Workers' Compensation and Rehabilitation Act 1981 (as amended)

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

Guest v NRMA Insurance Ltd [2002] WADC 115

Lockyer v Marshall [2004] WADC 243

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

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Paul v Rendell (1981) 34 ALR 569

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Southgate v Waterford (1990) 21 NSWLR 27

Wade v Allsopp (1976) 50 ALJR 643

1 COMMISSIONER STAVRIANOU: The plaintiff was born on 5 December 1972 and was at the date of trial employed as a wharf assistant. He was involved in an accident in the course of his employment with the defendant on 6 November 1999 when he fell to the ground from a purlin. The plaintiff seeks to recover damages for personal injury suffered in the accident.

2 Liability is not in issue, and the plaintiff's claim came on for hearing as an assessment of damages.

3 In the statement of claim the plaintiff alleges that in the accident he sustained a fracture and dislocation of the left wrist involving an extensive injury to the articulating surfaces.

4 The plaintiff commenced employment with the defendant as a trades' assistant on Cocos Island in October 1999. The term of engagement was three months. On 6 November 1999 in the course of assisting a carpenter to carry out roof work, the plaintiff fell 2.2 metres from a purlin onto a concrete verandah. In doing so, he severely injured his left wrist. He felt excruciating pain and eventually was seen by a general practitioner who administered Panadeine Forte and arranged for the plaintiff to be flown to Perth. Upon arrival he was transferred by ambulance to Fremantle Hospital where he came under the care of Mr Michael Halliday, specialist orthopaedic surgeon.

The plaintiff's background, effect of injuries and evidence

5 At the date of accident the plaintiff was nearly 27 years of age.

He has lived in Wyndham for most of his life. He left school at the age of 15, and then commenced a four year carpenter and joiners apprenticeship. He did not complete the required final practical assessment and therefore was unable to obtain a trade qualification.

6 In February 1993 the plaintiff worked for two months as a maintenance worker for the Shire of Wyndham East Kimberly. Between April 1993 and June 2001 the plaintiff undertook different types of employment, including working for sub-contract builders and working for the Department of Transport on the Wyndham wharf.

7 The plaintiff's interest from a vocational perspective has primarily been in building work. In 1995 he worked for a short period as a trades' assistant for John Silver and Co a firm of painters and decorators. In 1995 he commenced employment with Housemaster Developments Pty Ltd ("Housemaster"), a building company operating in Wyndham and in remote areas of the Kimberley. The plaintiff's employment was as a trade's assistant and involved carrying materials and acting as a general hand. Because he did not hold a trade certificate his income was lower than that of a carpenter. He remained with Housemaster for a number of years. He told me that when the work ran out he would then return to Wyndham and wait until work became available. During that time he would obtain casual employment on the wharf.

8 The casual work the plaintiff did at the Wyndham wharf was varied. The plaintiff told me that there was no real physical work involved.

9 In 1999 the plaintiff commenced employment with Total Petroleum. This was physically demanding and involved use of a sledgehammer. In about October 1999 the plaintiff commenced employment with the defendant as a trade's assistant. He was required to work six days a week, 10 hours a day from 6.00am until 4.00pm. The plaintiff described the work as being physical and involved the carrying of timber and roofing iron.

10 The plaintiff remained in hospital after the accident until 12 November 1999. Upon discharge he stayed with a friend, Mr John Ryan in Perth while recovering from the various surgical procedures. During this initial period the plaintiff was in pain. Mr Ryan did all the cooking and cleaning. The plaintiff told me that when he came out of hospital he could barely walk. He had stitches and staples in his left hip and had a lot of pain in that area. After a few weeks the hip pain resolved.

11 The plaintiff told me that an external fixator was placed over his wrist and wires were inserted. Until the fixator and wires were removed it was necessary to dress the wound. It was difficult for the plaintiff to dress the wound and therefore it was arranged for a Silver Chain nurse to assist him.

12 The wires were removed on 16 December 1999 and the plaintiff then returned to Wyndham. His wrist was still painful and he did not have much movement in it.

