Damages - Loss of earning capacity - Deduction for contingencies - Correct deduction for income tax - Turns on own facts

Award of damages increased from $540,781 to $606,781

Astley v Austrust Ltd [1999] HCA 6

Bevan Investments Ltd v Blackhall & Struthers (No 2) [1973] 2 NZLR 45

De Vries v Australian National Railways Commission (1993) 177 CLR 472

Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7194; 3 November 1989

Giner v Public Trustee (1991) 105 FLR 410

Green v Building Scene Ltd & Anor [1994] PIQR (CA) 259

Lawson v Charles Hull Contracting Co Pty Ltd, unreported; FCt SCt of WA; Library No 980561; 25 September 1998

Lyons & Anor v Jandon Constructions (A firm) & Ors, unreported; SCt of WA; Library No 980394; 20 July 1998

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Wade v Allsop (1976) 10 ALR 353

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Westralian Farmers Co-operative Ltd v Bunce, unreported; FCt SCt of WA; Library No 7691; 31 May 1989

1 TEMPLEMAN J: I have read the reasons to be published by Miller J. I am in agreement with those reasons and have nothing further to add.

2 MILLER J: This is an appeal from a decision of Healy DCJ delivered in the District Court at Perth on 14 May 1999 when the learned Judge found for the respondent in an action for damages for personal injury alleged to have been sustained by the respondent on 17 January 1997 at his place of work on the barge Gulf Explorer. The appellant operated the Gulf Explorer under the trading name Total Marine, drilling for diamonds in the Cambridge Gulf. The respondent contended in essence that the appellant had failed to provide a safe place of work, which is but one aspect of the employer's duty to take reasonable care for the safety of his employee: Fleming, John G "The Law of Torts" 9th ed p 561 et seq.

3 The evidence at trial established that the respondent, whilst entering the change room/smoking room on a three-level island on the barge had been required to open a sea door and step over a door threshold some 205 mm above the outside flooring. In so doing the respondent led with his right leg and as his right leg came into contact with the interior floor of the room it slipped from beneath him, causing him to "do the splits" and sustaining injury to his back.

4 The trial Judge found that the floor within the room into which the respondent was stepping was wet, probably as a result of water being brought in on the boots of workmen and/or water blowing in through the open door, and that the surface of the floor became slippery when wet so as to constitute a hazard to workmen entering the room. His Honour found that there was a simple and inexpensive way of obviating the hazard which thus existed, namely roughening of the inside floor surface. His Honour's conclusion was that the risk of injury to the respondent was foreseeable to the appellant and there were appropriate means of obviating that risk, with the result that the appellant had breached the duty of care it owed as employer to its employee. The trial Judge also found that the respondent was guilty of contributory negligence in that he knew the floor within the room to be slippery when wet and knew that it was wet on the day in question, so that he should have taken care for his own safety. By failing to take care in placing his leading foot or ensuring that he had a firm grip on the door to steady himself in case he slipped, he was held to be contributorily negligent to the extent of 20 per cent. The trial Judge assessed the respondent's entitlement to damages at $675,977, which, when reduced by 20 per cent for contributory negligence, left a net judgment of $540,781.

5 The appellant appeals against the trial Judge's conclusion that the appellant breached its duty of care to the respondent and appeals against the assessment of damages in relation to both past and future loss of earning capacity. The respondent cross-appeals against the finding of contributory negligence, contending that it was not open on the evidence for such a finding to have been made and contends that the allowances made for both past and future loss of earning capacity were inadequate.

6 The essential facts found by the trial Judge were as follows. On the day in question the respondent had been working the midnight to noon shift and somewhere between 11.30 am and 12.30 pm had gone to the change room/smoking room ("the room"). He had removed his workboots and put on reef sandals. Workboots were not to be worn in any accommodation/office areas on the barge, but the room was apparently not such an area. To keep the room clean janitors were called upon the clean it four times a shift, with particular emphasis upon ensuring that it was clean when shifts were to be changed. However, when the door to the room was opened, water was prone to fall onto the floor directly below the door. This was particularly so when it had rained, as on the respondent's evidence it had on the day in question.

