was carried out in such a way that high quality clear timber would be produced and his instructions were given with that end in mind.

22. The plaintiff did not ever use a safety belt or other form of safety device whilst employed by the Commission and I am satisfied that no such device was available for his use. The plaintiff claimed that had he been offered a safety belt by the Commission he would have made use of it when pruning from a ladder. I do not accept that evidence. I am not satisfied that the plaintiff had any particular desire to use a belt. I accept that whilst the plaintiff was working in Mr Walker's gang there may have been some casual conversation between him and Mr Walker about a safety harness but I am not satisfied that the plaintiff had any desire to use one or that he asked to be supplied with a safety belt or harness. The plaintiff had been working for the Commission at Wynyard for some three months before being assigned to Mr Walker's gang and he did not suggest that he had had any such conversation with his previous leading hand, Mr Richardson.

23. On the morning of 14 October 1991 the plaintiff commenced third pruning at the Oldina plantation. Weather conditions were reasonable although the presence of dew on the ground made conditions somewhat slippery. Each of the members of the gang was to prune the trees in a particular row. Each had the use of a Maac ladder and a saw. The plaintiff completed the pruning of a number of trees. He then proceeded to a further tree. He affixed the ladder to it in the appropriate manner and then ascended it, carrying his saw. Whilst standing on top of the ladder he lost his footing and fell to the ground. His injuries were caused in that fall.

24. In re-examination the plaintiff suggested that he might have ascended to the top of the ladder immediately. It is unlikely that he could have done that because his path would have been blocked by the branches comprising the lowest of the whorls which he was required to prune. When that was pointed out to him he said that he was halfway up the ladder when he started pruning. I find that the plaintiff started pruning this tree whilst standing on a rung several rungs below the top of the ladder. I further find that the first branch which the plaintiff cut was a branch directly overhead and that, contrary to what he said, he had not reached the top of the ladder when he cut that branch.

25. The plaintiff said that he cut that first branch some 6-8 inches from the trunk and thereafter cut the balance of it flush to the trunk of the tree. I accept that evidence which confirms the plaintiff's familiarity with the requirement that he cut overhead branches in this way. The plaintiff said that he then worked his way around, cutting other branches whilst standing on top of the ladder. He said that in accordance with his usual practice he held on to the trunk of the tree with his left hand and held the saw in his right hand. He said that having completed cutting the branches to his right he then gave attention to the branches on his left, holding the trunk of the tree with his right hand and sawing with the use of his left hand when he heard a loud crack. I observe that when on 17 August 1994 he was interviewed by Mr Dohrmann, an engineer called by the plaintiff to give expert advice in the areas of engineering and ergonomics, the plaintiff told him that he was using his right hand when he heard the loud crack.

26. I do not accept the thrust of the plaintiff's evidence, namely that he was cutting a branch away to the side of him when he heard the crack. I consider that largely the plaintiff reconstructed the events which occurred immediately before his fall. I note that although he had said in examination-in-chief that he had been cutting branches to the side when he heard the cracking sound, in cross-examination the plaintiff conceded that he could not be certain that he had not been cutting an overhead branch at that time. Ultimately he said that he really did not know one way or another.

27. The location of the branch being cut by the plaintiff was the subject of evidence from a number of witnesses. I find that the branch being cut by the plaintiff was situated in a position on the trunk in the highest of the whorls required to be removed by him, as the same is marked in the photograph marked as exhibit D4A, which I find depicts the tree which was being pruned by the plaintiff when he fell. I accept the evidence of Mr Gray that a piece of branch, which is exhibit D2, was matched as having come from the position marked on the photograph. I find that this piece came from the branch which the plaintiff identified as being the "offending branch" to Mr Walker. An examination of D2 establishes to my satisfaction that it is about 50mm in diameter and that the relevant end of it was partially sawn through but not undercut and that it then snapped. I find that whilst cutting that branch the plaintiff was standing on top of the Maac ladder which was then attached to the tree in the approximate position shown in the photograph so that the branch was directly above the head of the plaintiff. I accept that he heard a loud crack but find that it was caused by the snapping of the overhead branch which he was then cutting.

28. Accordingly I find that at the time the plaintiff heard the cracking sound:

1 plaintiff was cutting a branch which was directly overhead;

2 It was a branch of such a diameter that he should have

undercut it first;

3 He did not undercut it;

4 The location of the branch was such that he should have

first cut it away some distance from the trunk;

5 He did not make any cut some distance from the trunk but

was cutting the branch flush to the trunk; and

6 The crack was produced by the branch breaking away before

it had been cut through.

29. I further find that the plaintiff did not expect the branch to break away when it did, that it came into contact with his shoulder and that by reason thereof the plaintiff lost his footing on the ladder and fell to the ground.

30. The plaintiff's case against both defendants is brought in negligence and in addition, as against the first defendant, for breach of statutory duty, and, as against the second defendant, in contract. The first defendant's liability is alleged to arise out of the breach by it of the duty of care which the Commission owed the plaintiff as the occupier of the pine plantation and the second defendant's liability is alleged to arise out of the relationship of employer and employee. Leaving aside the alleged breaches of statutory duty, I do not consider that it is appropriate to differentiate between the defendants as to the nature of the duty of care which each owed the plaintiff. Each had the necessary relationship with him giving rise to a duty of care. Where the Crown employs persons whose services are made available for the purposes of a statutory instrumentality then the content of the duty of care is identical as to each. In particular where the Crown makes available its employees to carry out work at the premises of another it does not thereby avoid any part of the duty which an employer owes to its employees (see eg Bailey v DP Kirk Pty Ltd (1990) 102 FLR 77). It is appropriate to consider whether there was a failure to observe the common law duty of care as if the Crown and the Commission had been the joint employers of the plaintiff. The nature of the breaches of agreement pleaded is such that the cause of action in contract does not require separate consideration.

31. The amended statement of claim asserted that the defendants should not have required or permitted the plaintiff to prune trees without the aid of mechanical aids. That allegation was abandoned by counsel for the plaintiff during the course of his closing address. The allegations of negligence made against the defendants appearing in the amended statement of claim which were maintained, as they were elaborated in argument, may be summarised as follows:

1 The plaintiff ought to have been, but was not, provided

with a pole saw to carry out tree pruning.

2 The plaintiff ought to have been, but was not, provided

with some form of safety belt, safety harness, safety rope or

other suitable restraining device.

3 The plaintiff was not given sufficient instruction or

warning as to the risks to which he was exposed in the course

of tree pruning.

32. The following breaches of statutory duty are alleged to have been committed by the Commission:

1 A failure to take reasonable precautions to ensure the

health and safety of the plaintiff as required by the

Industrial Safety Health and Welfare Act 1977, s32.

2 A failure to ensure that the Maac ladder was maintained in

a condition so as not to constitute a risk to the safety or

health of the plaintiff as required by the Industrial Safety

(Administration and General) Regulations 1979, reg201.

3 A failure to cause all working methods in the work place to

be carried on so as not to constitute a risk to the safety of

the plaintiff as required by the Industrial Safety

(Administration and General) Regulations, reg201.

4 A failure to take all practicable steps to ensure that the

tree pruning in which the plaintiff was engaged did not

endanger his safety as required by the Industrial Safety

Health and Welfare (Forest Industries) Regulations 1990,

reg11.

33. As to negligence, it being beyond question that the relationship between the plaintiff and each of the Commission and the Crown was such that each owed a duty of care to him to take proper care for his safety, the test to be applied is that expressed by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 at 47:

"In deciding whether there has been a breach of the duty of

care the tribunal of fact must first ask itself whether a

reasonable man in the defendant's position would have

foreseen that his conduct involved a risk of injury to the

plaintiff or to a class of persons including the plaintiff.

