Damages For Personal Injuries - mitigation of economic loss - whether cost of university course should be allowed to the plaintiff as a reasonable step in mitigation of loss suffered by inability to do heavy work - whether proved loss of wages into the future for a closed period should be diminished by alleged ability to earn higher income in the more distant future as a result of university studies - effect of pre-existing degenerative condition - effect of defendant's failure to tender medical evidence - re-consideration of award of general damages on the basis of error in the approach to the assessment within the principle of Planet Fisheries Proprietary Limited v. La Rosa.

Planet Fisheries Proprietary Limited v. La Rosa [1968] HCA 62; (1968) 119 CLR 118

Monroe Schneider Associates (Inc) v. No 1 Raberem Pty Ltd [1991] FCA 592; (1991) 33 FCR 1

Shearman v. Folland (1950) 2 KB 43

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

Simonius Vischer and Co v. Holt and Thompson (1979) 2 NSWLR 322

Counsel for the Appellant: Mr R. Williams Q.C. with

Mr G. Richardson

Solicitors for for Appellant: Messrs Pamela Coward and

Associates

Counsel for the Respondent: Mr G. Parker

Solicitors for the Respondent: Messrs Sly and Weigall

2. The assessment of the damages made by the trial judge be set aside and in lieu thereof it be ordered that the respondent pay damages assessed in the sum of $263,412.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BURCHETT, HILL AND HIGGINS JJ This is a plaintiff's appeal against the adequacy of damages awarded for a serious back injury sustained in an industrial accident. Before coming to the particular complaints made against the assessment, it is convenient to set out some matters an appreciation of which is essential to an understanding of the appellant's case.

2. At the time of his injury, on 27 August 1988, the appellant was 29 years of age, and married with two children. He was working as a sub-foreman carpenter on a construction project. Until then, he had been in continuous employment, that is, with no periods out of work except normal annual holidays, since he completed his apprenticeship and gained an advanced trade certificate in carpentry in 1979 in New Zealand. He had won, in 1978, a special award of the New Zealand Chapter of the Australian Institute of Building for the outstanding apprentice to complete the trade certificate in carpentry. Since coming to Australia in 1982, he had been employed, almost invariably as a foreman or as a leading hand, until May 1988, when he obtained the work he was doing at the time of his injury. His prospects in the building industry must have appeared excellent.

3. It was suggested, for the respondent, that the appellant was at risk of being forced out of heavy work by reason of a degenerative condition of the spine. He had consulted a general practitioner on 28 January 1988, after lifting some heavy doors on the Parliament House construction job, and had told the doctor of intermittent back pain during the previous twelve months. However, he was treated by tablets and physiotherapy for two days only, and then returned to work, without seeing the doctor again until after the accident seven months later. Three things should be noticed about this matter. First, the diagnosis in January 1988 related to "facet joint pain syndrome at the right T12/L1 level", whereas the injury sustained in August was to the discs at L4/5 and L5/S1. Secondly, after the injury, the general practitioner expressed surprise, in his report, that the appellant did not "settl(e) with conservative management", a clear indication that he could not have expected continuing problems from the condition diagnosed by him in January. Thirdly, the trial judge expressly accepted the appellant's evidence that "he was off work for two days only with no further symptoms ... of any relevance until the date of injury", although, as his Honour also found, "he continued in heavy work from then until the time of injury".

4. The appellant's injury of 27 August resulted from a fall, in which he landed on his buttocks on a scaffolding platform. X-rays of the thoracolumbar spine showed no abnormality, and he attempted to resume work on 5 September, but was unable "because of pain". He did resume work on 12 September, despite pain, evidenced by muscle spasm on examination by his doctor on 20 September, until 28 November 1988. During that period, his condition, as the judge found, deteriorated, with leg pain and numbness developing. He was referred to a neurosurgeon, Dr Chandran, by early December 1988.