13 In about April 2000 the plaintiff undertook a rehabilitation course which lead to a work trial at Marbic Constructions. The plaintiff told me the duties involved were more like those of a cleaner than of a trades' assistant. The work trial continued for about a month. The plaintiff did not want to continue to be employed as a cleaner and therefore left the job. He then obtained employment with a builder. This work was not ongoing and essentially the builder ran out of work. The plaintiff told me that this work was just too heavy for his wrist.

14 In June 2001 he obtained employment with Mobil Oil as a coastal bulk plant operator. This employment involved some forklift driving, moving drums, weeding, spraying and painting. The job was not particularly physical. The plaintiff remained in that employment for about 16 months. The plaintiff told me that if he was doing weeding or anything too repetitive his wrist pain would be aggravated. If he was carrying the weed sprayer around or doing something too heavy it would cause pain in the wrist.

15 When the plaintiff's father died in 2003 he left his employment with Mobil to go on a three month holiday. When he returned from the holiday the plaintiff obtained employment at the Ord Co-op. The plaintiff told me the range of duties varied but were essentially of a light nature.

16 The plaintiff told me that he also worked with other businesses from time to time during 2003. The plaintiff told me that he wanted to finish his apprenticeship. He told me this probably would have been after the contract with the defendant was completed. He said with a trade certificate it is possible to earn a lot more money as a carpenter and it was easier to find work.

17 The plaintiff told me that his wrist is still very weak. Upwards movement of the left wrist was about a quarter of that of the right wrist. The left hand could not be bent below 180 degrees. In his left hand rotation was three quarters of the way both ways, compared to his right hand. He also described and showed to the Court a scar approximately 150 millimetres long over the centre of the palm down under the wrist. There was also some scarring to the hip.

18 The plaintiff told me that he still gets pain frequently in his wrist. On most weekends he goes fishing. He occasionally obtains a prescription for Panadeine Forte. He told me his grip has recovered a lot.

19 The plaintiff saw a number of medical practitioners in relation to the accident. There was no evidence of any inconsistency in presentation or history. The plaintiff was cross examined at length particularly in relation to the content of his curriculum vitae submitted to Kununurra Crane Hire in 2003 and the absence of a reference to non completion of the apprenticeship final assessment. The curriculum vitae was prepared by the plaintiff's brother-in-law. It was approved by the plaintiff. However, I note that in the plaintiff's personal particulars supplied to Kununurra Crane Hire there is no suggestion that the plaintiff had a trade certificate. In my view the absence of a reference to the trade certificate in the curriculum vitae does not in the circumstances affect the favourable impression I formed of the plaintiff's evidence. The plaintiff was honest and truthful in his evidence and generally reliable.

20 The plaintiff was cross examined vigorously in relation to his intentions to return to complete his apprenticeship.

21 He accepted that he may not have completed the assessment immediately after his contractual term with the defendant had expired. He told me that it may have been a year or two before he did complete the assessment. The plaintiff completed his apprenticeship save for the final assessment in 1991. He had taken no steps to complete the assessment by November 1999 when the accident occurred. Whilst I accept that the plaintiff honestly believed that he would complete his apprenticeship assessment, I do not accept based upon the history that this would have occurred. I am also not satisfied that after such an extended period of eight years the plaintiff could have obtained his trade qualification without further study or service.

22 Michael Halliday is an orthopaedic surgeon specialising in hand and upper limb surgery. He first saw the plaintiff on 7 November 1999 at Fremantle Hospital.

23 He told me that the plaintiff had a very severe injury to his left wrist. The small bones in the wrist joint were dislocated. There was a severe fracture through the end of the radius and several small fractures through the small bones of the wrist joint. There was damage to the ligament connecting the scaphoid and the lunate.

24 The plaintiff was taken to theatre on 7 November 1999 by Mr Halliday where a bone graft was harvested from the left iliac crest and used to prevent the articular surface from displacing proximally. The graft was necessary because of the extent of damage to the radius. A plate was placed on top of the wrist and a small screw was inserted into the top of it to keep the graft in place. Another small screw was inserted into the scaphoid to internally fix that bone. Because of the severe swelling of the wound the incision over the top of the wrist was left open, and an external fixator placed across the wrist. Mr Halliday told me that a fixator is a little cage that stabilises the area and enables the wound to be dressed.