If the answer be in the affirmative, it is then for the

tribunal of fact to determine what a reasonable man would do

by way of response to the risk. The perception of the

reasonable man's response calls for a consideration of the

magnitude of the risk and the degree of the probability of

its occurrence, along with the expense, difficulty and

inconvenience of taking alleviating action and any other

conflicting responsibilities which the defendant may have.

It is only when these matters are balanced out that the

tribunal of fact can confidently assert what is the standard

of response to be ascribed to the reasonable man placed in

the defendant's position."

34. The defendants submitted that the risk of a tree pruner falling from a Maac ladder was so remote that it was not a risk to which the defendants were required to respond. I do not accept that submission. It is obvious that a person cutting limbs from a tree whilst standing without any form of restraint on top of a ladder affixed to the trunk of a tree is at risk of falling. I accept that experience indicates that the risk is a slight risk but nevertheless it is a real risk. A person in that position may lose his footing and fall for a variety of reasons. I observe that Mr Derek Viner, a consultant risk engineer called by the defendants, thought that the possibility of a fall from a ladder occurring and causing an injury of the severity of that suffered by the plaintiff is obvious. I agree. There is evidence that pruners are injured from time to time in New Zealand by reason of having fallen from ladders.

35. The evidence establishes that the Commission was aware of the risk because there had been previous incidents in which pruners engaged in its plantations had fallen from ladders. Not all of those falls may have been from Maac ladders but that is not relevant because the risk of falling from a Maac ladder appears to be no different than the risk of falling from a conventional ladder, except in relation to falls occasioned by the dislodgment of the ladder. I find that pruners employed by the Commission fell from ladders on the following occasions, each of which falls was reported to the Commission:

1 In about 1985 one Kelvin Youd fell from a ladder in

undisclosed circumstances.

2 On 21 December 1987 Mr Youd fell from a ladder when his

hand slipped from around a tree trunk and he lost his

balance. He was injured.

3 On 10 July 1990 an unidentified pruner fell from the top of

a ladder in undisclosed circumstances.

36. There was evidence that other tree pruners employed by the Commission, namely Trevor Connelly, Geoffrey Walker and Billy Walker had been injured when they had fallen from pruning ladders. However I do not consider any of those falls to be relevant because they occurred for quite different reasons. Mr Connolly was injured when he slipped from the rung closest to the ground as he was descending. The other persons fell because the ladder became dislodged from the tree.

37. The plaintiff submitted that the defendants ought to have provided him with a pole saw to carry out third pruning rather than require him to work from a ladder. In essence the argument of the plaintiff was that the risk of tree pruners falling from ladders and suffering injury was so significant that the use of ladders was an inappropriate system of work and that in lieu thereof the Commission should have had in place a system of work whereby trees could be pruned by the use of devices which enabled pruners to remain standing on the ground.

38. During the Skill Share course Mr Henderson demonstrated the use of a pole saw. However he was quite unenthusiastic about it as an appropriate tool to carry out third pruning. The only female participant in the course was a person who was frightened of heights. Throughout the course she pruned with the use of a pole saw. Mr Henderson's understanding was that she did not pursue a career as a tree pruner and he found that she was much slower than those who used ladders. I have already mentioned the problems which Mr Henderson observed were encountered by Mr Smith when he used a pole saw. The plaintiff said that the female pruner used a pole saw without difficulty but in cross-examination agreed that she was able to prune at little faster than half the rate achieved by the other participants in the course.

39. I am not satisfied that the provision of a system of work whereby third pruning of trees was done by way of pole saws would have been an appropriate response to the relevant risk. I am not satisfied that third pruning could have been carried out either properly or efficiently by use of pole saws. In addition there are other reasons why the provision and use of such a device ought not to be regarded as an appropriate response to the risk of injury by reason of tree pruners falling from ladders. Those reasons concern the safety of those devices. A response to a risk of injury which itself creates a different risk of injury is not a response which ought to be expected from a reasonable employer, unless the risk created by the response is a lesser risk than that being responded to.

40. The use of a pole saw to cut branches at the appropriate heights requires that pruners work in awkward situations, with an attendant risk of injury to the neck. Pole saws are used in pine plantations in South Australia. Pine trees in that state are not pruned to the height that they are in Tasmania so that the levels at which the pruning is carried out are closer to the ground. Nevertheless, in South Australia injuries have been suffered by tree pruners as a result of hyperextension of the neck in carrying out the operations. I did not find Mr Dohrmann's solution to this problem, not to require employees to carry out this work for extended periods of time, to be at all practicable. It might be thought that if tree pruners were to use pole saws on a regular basis, cutting branches at a greater height than in South Australia, then neck injuries would be commonplace. In any event I cannot conclude that the risk of injury of that type would be any less than the risk of injury as the result of a fall from a ladder. I observe that when the Commission used pole saws for third pruning on an experimental basis over some four days in late 1983 the operators complained of stiffness and pain in the neck and shoulders.

41. There are other obvious risks of injury if third pruning is carried out by use of a pole saw. Such pruning requires that all branches situated at heights of between 4m and 6.4m be cut away. If that is done by a pruner standing on the ground there is a risk of injury to that pruner from falling branches. When the Commission experimented with the use of pole saws, operators expressed concern about falling limbs. As the use of a pole saw requires a pruner to direct his attention to what he is doing overhead there is a risk that his attention will be diverted from any unevenness of the ground or from objects on the ground. That would produce a risk of injury. I am not able to conclude that the risks of injury in the course of using a pole saw are any less than the risk of injury by reason of a fall from a ladder.

42. Alternatively the plaintiff submitted that he ought to have been provided with some type of safety equipment in the nature of a linesman's belt, a fall restraint or a controlled descent device. It is necessary to deal with each of these in turn. One preliminary observation may be made about a linesman's belt. The plaintiff conceded that had he been wearing such a belt at the time that he was cutting the relevant branch it would not have prevented his fall because the nature of such a belt is that the wearer leans back in it whilst working, whereas the location of the branch being cut by the plaintiff was such that it would not have been possible for him to lean back in a belt whilst cutting it. For that reason the question as to whether the plaintiff ought to have been provided with such a belt may be thought to be of academic interest only. Nevertheless I will give it further consideration.

43. Whilst carrying out pruning Mr Henderson generally wore a linesman's belt which he had acquired from the Hydro-Electric Commission. He found that by leaning back in it whilst standing on the top of a ladder he was provided with a stable working platform which enabled him to use both hands to hold his saw. His explanation for using it did not relate to matters of safety. He said that he had put on weight as he had got older and found that using the saw with one hand tended to tire him. In cross-examination Mr Henderson expressed some reservations about using a belt and said that he thought that there were some dangers in using it.

44. Evidence was given by one Geoffrey Gilbert who was employed by the Hydro-Electric Commission from 1958 until 1993. Initially Mr Gilbert was employed as a linesman. He then progressed through other positions as a trainer of linesmen, a supervisor of linesmen and a safety officer, ultimately holding the position of Senior Safety Co-ordinator. He has had substantial experience in all matters concerning the safety of linesmen as well as having carried out the duties of a linesman for some ten years. Whilst I generally accept his evidence, I consider it to be of little assistance to me. It assists me in understanding the nature of the safety devices which are available commercially but, as to their application, it is important to bear in mind that Mr Gilbert primarily was experienced with persons who work on electricity poles which have quite different physical characteristics from trees and who perform duties which normally require the use of both hands and that they remain at or near the top of one pole for an extended period of time.