5. Dr Chandran obtained a CAT scan and MRI scan. Both indicated, together with the history, an injury to the L5/S1 disc, the MRI scan showing, in Dr Chandran's opinion, "a significant bulge". At that stage, the doctor thought the appellant "unfit to return to work". Dr Chandran considered the L4/5 level required investigation, and a discogram was performed, "which showed painful disruption at the L4/5 level and no abnormality at L3/4". Excision of the L5/S1 disc and fusion from L4 to S1 were carried out by Dr Chandran on 2 June 1989. At operation, the "disc was found to be bulging centrally". The operation seemed, at first, to be a success, at least in the view of Dr Chandran. By August, he was considering a return to work, although later he revised his opinion, and proposed that a return to light duties should be deferred until mid-October. In December, he suggested the appellant should not work as a carpenter, but should look for light or sedentary duties. However, the appellant continued to complain of pain, and was submitted to a variety of procedures, "none of which", as the judge found, "was of lasting benefit". Eventually, x-rays taken on 13 February 1992 revealed that there had been a failure of the fusion at L4/5. Dr Chandran reported, on 9 September 1992:

"Mr. Tucker thus has residual symptoms in his back which is

(sic) probably arising from failure of fusion at the L4/5

level. His symptoms are now mild and restrict his ability to do

heavy physical work or sit for long periods of time. The need

for any further surgery is determined by the amount of pain

that Mr Tucker has and the degree of relief he is seeking. If

the block has satisfactorily relieved his pain for a short

period of time it would indicate that by revising the fusion it

should be possible to bring about further relief of his

symptoms. He remains unfit to continue with heavy physical

work. The loss of function in his back is assessed as 25%."

(The reference in this passage to "the block" is a reference to a diagnostic procedure which did, in the event, indicate further surgery might be of value. However, the appellant, who was given that information only at the time of the hearing, has not, as yet, been prepared to submit to this, and the judge found his attitude to be reasonable in the circumstances.)

6. It is, of course, quite consistent with a natural reluctance to repeat major surgery which has already failed once that a patient may, as Dr Chandran said in evidence, "after a while get fed up with the pain and then consider the operation". Of this patient, Dr Chandran said: "(A)t the last visit he had been in considerable pain."

7. In the meantime, the appellant had decided to attempt to rebuild his working life along lines allowing for his disability. He obtained mature age entrance to what is now Canberra University's Bachelor of Commerce and Accounting course. At the time of the trial, in October 1992, the appellant expected to finish this course (with an excellent series of examination results) by the end of the year, and was to start work as a graduate accountant in the Department of Finance of the Commonwealth in February 1993. It should be noted that the appellant had to have special arrangements made in respect of his examinations, and was allowed to stand in lectures and tutorials, because of difficulty sitting for any length of time.

8. The trial judge accepted that the appellant's condition was a result of his injury and of the failed fusion, which was itself a measure reasonably undertaken to relieve the injury. He also accepted that the appellant's university studies were undertaken in reasonable mitigation of his loss of earning capacity as a carpenter and foreman. However, he declined to allow the cost of those studies, saying simply: "Although it is not the only consideration, the expenses of a university education have led to the acquisition of what is properly characterised as a capital asset." More significantly, his Honour reduced the wage loss claimed, for the whole period up to February 1993, to a calculation based on the 1988 base rate of $536.10 per week, with no allowance for overtime, although the actual net wage for the year before injury was substantially higher, and then

"discounted (the resulting figure of $123,280) for the

degenerative condition (of the appellant's spine) and

discounted further for the likelihood that the plaintiff would

not have been in continuous employment during the whole of the

period and that there would have been breaks between different

construction jobs".

9. As to the future, the judge allowed what he described as

"a nominal to modest sum of $5,000.00 to mark the loss to the

plaintiff of the opportunity to return to heavy work in the

construction industry or to carry out heavy work of any kind.

In the circumstances, it is highly unlikely that he would ever

wish to utilise the opportunity that is now denied to him."

His Honour noted that the appellant "will never be fit for heavy work, but he has used the opportunity to qualify as an accountant and is soon to engage in employment in that field which has not been shown to be less remunerative than that of a carpenter." Although he described the appellant's present symptoms as "mild", he allowed $5,000 for further medical and pharmaceutical expenses, not including the contingency of a further operation, which he thought remote, but took into account in the award of general damages. In the result, the award was calculated as follows:

"General damages $35,000.00

Interest on general damages $1,733.33

Past loss of earning capacity $100,000.00

Interest on past loss of earning capacity $16,228.33

Future loss of earning capacity $5,000.00

Past out-of-pocket expenses $16,144.05

Future out-of-pocket expenses $5,000.00

Fox v. Wood $14,387.84

Griffiths v. Kerkemeyer $1,940.00

Loss of contributions to superannuation

and long service leave $5,000.00

Total: $200,433.55"

Judgment was entered for the round sum of $200,000.