25 On 11 November 1999 the wound over the dorsum of the plaintiff's left wrist was closed.

26 On 16 December 1999 the external fixator was removed. On 18 December 1999 2 K wires which had been inserted were removed from the left wrist.

27 Mr Halliday reviewed Mr Midgley on 17 May 2000. He noted that he had 55 degrees of extension but zero degrees of flexion. He also noted that pronation and supination were limited to 70 degrees both ways.

28 In a report of 19 May 2000 Mr Halliday opined that:

"The short and long term prognosis in this gentleman is that he will be left with a permanent disability in his left wrist and there is a possibility that he will have some ongoing pain in the left wrist and this may well limit his capacity for physical work".

29 On 19 May 2000 Mr Halliday considered that it was still too early to determine what degree of loss of movement the plaintiff would have on a permanent basis.

30 On 10 November 2000 Mr Halliday again operated on the plaintiff's left wrist, at which time he removed the plate and screws, and excised scar tissue from the dorsum of the wrist to try and improve the range of flexion. Mr Halliday noted in a report of 20 November 2000 that at the time of surgery he had observed extensive degenerative change in the radiocarpal joint.

31 Mr Halliday reported on 24 November 2004 that the plaintiff had been left with a permanent disability in his left wrist resulting in a 20 per cent loss of function of the left wrist.

32 In his evidence Mr Halliday made it clear that in his view the injury which the plaintiff had sustained was severe. He told me that because of the problems with loss of movement of the wrist there were a lot of restrictions with regard to functional use of the left hand. He did not consider the plaintiff was fit to work as a carpenter. Mr Halliday told me that when he saw the plaintiff in September 2004 an x-ray revealed arthritis in all the joints in the wrist. In his opinion it was quite an advanced form of arthritis in a young working man. In his view there was a 70 to 80 per cent chance that over the next 10 to 15 years a fusion would be required. This was because of increasing pain in the wrist joint. He told me that following a fusion most people will be unable to do light manual work for four to six months.

33 In cross examination Mr Halliday told me the disability was severe. In relation to the arthrodesis the effect of it would be to eliminate pain. Accordingly, there was an increase of function and perhaps the strength of the hand. He agreed that there was an apparent gathering of strength following arthrodesis "because the pain doesn't interfere to cause droppages (sic) or the like". In his view the amount of treatment the patient received from Silver Chain upon his discharge from Fremantle Hospital was excessive.

34 John Richard Suthers is a specialist occupational physician who saw the plaintiff on 15 March 2001 at the request of the solicitors for the defendant. He was called as a witness on behalf of the plaintiff.

35 Mr Suthers made a diagnosis of a serious comminuted fracture to the distal radius of the left wrist, together with significant damage to the articulating surfaces of the bones. In his view the plaintiff had a significant ongoing impairment and disability of the left wrist. He noted that the plaintiff's wrist was essentially pain-free except when used. In his view for someone employed as a labourer, this was a significant issue.

36 Mr Suthers in a report of 15 March 2001 opined that the plaintiff was not fit to return to physical duties as a trades' assistant/labourer. Insofar as future treatment was concerned, Mr Suthers considered it highly likely the plaintiff would require fusion of the left wrist. He told me that a fusion would render the wrist pain free but that there would be a loss of mobility. He assessed a 24 per cent impairment of the wrist, and in the event a fusion was required, this would be increased.

37 Michael Edwards Bowles is a specialist occupational physician who saw the plaintiff on 24 October 2003 at the request of the solicitors for the defendant. His diagnosis was of a fractured distal radius, fractured scaphoid, fractured capitellum, scapho lunate dissociation and possible wrist dislocation.

38 Mr Bowles told me that he assessed the initial injury as being very significant and that there had been a partial recovery. In his view the left wrist complaints are unlikely to change, and there may be gradual deterioration over time.