45. Mr Gilbert did not purport to be able to express an opinion as to whether the use of a linesman's belt would provide appropriate protection for the safety of a tree pruner working from the top of a ladder. Such opinions were expressed by two witnesses having relevant expert knowledge, Mr Viner and Mr Dohrmann, and I turn to their evidence.

46. I make one general observation as to the weight I ought to give to the opinions expressed by those gentlemen. Each was well qualified in the field of industrial safety and I am quite satisfied that each honestly held the opinions expressed by him. However where there were differences of opinion I prefer the evidence of Mr Viner. To some extent Mr Dohrmann indulged in unconscious partisanship in favour of the plaintiff, by whom he had been retained. In cross-examination he acknowledged that some of the opinions initially expressed by him were untenable. This led him to suggest other steps which the Commission might have adopted to ensure the safety of the plaintiff, without having given sufficient consideration thereto. When difficulties with his alternative suggestions were pointed out to him he tended to deal with them by saying that the difficulties ought to be capable of being overcome, without being able to suggest a way in which they might be overcome. On the other hand I found Mr Viner to be a calm and dispassionate witness who performed the true role of an expert witness almost to perfection. I found his opinions to be logical and persuasive.

47. Mr Viner did not consider that it was appropriate for a pruner carrying out third pruning from a Maac ladder to use a linesman's belt. He described its purpose as being to enable the user of it to lean back in it whilst working so that a gap of about 300mm exists between the body and the structure to which it is attached and thereby create a stable working platform. He did not consider that it was intended to operate so as to arrest a fall. Mr Viner considered there to be a significant risk in using such a belt for tree pruning. That risk arises from the possibility that a pruner may omit to clip the lanyard correctly and then lean back and fall because the belt has not been secured around the tree. Mr Viner considered such a risk to be significant in a routine task such as pruning, where the lanyard would need to unclipped and clipped at least 80 times during the course of a normal working day. A linesman is required to carry out that operation far less frequently during the course of a working day, yet there have been occasions when linesmen have fallen from poles by reason of the lanyard not having been clipped on correctly or a failure in its mechanism. Mr Gilbert gave evidence of an improved form of design which would make it far less likely that a lanyard would not be clipped on properly but I do not know whether that was available in 1991 and its existence was not put to Mr Viner. In any event the risk of incorrect application or failure still exists.

48. In his report, which he adopted in evidence, Mr Dohrmann rejected Mr Viner's views as to the appropriateness of a linesman's belt for use by tree pruners. He expressed the view that it was "the obvious measure open to this employer". In cross-examination Mr Dohrmann did not maintain that view. He agreed that it was likely that the use of a linesman's belt would probably create more problems than it would solve. In the result neither expert saw the use of a linesman's belt as an appropriate response to the risk because of the risk of injury which would be created by its use. I adopt that view. Whilst the use of a linesman's belt may avert a fall in certain circumstances it is unlikely that its use would have averted the plaintiff's fall. The use of such a belt creates its own risk of injury and I am unable to conclude that such risk is less significant than that resulting from a pruner working from the top of the ladder without any form of protection.

49. Mr Viner and Mr Dohrmann each gave substantial consideration to whether the provision of a fall restraint or controlled descent device was appropriate for tree pruners working from ladders. There exist various devices to arrest a fall, using an inertia reel principle, or to allow a controlled rate of descent. Any such device must be attached to a secure anchor point. The only possible anchor points available to a tree pruner are the branches above the pruner, the trunk of the tree and the ladder.

50. Both expert witnesses rejected overhead branches as a feasible anchor point. I accept that opinion. Such branches tend to be small and it may be doubted whether they would be capable of arresting the fall of a man of normal weight. It would be extremely difficult to attach such a device to overhead branches which would be in a whorl situated above the 6.4m level. Both expert witnesses appeared to be agreed that the trunk of the tree was not an appropriate anchor point. Mr Viner described it as being the only possible practicable option but did not recommend it. I accept his evidence that an appropriate form of fall arrest device which is capable of being anchored to the trunk of a tree has yet to be designed. For reasons which I express in dealing with the third possible anchor point I do not consider that it was incumbent upon the defendants to develop such a device.

51. Mr Dohrmann expressed the view that the ladder could provide an appropriate anchor point. Mr Viner expressed the contrary view. He pointed out that in the case of a pruner standing on top of a ladder the anchor point would be at about the same level as his feet. In the event of a fall, the fall would be uncontrolled for a distance of twice the height of the pruner. The result would be that the body of the pruner would fall at a speed in excess of 6m per second and then would need to be brought to a halt within 2m. He said this would result in considerable force being applied to the abdomen and spine and that injury might well ensue.

52. Mr Dohrmann accepted the validity of these views and acknowledged that an appropriate anchor point would need to be at least at the waist level of the pruner standing on top of the ladder. He proposed a solution to the difficulties raised by Mr Viner in the form of a demountable or telescoping extension to one side of the ladder with a movable anchor point along a channel within that side of the ladder, including the extension.

53. A number of practical difficulties standing in the way of providing any form of extension to the ladder were put to Mr Dohrmann. He had not given adequate consideration to the impediments which stand in the way of the adoption of the solution proposed by him. Whilst he protested that he had had no opportunity of properly considering the design modifications required to provide an extension and channel, he did provide a report to the plaintiff's solicitors on 31 August 1994 in which he specifically directed his mind to the question as to what safety precautions the defendant might have taken and in which he adverted to the possibility of an attachment to the ladder for this purpose. I formed the impression that Mr Dohrmann finally espoused the attachment to the ladder as his preferred option because he had had to concede in cross-examination that the other solutions which he had proposed in his report were not viable.

54. It may well be that the Maac ladder is capable of being improved upon from the point of view of incorporating in it some form of fall arrest mechanism. However it is not obvious as to how this may be done. It may be that that which Mr Dohrmann thought to be capable of being developed ultimately will be developed as a viable piece of equipment. It would however be naive to think that it will be possible to do this without a considerable amount of research and development. No witness suggested that even now such a piece of equipment has become available on the market. Mr Viner said that given time it would be surprising if the Maac ladder could not be improved upon from the point of view of fall arrest but he was unable to say as to what the final design might look like or as to how acceptable it might be to individuals using it. He did not consider that the courtroom was the right environment to "try to brainstorm design possibilities". I agree. Mr Dohrmann referred to several abstracts of articles in overseas technical journals which did no more than admit to the possibility that the articles might refer to such a piece of equipment. The articles were not produced and in their absence I am not prepared to assume that they in fact do point to the existence of such equipment.

55. The extent of the risk against which the defendants were required to guard the plaintiff was relatively slight and I do not consider that it was required of them that they carry out extensive research and development with a view to developing a ladder which incorporated an anti-fall device which was safe in its operation. It may be assumed that the cost of such an exercise would be very substantial. A solution of the type suggested without proper research and development would have created the risk of other dangers being created.

56. I have concluded that the provision of any of the types of equipment contended for by the plaintiff as being appropriate has not been made out as being an appropriate response to the risk of pruners falling from Maac ladders. All of the suggested responses either have the potential to create other risks of injury or require the investment of substantial, although unspecified, financial resources for an uncertain outcome. It cannot be said that by providing available equipment the defendants could have eliminated or reduced the risk that pruners might fall from Maac ladders and thereby suffer injury, at least not without creating some commensurate risk of other injury. The position may be contrasted with that recently considered by the Full Court in Smith v Retirement Benefits Fund Investment Trust A67/1994.

57. The final allegation of common law negligence made against the defendants is that they failed to warn the plaintiff of the relevant risk, namely that an overhead branch being cut might fall and strike him and thereby cause him to lose his footing and fall from the ladder. It is undoubted that such a risk existed and that the larger the branch the more substantial would be the risk that being struck thereby would result in a pruner losing his footing.