10. A pervasive element, affecting a number of areas of this award, is his Honour's view of the seriousness of the appellant's degenerative condition. It was expressly stated to have affected the calculation of past economic loss for a period commencing when the appellant was only 29 and ending before his attainment of the age of 35, and also the allowance in respect of superannuation and long service leave. It even affected the allowance for future treatment, which was qualified by the observation: "Of course with his degenerative condition he was likely to have sought treatment anyway". (Such a likelihood, as a matter of any significance at all, is not supported by the medical evidence.) The same proposition must also have affected the assessment of general damages in a case which his Honour summarised as involving "a real and disabling injury to an already degenerative spine".

11. It is therefore appropriate to turn first to the attack launched by the appellant on this view of his Honour. The appellant says the medical evidence simply does not justify the idea that the appellant was subject to any significant risk of a shortening of his working life in the building industry, or any need of significant treatment at any time during his working life, by reason of the condition of his spine - certainly, there was no basis for the proposition that he was at risk as a young man still in his thirties.

12. Reference has already been made to the appellant's work history, and his complete freedom from any back problem during the period of nearly seven months prior to his injury. This was accepted by the judge. It is also apparent that the appellant was destined for a supervisory role, which would be likely to throw less strain on his back than many carpenters undergo. All the medical evidence in the case was given by the doctor called by the appellant, or in reports tendered by the appellant. That evidence, and inferences fairly arising out of it, should accordingly be viewed in the light of the respondent's decision not to tender any medical evidence, although the appellant had been examined by no less than five medical experts on its behalf between 8 February 1989 and 12 November 1990. Dr Chandran was cross-examined in general terms about degenerative conditions and possible consequences, but he was not really challenged in respect of his opinion on the vital point about this patient, whom he had treated over a lengthy period. That opinion was quite direct:

"Prior to that, doctor, he had consulted in January, of the

same year, some nine months earlier, his general practitioner

and had said that he had had some intermittent history of pain

which he has demonstrated in the court as being below the

shoulder blade, right to centre, rather than down the belt

line. He felt that pain, I think, lifting doors, that I recall,

lifting something at work and had two days off work, and then

was back at work without any further symptoms, or difficulty,

until this frank accident. Can you say, doctor, what the

probability is that if he hadn't had the accident, in August,

as to his capacity to continue to work as a carpenter?---The

description of the pain, and the duration of the pain, is not

similar to the pain that he had subsequently, and I do not

think that the initial injury described had any relevance to

these subsequent events, so he could have continued as a

carpenter, having recovered from that initial incident."

13. This view is consistent with the general practitioner's surprise that the appellant did not recover quickly from the injury. It is also supported by the reports of specialists who were not cross-examined. Dr Arnold Mann, a surgeon whose report of 8 August 1990 shows that, even then, he suspected the failure of the fusion in the lumbar spine, thought the appellant was "severely disabled" and "quite genuine". Specifically asked about the pre-existing condition, he wrote:

"Your best guide in this direction is to determine his work

history in the year preceding the August 1988 fall.

If there were numerous absences from work at that time, then

that state of affairs must be given more substantial

consideration than would otherwise be the case."

There was, of course, no suggestion of absences from work, except for two days in January 1988. Dr Owen White, a neurologist with very high qualifications, commented in his report of 11 July 1992:

"Mr Tucker has suffered an injury to his low back in the fall

at work as described. There may have been some minor

degenerative changes in the low back but not of a degree that

one would have expected Mr Tucker to have had any major pain

within a period of many years. That pain has been associated

with radicular symptoms in the L5/S1 region and complaints of

weakness, not evident now in the post-operative period. He

still has persistent pain. He has had surgery with the

insertion of a Hartshill rectangle and the performance of

fusion. His pain would now appear to be organic and chronic."

In a further report, of 19 August 1992, Dr White elaborated:

"Mr Tucker had no prior history of symptomatic back disease

prior to his injury in 1988.

Although his x-rays showed some minor pre-existing degenerative

change this was of little significance and in keeping with

normal back x-rays of a manual worker of his age.

Under the circumstances I see no reason to believe that there

would have been any foreshortening of his working career in his

chosen employment had the accident not occurred."

Lest the doctor's statement that there had been no history of symptomatic back disease be misunderstood, it should be stated that he recorded the incident at the Parliament House site and "a history of low back strain". Dr White had also reviewed the "x-rays of the lumbosacral spine from 1988, MRI scan from 1989 and CT and x-rays since (the operation)".