39 Mr Bowles told me that the plaintiff had a restricted capacity for work by virtue of his impaired function of the left wrist in that there was some loss of function and activity related discomfort. In particular there was a partial incapacity for heavy manual work. He did not consider the plaintiff's current disability interfered with his employment as a casual worker on the wharf or his work as a gardener for the local community club in Wyndham.

40 Mr Bowles did not think an arthrodesis would confer a significant benefit in symptom reduction and it was unlikely to be required in the foreseeable future. In cross examination he told me that for a period of 5 years the pain would not have got to the stage of requiring an arthrodesis. Whether an arthrodesis was required was dependant upon the level of pain being experienced. He told me that generally with more use there will be more discomfort and that the level of pain could vary from time to time. In his report of 4 February 2005 he assessed the plaintiff as having suffered a 20 per cent loss of the left arm below the elbow.

41 Leon Steven North gave evidence that he was working with the plaintiff when the accident occurred. He is a fully qualified carpenter, having completed his apprenticeship in 1977. He was employed as a carpenter by the defendant between 1983 and 1991.

42 On the date of the accident the plaintiff was working with Mr North as his offsider. Mr North saw the plaintiff fall and told me that after the accident the plaintiff was in pain. Mr North gave evidence that he had observed the plaintiff carrying out his employment duties and in his view he was a good worker who could carry out tasks without supervision. Mr North's nett income as a carpenter for the year ended 30 June 1999 was $38,115 and for the year ended 30 June 2000 was $42,494.

43 John William Ryan is an assistant systems controller and has been a friend of the plaintiff for many years. He completed an apprenticeship at the Wyndham Hospital at the same time as the plaintiff.

44 The plaintiff stayed with Mr Ryan for between 5 to 6 weeks following his discharge from hospital and during most of that time, the plaintiff's left arm was bandaged.

45 John Charles Zinner resides in Broome and is a carpenter with 30 years experience. For eight years from 1991 he was employed by the defendant as a carpenter and supervisor. In 2000 he commenced a carpentry business in the Kimberly carrying out maintenance and renovations. He told me that he usually works in his business for 47 or 48 weeks a year. He has one employee, an unqualified carpenter who is paid $35 per hour for a 10 hour per day seven day week. The employee is a qualified shipwright who Mr Zinner described as being unusually well skilled. Mr Zinner told me that whilst there is plenty of work in the Kimberly it fluctuates with demand and when there is a down period the employee would be laid off.

46 Anthony Richard Chaffey lives in Kununurra and is the plaintiff's brother-in-law. He told me that he had encouraged the plaintiff on a number of occasions to complete the assessment necessary to obtain his trade certificate.

47 He told me that since the accident he had noticed a decline in the plaintiff's general fitness and in his ability to use his left hand.

48 In cross examination he told me that in 2003 he assisted the plaintiff in applying for a job at Kununurra Crane Hire. Specifically he prepared the plaintiff's resume. Mr Chaffey was strenuously cross examined about the resume and omission of any reference to the plaintiff not having obtained a trade certificate. Mr Chaffey told me that the non completion of the final assessment was implied because a ticket number was not included and there was no copy of a trade certificate attached.

49 He denied that he deliberately misled Kununurra Crane Hire by implying the plaintiff had a trade certificate.

50 Russell Bruce McDougall carries on business as a builder and lives in Darwin. He has been involved in Housemaster for 20 years. The plaintiff had been employed by the business as a carpenter for between four and five years. Mr McDougall told me that the plaintiff was very capable and had good work ethics. The description of his position was carpenter.

51 Housemaster Developments employed six carpenters and two trade assistants. Carpenters were paid between $30 and $35 per hour. Mr McDougall told me the business generally tried to arrange for his carpenters to be engaged on a subcontract basis. In relation to trade assistants one was paid at the rate of $20 per hour and the other $25. The hourly rate for a hammerhand was between $25 and $30. Mr McDougall told me that a hammerhand is a person who was unqualified, but had acquired knowledge through the industry. He told me that generally carpenters were earning around $1600 a week for at least nine to 10 months of the year.