58. The plaintiff was well aware that he was to undercut branches of the size of the relevant branch and that he was to cut overhead branches, and the relevant branch was overhead, some distance away from the trunk before cutting away the balance. The plaintiff did neither of those things. He commenced to cut the overhead branch flush with the trunk without first having undercut it. As a result it broke and came down on his shoulder unexpectedly. Had he first undercut the branch, it might be expected that it would have fallen away cleanly and at a time when the plaintiff was expecting it to fall, therefore lessening the chance that, even if it had come into contact with his body, it would have caused him to lose his balance. Had the plaintiff first cut the branch at a point some distance from the trunk it is likely it would have fallen behind the plaintiff rather than on him. The plaintiff was injured because he failed to observe the instructions which he had been given during his training and again by Mr Williams. Whilst I have not found that Mr Williams explained to the plaintiff the dangers to his personal safety which might be created by a failure to comply with his instructions, those dangers were already known to the plaintiff by reason of what he had been told by Mr Henderson.

59. I have concluded that the defendants did not fail to give a warning which they ought to have given. The plaintiff had been fully instructed. The dangers inherent in failing to observe the instructions which he had been given had been made clear to him during his training. In any event the risk created by falling branches must have been obvious to him. The very nature of the duties being performed by the plaintiff was that he was to cut branches which were overhead and which then would fall to the ground. He had performed that task many thousands of times. He was experienced in the work of a tree pruner. Proceeding to cut the branch, in the way in which the plaintiff did so, created the risk that it would fall down on him before it had been completely sawn through.

60. Whilst a person who owes a duty of care to another is required to take into account the possibility that the other person may fail to take proper care of his own safety (McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311-312) the relevance of that possibility is to be judged by the circumstances of the case. The plaintiff was experienced in the work he was doing. He had been instructed not to do what he did and had been told that a failure to follow the instructions would create a particular danger to his personal safety. His experience must have made it obvious to him that if he failed to comply with the instructions, that branches might come into contact with his body and might do so unexpectedly. In those circumstances it is fanciful to suggest that the defendants should have gone beyond instructing him in how to carry on his pruning work and expressly warn him against the risks to his personal safety if he were to disobey those instructions.

61. As I have found that none of the allegations of common law negligence have been made out it follows that the breach of the Industrial Safety (Health and Welfare) Act 1977, s32 has not been made out. The particulars of the breach of that section did not allege any act or omission on the part of the Crown extending beyond the allegations said to constitute negligence. I agree with the view expressed by Cox J in Munns v Secretary for Labour A77/1989 at 6 that the section "reimposes in statutory form the employer's common law duty of care".

62. The plaintiff relies on the Industrial Safety, Health and Welfare (Administrative and General) Regulations 1979, reg201 which provides as follows:

"201 Without prejudice to the application of any other

provision of these regulations, the occupier of any work

place shall cause

(a) all parts of the work place, including passageways and

gangways, in which employees are engaged or to which they

have access; and

(b) all machinery, plant, equipment, and fittings within the

work place,

to be maintained in such a condition as does not constitute a

risk to the safety or health of the workmen employed therein,

and shall cause the working methods and processes carried on

in the work place to be so carried on as to not constitute a

risk to the safety or health of the workmen therein."

63. A statutory requirement cast in the terms of reg201 imposes a duty which extends beyond the common law duty of an employer to take proper care for the safety of its employees and requires that the occupier of the workplace guarantees, secures or makes certain that no relevant risk to the safety or health of employees exists (Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467; Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428). The regulation may be contrasted with provisions which qualify the duty of the employer by requiring him to do only that which is reasonably practicable or the like, such as was the case with the statutory provisions considered in Kingshott v Goodyear Tyre and Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 and Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100.

64. Counsel for the defendants submitted that the regulation is ultra vires. If that submission is to be accepted then the plaintiff is unable to rely on it. That submission proceeded from the premise that reg201 imposes absolute obligations. I accept that that is a correct premise. The regulation purports to require an occupier of a work place to do particular things so that certain things and places do not constitute any risk of injury to a person employed at the work place. It is concerned with all risks no matter how remote and no matter whether it is possible for the employer to eliminate those risks, whether by taking reasonable steps or otherwise. It imposes an obligation which might be thought to be nigh on impossible of discharge in its entirety. Whilst impossibility of performance might constitute a defence on a prosecution for breach of the regulation (Narrandera Pastures Protection Board v Coote (1961) 78 WN (NSW) 697 at 699) it is not difficult to conceive of steps that the occupier of a work place might be able to take to reduce the risk of injury, but which are steps which would be entirely unreasonable and wholly disproportionate to the magnitude and nature of the risk.

65. Counsel for the defendants submitted that reg201, if valid, in reality makes it impossible for a person to carry on the operations of any work place without offending its provisions because economic reality does not admit to the elimination of all possible risks to the safety or health of employees. He submitted that the regulation was oppressive and therefore invalid, relying on Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88 and Duyvelshaff v Cathcart and Ritchie Ltd (1973) 1 ALR 125. I do not find the latter case to be of any assistance. In the former case Williams J said, at 99:

"A by-law ... must not be unreasonable in the sense that it

must not involve such oppressive or gratuitous interference

with the rights of those who are subject to it as could find

no justification in the minds of reasonable men ... Such an

interference would be an abuse of power and therefore not

within it."

66. The appropriate test is to be found in more recent authority. In South Australia v Tanner [1989] HCA 3; (1988-1989) 166 CLR 161 at 165 the majority of the members of the High Court were content to accept the reasonable proportionality test of the validity of a regulation, namely "whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose". That test was expressed by Deane J in Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 260 as follows:

"Implicit in the requirement that a law be capable of being

reasonably considered to be appropriate and adapted to

achieving what is said to provide it with the character of a

law with respect to external affairs is a need for there to

be a reasonable proportionality between the designated

purpose or object and the means which the law embodies for

achieving or procuring it. Thus, to take an extravagant

example, a law requiring that all sheep in Australia be

slaughtered would not be sustainable as a law with respect to

external affairs merely because Australia was a party to some

international convention which required the taking of steps

to safeguard against the spread of some obscure sheep disease

which had been detected in sheep in a foreign country and

which had not reached these shores. The absence of any

reasonable proportionality between the law and the purpose of

discharging the obligation under the convention would

preclude characterization as a law with respect to external

affairs notwithstanding that Tweedledee might,

'contrariwise', perceive logic in the proposition that the

most effective way of preventing the spread of any disease

among sheep would be the elimination of all sheep. The law

must be seen, with 'reasonable clearness', upon consideration

of its operation, to be 'really, and not fancifully,

colourably, or ostensibly, referable' to and explicable by

the purpose or object which is said to provide its character

..."

67. Whilst his Honour was concerned with the constitutional validity of a statute of the Commonwealth, the same underlying principle is to be applied when the question of the validity of subordinate legislation arises. It is a test which enables questions of reasonableness and oppressiveness to be given proper weight and consideration. The effect of reg201 is to impose absolute liability upon the occupier of a work place insofar as risks to the safety or welfare of a worker are concerned, being a liability which exists even as to risks not capable of being eliminated by the taking of reasonable steps, or indeed the taking of any steps other than not carrying on any operations at the work place. Had Parliament imposed such liability then the courts would be required to give effect to it, subject to the availability of a defence of impossibility. Parliament has not done so but the regulation making authority has purported to do so.