14. In the face of all this evidence, not opposed by any medical evidence for the defence, and having regard to the limited cross-examination of Dr Chandran only, on this point, and also having regard to the appellant's outstanding work record, the trial judge's gloomy view of the appellant's pre-injury prospects in his chosen field of endeavour really cannot be supported. There is no solid basis for treating the appellant as at greater risk than the general run of building worker of his age, and that age was and is still young. The basal question is medical and scientific in character, and therefore to be decided upon the expert testimony: Adelaide Stevedoring Company Limited v. Forst [1940] HCA 45; (1940) 64 CLR 538 at 568, per Dixon J (the exception established by that case is, of course, quite inapplicable here).

15. It follows that the discount applied to the calculations for wage, superannuation and long service leave losses ought not to have been applied, so far as that discount was based on the appellant's medical condition. The judgment does not reveal to what extent it was based on the other consideration mentioned, that is, the difficulties currently afflicting the building industry. In that situation, this court must decide what discount (if any) is appropriate. Bearing in mind the appellant's record, certain evidence of his willingness to travel for work if need be, the relatively short period involved, and the discount inherent in figures which allow nothing above the base rate although the appellant was earning at the time of his injury well above that rate, it is not appropriate to impose any further discount.

16. The next matter raised in the appeal is whether it was correct to take the date of the appellant's proposed commencement of work in the Department of Finance as the terminating point for the calculation of the extent to which his loss of earning capacity would be reflected in an ascertainable and direct diminution of earnings. It is not clear on what basis the trial judge pursued the calculation no further. Counsel for the respondent sought to rely, in this respect, upon the judge's view of the vulnerability of the appellant's back. But, leaving aside the error in that view, the "nominal to modest sum of $5,000 (allowed) to mark the loss to the plaintiff of the opportunity to return to heavy work ... or to carry out heavy work of any kind" shows that his Honour did not think the appellant's earning capacity as a carpenter would be entirely negated. The respondent also attempted to justify the award in this respect on the basis that any loss sustained in the early years of the appellant's employment as an accountant would be outweighed by subsequent gains. However, his Honour did not find that the appellant will ever be earning significantly more as an accountant in the public service than he would have earned had he been able to continue his career in the building industry. His Honour went no further than to find that employment as an accountant "has not been shown to be less remunerative than that of a carpenter". On the evidence, that limited finding seems to be entirely justified. Any possibility that the appellant, as an accountant, may achieve a highly remunerated position cannot rationally be regarded as having about it a greater degree of probability than the possibility that, in the building industry, a man of his demonstrated intelligence, with his proven record in a supervisory capacity from a very young age, might have progressed to the position of project manager of important constructions.

17. The evidence is clear that the appellant will not be commencing in his new and untried field of employment at a wage even nearly equivalent to what he could, if uninjured, have been earning in the building industry. He will be on probation for 12 months at a salary equivalent to $363.97 net per week. After that, he would expect to go, assuming he completed his period of probation satisfactorily, to a figure of about $473 per week. It was not disputed that this level of remuneration would continue for several years before he would attain a reward equal to the $536 per week which was the base rate accepted by his Honour for the purpose of wage loss calculations. If the period be taken as three years after the first year of probation, the resultant calculated figure would be $18,934. After making allowance for the uncertainty of the period, and also discounting for contingencies, while remembering that not all of them are adverse, it would not be reasonable to allow less than $15,000 for the proven prospect of reduced earnings in the future until the appellant's level of earnings reaches that which he had achieved prior to the accident in his chosen field of endeavour. As the trial judge's approach must have been influenced by his view of the appellant's medical condition, although that alone could not in any case have wholly justified it, a reconsideration of this element of the award is required, and it is appropriate to include in the calculation of the damages the sum of $15,000 for impairment of earning capacity in the future. This sum, of course, would overlap the sum of $5,000 previously mentioned. But a part of that amount relates to inability to do heavy work outside the construction industry. Presumably, his Honour had in mind the loss of ability to do work around the home, and matters of that kind, which should not be overlooked when the award of general damages comes to be considered if a separate allowance of $5,000 is eliminated.