52 Mr McDougall gave evidence that there was a shortage of carpenters in the Kimberley and the North-West. In cross examination he told me that if the plaintiff was fit enough he would be on a carpenter's wage because he was as good as a carpenter without a ticket. He told me that the $1600 per week was an average gross figure and was dependant upon how many hours were worked.

53 I accept that the plaintiff sustained a significant injury to the left wrist in the accident on 6 November 1999. I accept the injury was as described by Mr Halliday a comminuted distal radial fracture involving the dorsal rim of the radius, together with a fracture through the scaphoid and a fracture through the base of the capitellum. There was also a dislocation of the carpus.

54 The medical evidence was generally not controversial. All witnesses agreed that that the injury was severe. Where there is a difference in view I would prefer the evidence of Mr Halliday to that of the other medical practitioners. Mr Halliday has been an orthopaedic surgeon for many years. His evidence was precise and straightforward. I have no hesitation in accepting his evidence in this case. He was the treating surgeon. As a result of the injury the plaintiff was required to undergo operative procedures on 7 November 1999, 11 November 1999, 14 December 1999, and 17 November 2000.

55 As at the date of the accident, the plaintiff was employed by the defendant as a trade assistant. It was a three month contact and he was in receipt of $1500 gross per week.

56 In this case, the accident having occurred in the course of the plaintiff's employment, regard must be had to the constraints imposed by the provisions of the Workers' Compensation and Rehabilitation Act1981 ("the Act").

57 Section 93F of the Act provides:

"1. Unless an agreement or determination that the degree of disability the worker is not less than 30 per cent is recorded for the purpose of s 93E -

(a) the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability of the maximum amount that may be awarded; and

(b) The maximum amount of damages that may be awarded is an amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30 per cent in degree".

58 The effect of s 93F is that the maximum amount of damages for both pecuniary and non-pecuniary loss that can be awarded for the most extreme case of disability is an amount equivalent to amount A. The relevant prescribed amount is $293,990.

59 The question as to the method of assessment to be adopted in this case was the subject of detailed submissions by counsel for the parties.

60 In Guest v NRMA Insurance Ltd [2002] WADC 115, Viol DCJ concluded that a mathematical calculation was inappropriate. The defendant had submitted in that case that the first step was to determine (or agree) the percentage degree of disability to be ascribed the plaintiff. That figure was then to be divided by 29 or 29.9 to obtain the proportion of amount A to be awarded as damages. His Honour noted this constituted an objective rather than a subjective standard. The plaintiff's submission was that in order to give meaning to the word "proportion" in s 93F(1)(a) of the Act, the impact of both economic and non-economic loss required consideration. His Honour observed (at par 87) that the legislature had elected to use the expression "determined according to the severity of the disability" rather than determined according to the degree of disability. On that basis, his Honour concluded that the plaintiff's suggested approach should be adopted.

61 In Lockyer v Marshall [2004] WADC 243, Groves DCJ adopted the reasoning and interpretation of Viol DCJ in Guest (supra) in relation to s 93F namely that it "suggests some consideration of the overall economic and non-economic consequences to the plaintiff as a result of the accident". I respectfully agree with the analysis and observations of both Groves DCJ in Guest and Viol DCJ in Lockyer.

62 Both counsel in submissions contended that it was appropriate under s 93F to first carry out an assessment of damages in a traditional manner. Whilst the quantum assessed on a traditional basis is of relevance in my view the performance of the assessment provides a guide only and is not determinative. I accept the submission as to the necessity to make a common law assessment and accordingly make the following determinations.

63 The medical evidence establishes that the plaintiff has suffered, as a result of the accident on 6 November 1999, a severe injury to his non-dominant left wrist. He has been hospitalised and had four operative procedures performed on his left arm. He was required to undertake a course of physiotherapy. On Mr Halliday's evidence there was a 70 per cent to 80 per cent chance that over the next 10 to 15 years an arthrodesis will be required.

64 The plaintiff has an injury which has been consistently productive of pain. It is restrictive of his ability to engage in heavy physical activity in the work place. He faces the possibility of further deterioration and surgery. Mr Halliday's view was that the plaintiff had suffered a 20 per cent loss of the left upper limb below the elbow.