68. The long title to the Industrial Safety, Health, and Welfare Act states, inter alia, that it is an Act "to provide for the safety, health, and welfare of persons employed, engaged in, or affected by industry". That that is the purpose of the Act is obvious from its provisions. It may be assumed that the Act is concerned with work places which are in operation and that Parliament intended they continue to operate. A regulation which has the effect that a work place either ceases to operate or operates in breach of the regulation is wholly disproportionate to what is required to give effect to the purposes of the Act. It does not satisfy the proportionality test. The Act does not specifically authorise the making of such a regulation. Regulation 201 imposes absolute obligations which are so onerous that the occupier of a workplace could never ensure that he discharges those obligations in all respects. It imposes obligations which may only be capable of being discharged by incurring expenditure or taking steps out of all reasonable proportion to the risks sought to be guarded against. It does not satisfy the proportionality test. Therefore it is ultra vires the Act and void.

69. The plaintiff relies on an alleged breach of the Industrial Safety, Health, and Welfare (Forest Industries) Regulations 1990, reg 11(1)(a) which requires that a person engaged in a felling operation "take all practicable steps to ensure that the operation does not endanger the safety of any person". It may be doubted whether what the plaintiff was doing amounted to "felling" within the expanded definition of that word contained in reg3(1). It also may be doubted whether reg11(1)(a) is concerned with the duty of an employer to an employee carrying out tree felling in the course of his employment. I need not come to any conclusions about those matters because if reg11(1)(a) imposed an obligation upon the Crown in relation to the safety of the plaintiff, that obligation was to "take all practicable steps". The imposition of that obligation merely re-stated the Crown's common law duty of care to the plaintiff.

70. It follows that the plaintiff's action must fail. The allegations of contributory negligence do not require consideration. In accordance with the usual practice I will proceed to assess the damages to which the plaintiff would have been entitled had his action succeeded.

71. On falling from the ladder the plaintiff landed on his feet and almost immediately was conscious of pain in the right ankle. He was taken from the accident scene to the Wynyard Medical Centre where he was seen by a medical practitioner, who administered a pain killing injection. The plaintiff was then taken to the North West General Hospital at Burnie. Whilst waiting to be seen by a doctor he became conscious of pain in the left knee. Some attention was given to the ankle and the plaintiff was sent home, his complaints about pain in the knee having been ignored. Thereafter the plaintiff attended at the hospital from time to time. The pain in the knee and ankle gradually worsened. I do not know what medical attention he received on his visits to the hospital over the period of a month or so after his accident. For some reason which was not revealed the hospital records were not tendered.

72. Eventually the plaintiff was referred to an orthopaedic surgeon, Mr Cheng who first saw him on 13 November 1991. Mr Cheng performed an arthroscopy. That revealed a ruptured posterior horn of the medial meniscus, which was resected, and a complete rupture of the anterior cruciate ligament of the left knee. He was treated conservatively for the ruptured ligament. This treatment did not alleviate the pain which troubled the plaintiff to the extent that on one occasion he contemplated committing suicide. As time went on the pain in the knee worsened. The plaintiff frequently lost his balance. By 7 September 1992 the plaintiff was no longer suffering from any significant discomfort in the ankle, but his knee remained a major source of pain. On that day Mr Cheng performed a reconstruction of the anterior cruciate ligament which involved the insertion of screws. For some time thereafter the plaintiff was on crutches and took medication to relieve pain. When he ceased taking this medication he found that the knee was less painful than it had been before the reconstruction.

73. Mr Cheng reviewed the plaintiff on 4 November 1992 when he observed that he had about 20 degrees lack of full extension of the knee and that flexion was about 120 degrees. The quadriceps muscles in the knee were very weak. Mr Cheng last reviewed the plaintiff on 2 December 1992 when he noted that the knee was more stable than it had been on the previous occasion and that the range of movement was from 5 degrees to 120 degrees. For some three months, I infer after surgery although the plaintiff's evidence about this was somewhat confusing, the plaintiff underwent physiotherapy which provided some temporary relief from pain. On 2 December 1992 Mr Cheng advised the plaintiff to continue with physiotherapy but he appears not to have done that for any significant period of time. Why he ceased physiotherapy treatment was not explained in evidence.

74. Mr Cheng no longer resides in Australia so was not called as a witness. A report prepared by him on 11 December 1992 was tendered by the plaintiff with the consent of the defendants. In that report Mr Cheng expressed the following opinions:

"In summary, he had a quite severe injury to his left knee

which involved a torn meniscus and a rupture of the cruciate

ligament which was reconstructed however, I would not expect

him to have full function of his knee even after

reconstruction of the ligament.

He has indicated to me that he will not be able to go back to

his original work as a forestry worker which involves

climbing up and down hills, walking on uneven grounds and

slopes and sometimes carrying heavy weights. He had worked

in the Forestry for the past two years and worked at the

Hydro Electric Commission five years before that. Although

his knee condition might improve with time I think that Mr

House is unlikely ever to be able to work again in a job for

which he is reasonably qualified by education, training or

experience. He might be able to do some light duties or a

sedentary job which does not involve putting too much stress

on his knee. However, it will be very difficult for him to

find such jobs with regard to his background of education,

training or experience."

75. The effect of the plaintiff's evidence is that although initially there was a lessening of pain in the knee after the reconstruction, thereafter it again increased in intensity and frequency and that he continues to suffer from severe pain in the knee and from some pain in the ankle. He described the difficulties which he continues to have with his knee. When he attempts to stand after having been seated for some time he sometimes finds that the knee locks up so that he is unable to walk. When he wakes in the morning he has to sit on the edge of the bed for 5-10 minutes to loosen up his knee and ankle before attempting to walk. He said that for the first hour after rising in the morning he has particular problems with pain and with his knee locking.

76. The plaintiff walks each day for a distance of between one and two kilometres but said that he feels "knocked out" after doing so. I observed a number of video films taken of the plaintiff, apparently during the period of 7 months prior to the trial, which showed him walking and engaging in other activities. I assume that the plaintiff was not aware that he was being filmed. In those video films the plaintiff is shown as walking rather slowly and with a slight limp. The plaintiff said that although he is never free from pain he can walk for short distances without causing any immediate severe pain. After having walked the pain becomes severe about 10-15 minutes later. He takes a Panamex tablet to relieve the pain. Mrs House thought that a packet of 50 lasted about 2 months. It is the only form of medication which he takes.

77. The plaintiff assists in carrying out household duties. He does the cooking whenever he is able. He assists with the children, particularly with bathing them and with the evening meal. During the day he tends to sit around but does get in the firewood. He still visits friends but not as frequently as he did prior to his accident. He said that he does not enjoy his life and sometimes feels that he wishes that the next day would never come.

78. The plaintiff was one of a large family. His father died in 1975 and he cared for his widowed mother. He was good at sports whilst at school. After leaving school he continued to play football and cricket. Prior to his marriage he had a full social life and enjoyed going to dances. On 22 March 1986 the plaintiff married his wife. His wife described him as then being a very active sort of person. After his marriage he and his wife enjoyed mixing with friends and dancing at cabarets. They have not gone dancing since the accident. Since the accident the plaintiff and his wife have tended to stay at home and have fewer friends who visit. The plaintiff's son, Nathan, was born in 1989. The plaintiff described this as the greatest thing that ever happened to him. It was apparent to me that the plaintiff is very proud of his son and very fond of him. Prior to his accident he would play with Nathan on getting home from work, even if it meant waking him up. He now finds that he cannot play with Nathan in the way in which he would like to. He cannot run with him or do things like kicking a football. Nathan often asks him why he cannot run with him. It distresses the plaintiff that he is not able to do all those things with Nathan which he would like to do.