18. One further aspect of the claim for future economic loss should be mentioned. If it had appeared, on the evidence, that there was a probability, which was more than speculative (see Malec v. J.C. Hutton Proprietary Limited [1990] HCA 20; (1990) 169 CLR 638 at 643), of the appellant obtaining in the future, by the exercise of his new found earning capacity as an accountant, rewards outweighing his earlier losses, it would not have followed that he should be deprived of recovery for losses actually to be incurred. If that did follow, it would be hard to see why the setting off of future gains would not extend also to past wage losses, so that, in a hypothetical case, a plaintiff who secured retraining might be deprived of all damages for loss of earning capacity. It is a sufficient reason for denying so bizarre a result that the postulated higher rewards in the future would be the result of the fulfilment by the plaintiff of a potentiality which was always his, if he chose to bring it to fruition. Although his reasonable efforts to mitigate his damages might in the event have led to the realization of this potential, and the result might be to eliminate future economic loss as at some date in the future, any rewards thereafter gained by the plaintiff would not necessarily be in the eye of the law so connected with the injury as to require them to be taken into account.

19. Not every benefit received which has some connection with an injury is to be taken into account in favour of a tortfeasor. A familiar example is provided by benefits such as those examined by the High Court in National Insurance Co of New Zealand Ltd v. Espagne [1961] HCA 15; (1961) 105 CLR 569. There is an extensive discussion of a number of cases of this kind in Monroe Schneider Associates (Inc) v. No 1 Raberem Pty Ltd [1991] FCA 592; (1991) 33 FCR 1 at 20-26. As is there pointed out, many authorities have established a test which looks to the question whether a benefit has been conferred on a plaintiff independently of the existence in him of a right of redress against others and not in relief of any liability others may have fully to compensate him. A plaintiff, in the situation now being considered, has a duty to mitigate his loss, but if, having done so, he goes beyond the restoration of his economic position to earn additional moneys for himself by his own endeavours, he does not generally act in relief of the wrongdoer. Such a case may be compared with what was involved in Shearman v. Folland (1950) 2 KB 43, where the defendant suggested the plaintiff, if uninjured, would have lived expensively in hotels, a mode of life prohibited by her injuries the cost of which should therefore be deducted from nursing home costs allowed in the award of damages. Asquith LJ, speaking for the Court of Appeal, rejected this argument, saying (at 47):

"Strange results might certainly follow if it were possible in

every case for the defendant to mitigate damages by proving

what course of conduct the plaintiff would probably have

followed, or what his expenses would probably have been, if the

act complained of had never been committed. A millionaire,

accustomed to live at a palatial hotel, where his weekly

expenses far exceed the charges of the nursing home to which,

after being injured by the defendant's negligence, he is

transplanted, would recover nothing by way of special damage.

Could it really lie in the mouth of the wrongdoer in such a

case to say: 'I am entitled to go scot-free; I have, by my

negligent act, not merely inflicted no loss but conferred a net

financial benefit on the plaintiff by saving him from the

consequences of his habitual extravagance'?"

20. A further matter raised in this appeal is whether the appellant is entitled to recover the sum of $12,180, being the fees and expenses necessarily incurred in relation to his university course. Although the undertaking of that course was held by the trial judge to constitute a step taken in reasonable mitigation of the appellant's loss, the cost of it was excluded from his damages. Apart from the statement that "the expenses of a university education have led to the acquisition of what is properly characterized as a capital asset", the reasons for this exclusion have not been stated. It is not correct that knowledge is to be regarded as a capital asset: Commissioner of Taxation v. Finn [1961] HCA 61; (1961) 106 CLR 60 at 68-69, per Dixon CJ Nor is there any legal principle which requires that a portion of the cost of mitigation of damages should be borne by a plaintiff. The defendant has obtained the benefit of that cost in a greatly reduced claim for future economic loss. Even if mitigation reasonably attempted had not led to any reduction of the damages, it is clear law that the expenses incurred in such an attempt would be recoverable. It is also clear law that a defendant has the burden, not only of showing how a plaintiff's claim ought to be mitigated, but also of showing to what extent it ought to be mitigated: Roper v. Johnson (1873) LR 8 CP 167 at 178, 181-182, 184; Monroe Schneider (supra, at 17). In the present case, the respondent was unable to obtain from the trial judge a finding that the supposed capital asset would in fact yield any higher rewards to the appellant than those which were already available to him in the construction industry. Nor has any argument advanced upon this appeal demonstrated that such a finding should have been made. Therefore, even apart from the other considerations which have already been discussed, it cannot be said that the expenditure upon university studies has done more than achieve a reasonable mitigation of losses suffered by the appellant by reason of his injuries.

21. In Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 at 446-447 Brennan J said:

"Where the plaintiff is able to take steps to restore his

regular receipt of income and thereby to avoid further loss,

and where he incurs costs in doing so, the costs may be

recoverable from the defendant. ... The criterion is whether

the plaintiff has reasonably incurred the costs in mitigating

or in reasonably attempting to mitigate that damage and it is a

question of fact whether the plaintiff has acted reasonably ...."