65 The plaintiff is now only 32 years of age. He has limited education. His principal interest is fishing which he is still able to engage in. He is restricted in his pursuit of sporting activities. The consequences of the injury to the plaintiff have been serious.

66 In my view the plaintiff would be awarded $60,000 as general damages for past and future pain, suffering, inconvenience and all other matters usually referred to as loss of amenities.

67 The plaintiff pleads in the statement of claim that:

(a) At the time of the accident the plaintiff was employed as a trade's assistant with the defendant earning not less than $1,200 gross or $797.90 nett per week.

(b) As a result of the accident the plaintiff was totally incapacitated for work from 6 November 1991 to June 2001.

(c) in June 2001 the plaintiff secured employment with Mobil earning approximately $550 nett per week.

68 As at the date of accident the plaintiff was in receipt of a weekly gross income of $1,500. The tax applicable to the weekly sum of $1,500 was approximately $500 resulting in a nett income of $1,000.

69 There was no evidence that the plaintiff could or would have continued employment on Cocos Island following the completion of his contractual term. It is therefore necessary to assess what his earning capacity was and how the plaintiff would have exercised the capacity.

70 The defendant submits that the appropriate methodology is to assess the plaintiff's nett average income for the 4.5 year period from 1 July 1995 to 31 December 1999. On that basis a nett figure of $435 representing the plaintiff's pre-accident nett weekly earning capacity is obtained. I do not accept that merely taking an average is appropriate in this case. The plaintiff was young and his income was increasing. The plaintiff's submission is that based on the evidence of Mr Zinner the plaintiff could have continued working in the construction industry earning $25 to $35 per hour as a trades' assistant. The plaintiff submits it is appropriate to apply a weekly nett income figure of $1,115 for a 39 week working year resulting in a nett annual income of $42,284. Whilst the plaintiff was earning $1,500 gross per week at the date of accident, this was for work on Cocos Island and for a short term contract.

71 I accept that as a result of the injury sustained in the accident the plaintiff was unable to complete his three month contract of employment with the defendant and was during that period totally unfit for work. The term of the contract was due to expire at the end of January 2000. Accordingly the plaintiff is entitled to be compensated at the rate of $1,000 per week for 12 weeks.

72 I consider the plaintiff's loss for the period from the date of accident to 31 January 2000 was $12,000 (1).

73 The plaintiff was only 26 years old when the accident occurred. His employment had been primarily in construction work and in the years prior to the accident that had been his principal source of income. Construction work was the most remunerative for him. The plaintiff had only completed year 10 before he commenced his apprenticeship. It is understandable in the circumstances that it took time for him to become established in the workforce. In all the circumstances I accept that following his return from Cocos Island the plaintiff would have returned to employment within the construction industry.

74 The evidence establishes that a trades' assistant in the Kimberley can expect to earn between $20 and $35 per hour. The figure of $35 is the rate being paid by Mr Zinner to one employee. Mr McDougall's evidence was that the hourly rate for a hammerhand was between $25 and $30. The evidence establishes that the plaintiff was a conscientious employee and that there is work available in the Kimberley. I note that in calculating the sum of $42,284 the plaintiff has utilised a 39 week working year. Given the fluctuations which may occur in the demand for employees I consider it reasonable to adopt a working year in the construction industry of 39 weeks equating to approximately 9 months. On that basis and assuming a 70 hour week at $25 per hour for 39 weeks a gross annual income of $68,250 is obtained ($1,312 per week). The tax on that sum is $17,877 ($343 per week), resulting in a nett weekly income of $969 or $50,373.

75 The plaintiff's income tax returns relevantly disclose the following:

76 The plaintiff's nett income to 30 June 1999 was $529 per week. His nett income had been steadily increasing from $273 per week in the year ended 30 June 1997. The evidence of Mr North as to his earnings as a qualified carpenter provides some limited guidance to the level of earnings for the plaintiff in the year ended 30 June 2000. In that financial year Mr North had a nett annual income of $42,494 ($817 per week). The plaintiff as a trades' assistant would have been remunerated at a lower rate than a qualified carpenter.