79. The plaintiff had been a keen gardener before his accident. He had a hothouse and raised his own seedlings. He grew vegetables. Since his injury the plaintiff has not done any gardening. He said that he cannot dig because he has difficulty with his ankle and cannot kneel or bend for any extended period of time. All that he has done in the garden since his accident has been to plant some flowers. He still mows his lawns with the use of a motor mower but finds that it takes much longer than it did before his accident. Except for participating in a rehabilitation programme for some time, the plaintiff has not worked since his accident.

80. In general I accept the evidence of the plaintiff as to the effect which his injuries have had upon him. I am satisfied that he is seriously disabled by reason of those injuries. Counsel for the defendants told me that his clients accepted that the plaintiff was severely disabled as the result of his knee injury and that they accepted that he would never be capable of performing work of the nature which he was performing at the time of his fall from the ladder. I find that to be so. The severely disabling nature of the plaintiff's injuries, and in particular the knee injury, was confirmed by an orthopaedic surgeon, Mr Batten, who was called by the plaintiff. In substance the opinions expressed by him were not disputed and I accept his evidence.

81. The precise nature of the ankle injury is unclear and was unclear to Mr Batten, he not having had access to any clinical notes relating to it. However, having reviewed x-rays, he thought that the plaintiff had suffered what predominantly was a soft tissue injury or an undisplaced medial malleoalar crack, either of which would have been treated conservatively. He did not consider that any present symptoms of significance arise out of the ankle injury. I accept that the plaintiff still suffers some intermittent moderate discomfort in the ankle but conclude that by and large he has recovered from this injury and probably did so within a few months of his fall.

82. The plaintiff's knee is clinically unstable and this position is incapable of being substantially improved without considerable surgery. However Mr Batten thought that such surgery would be of questionable benefit and the plaintiff made it quite clear that he had no intention of undergoing it. That is a perfectly reasonable attitude for him to take. I proceed on the basis that he will not undergo such further surgery. It is possible that over subsequent decades the knee joint may deteriorate further with arthritis and associated symptoms. If this were to occur then salvage surgery may be required.

83. Mr Batten thought that the plaintiff ought to have his prominent tibial screw removed. The removal of this screw would not improve stability but, in the opinion both of Mr Batten and of a consultant physician, Dr MacLaine-Cross, might well substantially reduce the level of pain being suffered by the plaintiff. However the plaintiff is not presently minded to have the screw removed. His explanation for this was that he dislikes hospitals. He may well change his mind about that in the future. There does not appear to be any particular risk of other injury if the screw were to be removed and it is very likely that it is the source of much of the plaintiff's pain. Its removal, whilst making little if any difference to the nature of the plaintiff's physical disabilities, is likely to improve his level of comfort substantially. It would be reasonable for the plaintiff to have the screw removed even though there remains the possibility that the expectations of the medical practitioners as to the resultant reduction in the level of pain may not be realised. In all the circumstances I consider that damages ought to be assessed on the assumption that the plaintiff will have the screw removed and that it is likely that its removal would substantially reduce the level of pain in the knee but would not otherwise reduce the level of his disabilities. It is appropriate to proceed on this basis because the plaintiff is under a duty to mitigate his damage in this way (see eg Xenox v Curnow (1975) 12 SASR 301).

84. After the accident there was some friction between the plaintiff and his wife. The plaintiff believed that she thought that he was getting under her feet. She said that they argued more. On one occasion, about Christmas 1992, she left him, apparently after an argument and as the result of a decision made on the spur of the moment. They were not apart for very long because she returned home a day or so later. They discussed their situation and managed to resolve their differences. I accept that the plaintiff has become more difficult to get on with because of the pain which he suffers, his dissatisfaction with his lot in life and his general sense of frustration. The plaintiff consulted Miss Kinross Smith, a psychologist at Ulverstone, and intends taking her advice to have counselling to assist his marriage.

85. The plaintiff is able to drive his car, which has manual transmission, but finds that he cannot do so for long distances. When driving to attend Court in Hobart from his home at Wynyard he and his wife shared the driving, changing over 3 or 4 times. He finds that if he drives for too long that he suffers pain in his ankle and knee. He finds that changing gears causes pain in the left knee. Sometimes he has pain in the right ankle as the result of using the accelerator.

86. In summary, the plaintiff has suffered an injury which has caused significant pain, constitutes a major loss of bodily integrity and has substantially affected his life. His ability and inclination to engage in the many leisure time pursuits in which he formerly engaged has been markedly reduced. Problems have arisen in his marriage. His ability to perform the role of a father as he would wish to perform it, and as he performed it before his accident, has been markedly reduced. He has lost his sense of self respect and purpose in life which came from being a hardworking useful member of the community who provided for himself and his family. I tentatively assess general damages of a non-economic nature at $35,000.00.

87. The parties were agreed as to a number of basic figures relevant to the quantification of the loss of the plaintiff's earning capacity. Gross payments of weekly compensation totalling $60,676.10 have been made as at the date of this judgment. The parties are agreed that if the plaintiff had not been injured and had continued in his employment as a tree pruner for the Commission, his gross earnings as such from the date of his accident until the date of judgment would have amounted to that same sum. Although a loss of earning capacity is to be quantified in terms of what an injured plaintiff would have earned after payment of income tax had it not been for the injury, where such a plaintiff has been paid workers compensation payments, the gross amount of which is to go in reduction of an award of damages, he is entitled to further damages on the basis of the principle laid down in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. Such damages appropriately may be provided for in the present case by assessing the plaintiff's loss of past earning capacity upon the basis of what would have been his gross earnings, except that, to the extent that the loss of past earning capacity is assessed at less than the amount of weekly compensation paid, an additional amount must be allowed for the tax paid on the difference between the compensation paid and the damages otherwise allowed. This amount is not capable of precise quantification on the basis of the material placed before me.

88. I am satisfied that the plaintiff has been incapable of engaging in available remunerated employment since the date of his injury. He was employed by the Commission by way of a rehabilitation programme for a short period of time but that was not successful once he was required to perform duties of a reasonably heavy nature. In the absence of evidence to the contrary, I assume that whilst the plaintiff was engaged in this programme he continued to be paid weekly payments of compensation. The plaintiff's performance during that programme confirms that he is not able to carry out heavy work.

89. At the time of his accident the plaintiff was hopeful of being offered permanent employment with the Commission. No such offer was ever made to him. He claimed that Mr Walker had told him after the accident that he would be made permanent, or at least that he would have been made permanent had it not been for the accident. Mr Walker said that two of the four persons who had been employed as casual pruners, of whom the plaintiff had been one, were offered permanent employment soon after the plaintiff's accident and accepted the offers. Mr Walker believed that if the plaintiff had not been injured he would have been offered permanent employment because the plaintiff's status as a married man with children would have resulted in him having been given preference over others who did not have dependants. Mr Walker thought that all four casual pruners were of equal competence. Whilst Mr Walker may have held these beliefs, I do not accept that the plaintiff's marital status would have resulted in him having been given preference. I observe that the giving of such preference would seem to be contrary to the employment principles provided for by the Tasmanian State Service Act 1984, s4(1). Mr Walker stated no reasons for his beliefs and in particular did not point to any occasion when a person had been given preference by reason of his marital status or family responsibilities.