In Simonius Vischer and Co v. Holt and Thompson (1979) 2 NSWLR 322 at 356 Samuels JA reiterated the proposition that expenses reasonably incurred in mitigation may be recovered "even although the resulting damage is in the event greater than it would have been had the mitigating steps not been taken". It would be odd if the cost of successful mitigation must, on the other hand, be disallowed because it may possibly yield some additional benefit to the plaintiff at some time in the future. It follows that the sum claimed should have been included in the award.

22. The final aspect of the assessment of damages which the appellant challenges is the amount of $35,000 allowed for general damages. The adequacy of that amount is to be judged against the following matters: the appellant was a young man with bright prospects, who has been deprived of the ability to choose to continue his career; he has suffered the effects of lumbar disc lesions at two levels; he has undergone spinal surgery involving a fusion which failed, but was not found to have failed until after some two years during which he was subjected to a variety of unsuccessful treatments; he has been left with a final diagnosis of twenty-five per cent loss of function in his back, with persistent pain which is organic and chronic; his condition has required special arrangements to be made even for such activities as attending lectures and sitting for examinations; on the unchallenged evidence of his wife, his family relationships with her and with his young son have been significantly affected; and he may yet require further spinal surgery. For all this, the award does appear light. It appears the more so when account is taken of the fact that the judge intended it to include some allowance for the possible cost of further surgery and hospitalization. But an award of general damages will not be set aside because the members of an appellate court would themselves, had they heard the case, have awarded some other figure. The principle is indicated in Planet Fisheries Proprietary Limited v. La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 124, where Barwick CJ, Kitto and Menzies JJ said:

"(W)e are of opinion that it cannot properly be said that the

award, though even in that event high, transcends the bounds of

a proper exercise of a sound discretion in assessing the

damages. It is not suggested that the Chief Justice adopted any

wrong principle in his approach to the assessment or that he

gave improper or insufficient emphasis to any fact or that he

was in any respect mistaken in his view of the relevant facts,

and we are unable to say that the award represents a wholly

erroneous estimate of the damages to which the plaintiff was

entitled: Miller v. Jennings [1954] HCA 65; (1954) 92 CLR 190. Accordingly we

are of opinion that the Court would not be justified in setting

aside the award of general damages."

"It is the relationship of the award to the injury and its

consequences as established in the evidence in the case in

question which is to be proportionate. It is only if, there

being no other error, the award is grossly disproportionate to

those injuries and consequences that it can be set aside.

Whether it is so or not is a matter of judgment in the sound

exercise of a sense of proportion."

23. However, it will be noticed that these statements except a case where there is "other error", "wrong principle" in the approach to the assessment, or "improper or insufficient emphasis to any fact", or other mistake as to the relevant facts. In the present case, it has already been indicated in these reasons that the assessment of general damages must have been affected by the judge's view of the seriousness of the pre-existing condition of the appellant's back. His Honour saw the case as one of "a real and disabling injury to an already degenerative spine". Since the conclusion has been reached that this view involved a grave exaggeration of the situation revealed by the evidence, the award of general damages must be reconsidered, and the principle upon which Planet Fisheries was decided cannot apply here.

24. Having regard to the severity of the injury and its consequences, which remain unresolved, and the other matters to which reference has been made in these reasons, the award of general damages should be increased to the sum of $45,000.

25. The appeal should be allowed; the assessment of damages should be set aside; and there should be substituted an assessment calculated as follows:

General damages $45,000.00

Interest on general damages $1,733.00

Past loss of earning capacity $123,280.00

Interest on past loss of earning capacity $22,277.00

Future loss of earning capacity $15,000.00

Past out-of-pocket expenses $16,144.00

Re-training expenses $12,180.00

Future out-of-pocket expenses $5,000.00

Fox v. Wood $14,388.00

Griffiths v. Kerkemeyer $1,940.00

Loss of contributions to superannuation

and long service leave $6,470.00

Total: $263,412.00

It will be noted that no variation has been made to the amount allowed by the trial judge for interest on general damages; that is because the additional amount allowed in general damages is referable to the future rather than the past. His Honour's categorization of past and future losses of earning capacity according to whether the losses had been or would be incurred before or after February 1993, rather than before or after the date of trial, has been retained in this calculation. It is plainly convenient. In the result, the award to be substituted will be in the sum of $263,412.00. The respondent must pay the costs of the appeal.