77 In my view the plaintiff's income would have continued to increase from the 30 June1999. I have found that a trades' assistant could expect to earn on current rates a sum of $969 nett per week. The plaintiff submits that the appropriate rate is $42,484 nett per annum ($817). In my view in the circumstances that sum is reasonable. Further, in my view it would be appropriate to average out equally the increase from the sum of $529 in 1999 to a sum of $817 for the financial year ending 30 June 2004. On that basis the relevant average nett weekly income is increased by approximately $60 per week per annum for each year from 1 July 1999. Applying that sum to the amounts above the relevant nett incomes are:

78 The plaintiff was totally unfit for work from the 31 January 2000 until the 10 June 2001. In this period his loss of earnings was as follows:

1 February 2000

to 30 June 2000 5 months at $30,628 per annum = $12,761(2)

1 July 2000

to 30 June 2001 11 months at $33,748 per annum = $30,935(3)

79 In June 2001 the plaintiff commenced employment at the rate of $550 per week. Thereafter he has engaged in a variety of different forms of employment. He has only been capable of working in positions which did not involve any heavy labouring or manual work. He has had an extended holiday of 3 months in 2003.

80 On that basis in my view the plaintiff's past loss subsequent to 30 June 2001 should be assessed as follows:

(1) 1 July 2001 to 30 June 2002

Expected Income = $36,868 ($709 x 52)

Actual Income = $26,995

Loss = $ 9,873(4)

(2) 1 July 2002 to 30 June 2003

Expected Income = $29,991 ($769 x 52 x .75)

Actual Income = $ 7,386

Loss = $22,605(5)

(3) 1 July 2003 to 30 June 2004

Expected Income = $42,484

Actual Income = $29,464

Loss = $13,020(6)

(4) July 2004 to February 2005

$42,484 x 2/3 = $28,322

Actual = $23,458

Loss = $ 4,864(7)

Total Past Loss = (1)+(2)+(3)+(4)+(5)+(6)+(7) = $106,058

81 I would deduct 15 per cent for contingencies and round the figure down to $90,000.

82 I would therefore assess total past loss of earning capacity in the sum of $90,000.

83 The plaintiff claims damages for impairment of future earning capacity. In order to recover damages for loss of future earning capacity he must establish that his earning capacity has in fact been diminished by reason of the negligently caused injury and the diminution of earning capacity is or may be productive of financial loss - Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

84 Lord Diplock in Paul v Rendell (1981) 34 ALR 569 at 471 expressed the matter of assessment as follows:

"... the assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."

85 In Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 the approach to the assessment of the likelihood of future or potential events occurring was dealt with by the High Court. Deane, Gaudron and McHugh JJ in their joint judgment said at 642-643:

"...When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle [1970] AC 166 at 174; Davies v Taylor [1974] AC 207 at 212, 219; McIntosh v Williams [1979] 2 NSWLR 543 at 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."

86 Brennan and Dawson JJ stated at 639, that the ascertainment of future earning capacity involves an evaluation of possibilities as distinct from establishing a fact as a matter of history. Their Honours said at 639 - 640:

87 "Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past..."

88 The plaintiff has suffered diminution of his earning capacity by reason of the negligently caused injury. He is no longer capable of engaging in employment which requires full use of both upper limbs. He has grown up in Wyndham and many of his past employment positions have been obtained through contacts. The task of determining the extent to which the diminution of earning capacity is or may be productive of financial loss is of necessity, imprecise, involving, as it does, assessment of numerous possibilities. The plaintiff's counsel provided a calculation based upon a loss of $238.40 per week which resulted in a loss of $182,280. In addition a further sum of $15,043.50 was to be added for the loss sustained should the plaintiff be required to undergo an arthrodesis.

89 The evidence was that carpenters are able to earn $1,600 gross per week. In my view the plaintiff's loss of earning capacity is significant. The duties he can perform in a work situation are limited. He has virtually no qualifications. He is unable to engage in the type of employment in which he had the most experience prior to the accident.