90. Mr Gray gave evidence as to the engagement of some of the casual pruners as permanent employees. I note that he said that three were so employed and not two as was stated by Mr Walker. He said that for some time officers of the Commission at Wynyard had been seeking permission to employ all four casual pruners on a permanent basis. The initial requests to this end did not meet with any success. Ultimately permission was granted to engage three of the pruners on a permanent basis. This was after the plaintiff had suffered his accident. Mr Gray said that prior to the plaintiff's accident he, in consultation with others, had ranked the four casual pruners in order of merit, apparently in anticipation of receiving funding to employ fewer than four permanent pruners and the resultant need to make a choice from amongst the casual pruners. The plaintiff was ranked last. Accordingly, when funds were made available to employ three of the casual pruners on a casual basis, the plaintiff was not offered permanent employment. The fact that the plaintiff was then incapacitated for work was not a relevant consideration. The effect of Mr Gray's evidence was that whether or not the plaintiff had suffered his accident, he would not have been offered further employment as a pruner after 14 November 1991. On 6 November 1991 Mr Gray wrote to the plaintiff informing him that his temporary employment would cease on 14th November 1991.

91. It was submitted by the plaintiff that I should not accept Mr Gray's evidence because he had demonstrated bias against the plaintiff and had been evasive in the course of cross-examination. I do not accept that submission. The submission was based on evidence given by Mr Gray concerning an offer to the plaintiff to provide him with fire wood. I found the witness to be perfectly frank when he gave evidence in relation to this matter and his explanation for not yet having provided the plaintiff with fire wood, when earlier he had offered to do so, to be perfectly reasonable. I accept Mr Gray's evidence that the plaintiff would not have been employed as a pruner in the Commission's Wynyard district after 14 November 1991.

92. Nevertheless the previous employment history of the plaintiff was such that it is likely that he would have found other employment had he not been incapacitated by reason of his injury. He had only had one short period of unemployment since leaving school. He was qualified as a tree pruner and other work of this nature might well have been available to him in other plantations. He was the sort of person who was likely to find other work although he might well have had one or more periods of unemployment. Both sides proceeded on the assumption that the rate of weekly compensation being paid to the plaintiff was indicative of the rate of pay which he might have been expected to be able to earn from other employment had he not been injured. I proceed upon that basis.

93. Bearing in mind the considerations which I have mentioned and making allowance for the normal contingencies I tentatively assess the plaintiff's damages for his loss of past earning capacity and on the basis of Fox v Wood (supra) at $50,000.

94. As to the plaintiff's loss of future earning capacity I accept the following unchallenged opinions expressed by Mr Batten in reports dated 12 August 1993 and 29 September 1994, which opinions were adopted by him in evidence:

"I think it is likely that this gentleman will not return to

any form of heavy labouring that he performed prior to this

accident and given his education, training and experience

there is probably little available in the open market other

than very sedentary type activities of a more supervisory

type or sit down type jobs. It would certainly be

inappropriate for him to work on ladders in confined spaces

or on uneven ground, all of which are likely to aggravate his

symptoms."

"Because of Mr House's knee problems and his limited

education skills, he will probably have a major difficulty

obtaining work of the type he has previously performed.

Given the nature of the injury to the knee and its current

disability he will not be able to undertake heavy work which

requires lifting or twisting or turning, he would be most

unwise to work above the ground on ladders due to the

reliability of the joint and activities that require

squatting or twisting or working in confined spaces would

also be difficult. The greater the stresses in the knee the

more likely his knee would become symptomatic and demonstrate

its instability."

95. Dr MacLaine-Cross expressed similar opinions. He was of the view that there was no prospect of the plaintiff ever returning to any form of full-time paid employment. The defendants have submitted that the plaintiff has not lost his earning capacity to this extent. In particular they submitted that the plaintiff might well be able to earn income as a taxi-driver, an employee in a plant nursery or the like working at bench height, from carrying on a small business selling and servicing lawn mowers or from his hobby making weather vanes.

96. Mr Batten thought that the plaintiff might well be capable of working as a taxi driver. However with due respect to him he fell into the trap, into which medical experts commonly fall, of expressing a view that a plaintiff is capable of performing the tasks required of a person engaged in a particular form of employment without having carried out a sufficiently extensive study of precisely what is required to be done in the course of such employment. The plaintiff's evidence as to the effect of his injuries, and in particular as to the difficulties experienced by him when driving for long distances, satisfies me that it would not be reasonable to conclude that he would be able to work as a taxi driver on any consistent basis. I observe that there was no evidence as to the availability of work as a taxi driver in the Wynyard or Burnie area or as to what the plaintiff might be able to earn in the event that he was able to work as a taxi driver on a fulltime basis.

97. It may well be that the plaintiff would be able to perform the tasks required of a person seated at a bench attending to seedlings or the like. The plaintiff said that he enjoyed plant nursery work and thought that he would be able to do work at bench height. However there is no evidence that such work would be available to the plaintiff or indeed as to its availability at all. Even if from time to time positions in enterprises where such work is done were to become available, I could not conclude that the duties of persons engaged in such work might not also include duties which the plaintiff is incapable of performing. I take judicial notice of the fact that presently there are many members of the community who are unemployed and who are unable to find suitable employment. That position is unlikely to change in the foreseeable future. Many of those persons do not suffer from any, or any significant, physical disabilities. The plaintiff is severely physically disabled. In those circumstances it may be assumed that the plaintiff would have extreme difficulty in finding such work. Although the work may be within his capabilities, employers may be expected to favour persons not suffering any physical disability over those who do suffer from such a disability. I am persuaded that from time to time the plaintiff may well be able to earn some income from suitable light work but I do not consider it likely that he will be able to earn consistent income from this type of employment.

98. The plaintiff has made weather vanes as a hobby. Apparently he made most of these when he lived at Somerset. He has made some since he moved to Wynyard but found that the shed at that house is too small for him to pursue his hobby there. There was no evidence as to what profits, if any, he has derived from this hobby. There was no evidence of as to the extent of the market for weather vanes. In the absence of evidence going beyond the fact that the plaintiff is able to make them, I am not justified in finding that he could earn any significant income from this pursuit. As I understand the evidence the plaintiff was making weather vanes before his injury. In the absence of evidence that there is a market greater than that which he was servicing before his accident, any income he is able to earn from making them is irrelevant.

99. The plaintiff expressed some interest in setting up a small business selling and repairing lawn mowers. He said that he had thought about this "a lot" but I consider that the evidence given by the plaintiff about his intentions and of his thoughts indicated that he was quite naive as to what might be involved in operating a business of the type he had in mind. Clearly if he were to set up in the business of selling and repairing lawn mowers he would need to invest substantial capital in stock, provide premises, outfit those premises and acquire the necessary tools and machinery required to carry out repairs. I accept that the plaintiff genuinely believed that he might well be able to make a success of such a business but I am not able to share his optimism. No feasibility study has been done as to market demand or as to the financial ramifications. I share Dr MacLaine-Cross' doubts about the plaintiff's ability to make a success of such a business. My observations of the plaintiff in the witness box did not lead me to conclude it to be at all likely that he possesses the skills required of a successful businessman.

100. I have concluded that largely the plaintiff has lost his earning capacity. By reason of his quite limited skills and education the plaintiff's situation before his accident was that he was only fitted for employment of a manual nature. His injuries have resulted in him being incapable of doing such work to the extent that it would be required of any normal employee, unless it were to be of a light or sedentary nature. The realities of the economic situation are such that he is unlikely to find suitable work on any long term basis. His earning capacity has not been entirely destroyed but he is unlikely to be able to substantially utilise the earning capacity which he retains. His position is similar to that of the respondent in Devlaun Pty Ltd v Tapp A14/1991.

101. The plaintiff said in evidence that it had been his intention to continue working until he attained the age 60 and I accept that evidence. The capitalised sum representing a loss to the plaintiff of the weekly amount equal to what he would now be earning if employed as a tree pruner for the Commission from the present until he attains the age of 60, allowing for tax at the appropriate rates and applying a 7 per cent discount factor, is $177,632. There was some suggestion that pruners working for the Commission sometimes have been able to earn additional sums when performing fire fighting tasks but as I am not persuaded that the plaintiff would have remained in such employment beyond November 1991 such additional earning are not to be taken into account.

102. The sum of $177, 632 is an appropriate quantification of the plaintiff's loss of future earning capacity, subject to an allowance for contingencies, in particular the contingency that in any event he would have suffered future periods of unemployment and the real chance that in the future the plaintiff may be able to earn some modest sums from some forms of employment. It is appropriate to make allowance for all contingencies by applying a discount factor of 30 per cent. That leads to a tentative assessment of damages for the plaintiff's loss of future earning capacity of $124,343.

103. It is common ground between the parties that the plaintiff has lost future superannuation benefits. The benefits are in the nature of payments required to be made by any employer and therefore are not related to any particular form of employment. The basic figures have been agreed. It also has been agreed that those figures are to be subject to an allowance for contingencies equal to the allowance for contingencies applied to the plaintiff's loss of future earning capacity. The only matter of disagreement between the parties is as to the appropriate discount factor to be applied. The result of making the appropriate allowance for contingencies is that the plaintiff's loss of future superannuation benefits is to be assessed at $7,547 if a 7 per cent discount factor is to be applied and at $10,461 if a 3 per cent discount factor is to be applied.

104. Counsel for the plaintiff argued for a 3 per cent discount factor on the basis of Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 and submitted that the Common Law (Miscellaneous Actions) Act 1986, s4(1) does not apply to this head of damage. That subsection provides as follows:

"4 (1) Where an award of damages that relates to personal

injury or the death of a person is to include compensation,

awarded as a lump sum, in respect of damages for future loss

that is referrable to

(a) loss or impairment of capacity to earn;

(b) loss or diminution of future probable earnings;

(c) loss of the expectation of financial support; or

(d) a liability to incur expenditure in the future, the

present value of the future loss shall be qualified (sic) by

adopting

(e) a discount rate of 7 per cent; ..."

105. The superannuation benefits with which I am concerned are in the nature of sums of money periodically required to be set aside by the employer and paid to a fund so that the total of the contributions might accumulate and be applied for the benefit of the employee upon retirement or his dependants upon death. The amount to be paid from time to time is calculated as a percentage of the employee's wages so that it is directly related to the employment. Payments are only required to be paid in respect of persons actually employed by an employer. In my view such sums as are paid over answer to the description of being "earnings" within the meaning of s4(1)(b). The employee, by his labour, earns the right to have the payments made, even though the employer's liability ultimately is capable of being enforced by statute. The fact that there is no entitlement to have any of the sums paid over until retirement or death does not alter the proper categorisation of the payments. Accordingly the law requires that I apply a 7 per cent discount rate.

106. At the time of the accident the plaintiff's wife was employed by Telecom as a telephonist. She had been employed by it for some 12-13 years until she commenced maternity leave for a period of a year shortly before the birth of her first child. At the expiration of that period of leave she resigned her permanent employment with Telecom but continued to be employed by it on a casual basis. Some weeks after the plaintiff's accident his wife ceased working for Telecom. Whilst a variety of reasons for her taking this step were offered in evidence, I will assume that one reason was the need for her to be at home and care for the plaintiff. There was evidence that for some time she assisted him with showering, dressing and undressing. The plaintiff's case is that his wife was earning $450 per week clear whilst working for Telecom, that she lost those earnings for a period of three months by reason of having to be at home and care for him and that he is entitled to be compensated for that loss.

107. The plaintiff submitted that this head of damage is recoverable on the basis of the principles expressed in Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523 and that that right is not affected by the Common Law (Miscellaneous Actions) Act 1986, s5 which precludes me from awarding damages for "the value of services of a domestic nature or services relating to nursing and attendance" provided by another person and for which the plaintiff has not paid and is not liable to pay.

108. Wilson v McLeay (supra) was a case where a plaintiff was awarded by way of damages some amount for the provision of services rendered by her parents at some financial cost to them. However it is useful to read the analysis of the relevant underlying principles which permitted the award of such damages which is contained in the judgment of Stephen J in Griffiths v Kerkemeyer [1977] HCA 45; (1976-1977) 139 CLR 161 at 171-175. To allow the plaintiff to recover the expense incurred or loss suffered by his wife would be to offend the principle that an injured plaintiff may only recover the losses which he has suffered (Blundell v Musgrave [1956] HCA 66; (1956) 96 CLR 73). The plaintiff in Wilson v McLeay (supra) did not recover the expenses incurred by her parents. She recovered the value to her of the services which had been provided by means of that expenditure. It is but an application of the general principle which permits, subject to any statutory provision to the contrary, the recovery of the value of gratuitous services, which principle was elucidated by Griffiths v Kerkemeyer (supra). The plaintiff's submission to the effect that s5 is directed only to an award of special damages and not to an award of general damages is devoid of merit. There is no basis upon which the plaintiff may recover the loss suffered by his wife. On common law principles he is limited to recovering the value of those services to him. Those services were rendered gratuitously. Section 5 prevents me from awarding any amount in respect of the value of those services.

109. For the reasons expressed earlier it is appropriate to assess the plaintiff's damages on the basis that he will have the screw removed in the near future. I accept Mr Batten's evidence that the overall cost of this will be about $2,500. There is the possibility that other surgery may be required in the distant future. I have no evidence of the cost of such surgery, but its nature is such that, if it is performed, its cost is likely to be greater than the cost of the removal of the screw. However it is far from certain that such surgery will ever be required.

110. The plaintiff proposes to undergo counselling. It is reasonable for him to do so. The need for counselling is causally related to his injuries. I have no evidence of the anticipated cost of such counselling but I infer that it is likely to be modest. Some allowance is to be made for it. The plaintiff takes Panamex to provide relief from pain. The need for this is likely to reduce if the screw is removed. In any event the present amount expended by the plaintiff on this medication is in the region of $15 per year only.

111. Doing the best I can with the limited material available to me I tentatively assess damages in respect of future expenses at $5,000.

112. I have tentatively attributed the following amounts to various ingredients of the plaintiff's general damages:

Pain, suffering and loss of amenity of life $35,000

Loss of past earning capacity and

Fox v Woods damages 50,000

Loss of future earning capacity 124,343

Loss of superannuation benefits 7,547

Future medical, hospital and

pharmaceutical expenses 5,000

$221,890

113. It is appropriate to round up the total of these figures. I assess the plaintiff's general damages at $225,000.

114. The Crown has paid sums totalling $17,369.64 by way of medical, hospital and similar expenses pursuant to the Workers Compensation Act. The parties are agreed that all are recoverable by way of special damages. The only other special damages claimed are in respect of removal expenses incurred by the plaintiff. Some time after his accident the plaintiff and his family moved from the house occupied by them at Somerset to a house at Wynyard where they now live. The plaintiff said that the move became necessary because the Somerset house stood on a steep block which he found difficult to negotiate. The house at Wynyard is built on flat ground. He incurred between $500 and $800 in removal expenses. It was reasonable for the plaintiff to incur that expenditure and it is recoverable by him. As the plaintiff was vague as to what amount he had paid I will allow $500 as I cannot be satisfied that he incurred any greater sum. In the result the plaintiff's special damages are assessed at $17,869.64.

115. The plaintiff's damages are assessed at $242,869.64. If I had concluded that the plaintiff is entitled to recover those damages there would need to be deducted therefrom the payments made to the plaintiff or for his benefit pursuant to the Workers Compensation Act.