90 The plaintiff's draft income tax return for the year ended 30 June 2004 discloses a nett income of $566 per week. The plaintiff is currently in receipt of an income which on an annual basis, and if maintained at current levels, should be $49,128 gross. The tax on that sum is $10,910 resulting in a nett annual amount of $38,218 or a weekly sum of $734. The plaintiff's evidence was that earnings at that rate were unlikely to be maintained. The work is of a sedentary nature but is dependant upon the volume of shipping passing through the wharf. The work is casual and the plaintiff told me that he wants a full time job. Given the casual nature of the work performed on the wharf and the uncertainty surrounding its availability in my view it would be appropriate to assess the plaintiff's current earning capacity at $600 nett per week. On that basis the plaintiff's loss if $217 nett per week ($817 - $600).

91 The plaintiff is now aged 32 years. The work he is precluded from performing is essentially labouring. I consider in the circumstances that given the heavy nature of the work involved future loss of earning capacity should only be calculated to age 55. Based upon a loss of $217 per week and applying a multiplier of 661 (6% multiplier for 23 years) a sum of $143,437 is obtained. A discount for contingencies of 15 per cent results in a sum of $121,921 which I would round to $120,000. In making that discount I am conscious of the evidence as to the plaintiff's capacity but for the accident to perform the duties of a carpenter.

92 In the circumstances I consider a reasonable award for future loss of earning capacity would be $120,000.

93 The defendant submits that the actual amount of tax paid by the defendant on the plaintiff's behalf was $16,405.68. Upon receipt of a judgment a plaintiff must repay, or have deducted, the gross amount of compensation received. The plaintiff will therefore be out of pocket to the extent that he has paid tax on the workers' compensation payments and this tax is recoverable as an item of special damages in a common law damages award pursuant to Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. The plaintiff would in the circumstances be entitled to the sum of $16,405.68.

97 I would allow $7,500 for the cost of future treatment including the arthrodesis and the loss of income the plaintiff would sustain whilst undergoing the procedure and recuperating. The plaintiff also claimed $1,126 in relation to assistance provided to the plaintiff to dress the wound after his discharge from hospital. The evidence of Mr Halliday was that the amount was in the circumstances unreasonable. I accept that evidence and would make no allowance in relation thereto.

98 In summary therefore an assessment of damages in the traditional way would in my view result in an award as follows:

Loss of amenities $ 60,000.00

Past Loss of Earning Capacity $ 90,000.00

Future Loss of Earning Capacity $120,000.00

Fox v Wood $ 16,405.68

Past Medical Treatment $ 13,673.00

Past Rehabilitation $ 14,533.69

Future treatment $ 7,500.00

$322,112.37

99 Having determined the quantum of the plaintiff's damages if assessed on a traditional common law basis it is still necessary for a determination to be made as to the severity of the disability. I will not repeat all of the findings above.

100 The injury, as all of the medical practitioners have stated, was of a severe nature. The plaintiff is now only 32 years of age and was 27 years old at the date of accident. He has had four operative procedures performed on his arm. He has experienced significant pain. The current level of pain is not too bad. The plaintiff has restricted movement and loss of strength in his wrist.

101 He is left with modest scarring to his left arm and minor scarring to his hip.

102 The plaintiff was unable to return to employment until June 2001 a period of just over 18 months. His earning capacity has been significantly affected insofar as his performance of heavy work is concerned. He has limited educational qualifications. The plaintiff was well-regarded as an employee and capable of working without supervision. He is unfit to perform any heavy physical or manual labour and is unable to work in the construction industry as a trades assistant or carpenter. Because of the problems with loss of movement of the wrist the plaintiff has restrictions with regard to functional use of the left hand. The range of employment opportunities available to the plaintiff has been reduced. His ability to compete for employment has been compromised.

103 I take all of the above factors into account and also take into account the quantum of the assessment likely upon a traditional common law approach. I am satisfied that the "severity of the disability" having regard to the overall economic and non-economic consequences to the plaintiff puts the plaintiff in "a most extreme case of a disability of less than 30 per cent". On this basis the plaintiff will be entitled to the maximum allowed under the Act.

104 There should accordingly be judgment for the plaintiff of $293,990.

105 The plaintiff is entitled to judgment in the sum of $293,990.