7 The respondent's explanation as to what happened was that approaching the sea door he opened it with his right hand, then changed hands to hold it with his left and stepped over the threshold into the room, whereupon once his foot contacted the floor surface it slipped from under him with the result that he "just did the splits" and immediately felt severe back pain. The respondent contended that there had been a puddle of water about two to three feet in diameter at the base of the door within the room, but the learned Judge concluded that the respondent had reconstructed his recollection about the amount of water on the floor and did not accept that a pool or puddle of two to three feet in diameter existed, but rather only that the interior floor was wet. In this respect the learned Judge had reservations about the respondent's testimony, but accepted the evidence of a witness named Allan that the floor was indeed wet. His Honour also found that on the balance of probability the respondent was carrying a cup of coffee as he tried to enter the room (something denied by the respondent) and that the carrying of that cup may have distracted him as he entered the door. There was other evidence that the flooring in cabins on the vessel generally could become wet in consequence of rain and that extra care was needed upon entering rooms such as that into which the respondent stepped.

8 The trial Judge considered expert evidence which dealt primarily with the Australian/New Zealand Standard (AS/NSZ 3661.1: 1993) dealing with slip-resistance of pedestrian surfaces. Clause 5.1.2 of that Standard requires that the coefficient of friction of dry horizontal surfaces when tested in accordance with a method set out in an appendix shall have a mean coefficient of friction of not less than 0.4 and no specimen in that sample shall be less than 0.35. A witness named van der Meer (who used a method different from that contained within the Standard) measured the coefficient of friction of the floor when dry at 0.4 and when wet at 0.34. After mopping the wet floor it was measured at 0.317. A Dr Chew who used a method of testing recommended by the Standard found on wet testing that the coefficient of friction was an average of 0.40, although the coefficient of friction he was measuring was the dynamic coefficient whereas van der Meer had measured the static coefficient. Van der Meer, who had been called by the respondent, expressed the view that floors on barges or any marine vessels usually had an admixture of sand to roughen the surface and provide resistance to a person slipping. In all his experience he had never seen a floor on a barge or other marine vessel as existed on the Gulf Explorer. The position taken by Dr Chew, who was called by the appellant, was that the risk of slipping on the floor in the room when it was dry and clean would be "very low" and when wet would be "low".

9 The trial Judge concluded that the only two ways in which water could have gone onto the floor were from the soles of boots of fellow workers entering the room through the door and/or by rain falling or being blown onto the floor when the door was opened. He did not accept that there was a pool of water from either of these sources, but found on the evidence that there had been showers on the day in question and the combination of water from boots and/or from being blown in the open door caused the floor to be wet. His Honour did not consider the Standard to be determinative of whether the appellant had discharged the duty of care to the respondent, particularly as the appellant had not suggested that it had tested the floor prior to the accident and decided that it was safe. His Honour's conclusion was that although the level provided by the Standard might be quite safe in some pedestrian areas it was unsafe on this barge on the inside floor into which people had to step to enter the room.

10 His Honour found there was no evidence led by the appellant which contradicted the evidence of three witnesses that the surface was slippery when wet and concluded that it should have been known to the appellant that the floor presented a hazard when wet and that it could become wet and slippery in that particular area. His Honour further found that the means of obviating the risk were simple and inexpensive in that sand mixed with resin could be used as an adhesive overlay. The risk of injury to the respondent was found to have been foreseeable to the appellant and it was also found that there were appropriate means of obviating that risk.

11 The appellant's challenge to the learned trial Judge's decision on the issue of liability relies on two primary contentions:

(a) the trial Judge's conclusion that the floor was wet at the time of the respondent's accident was against the weight of the evidence;

(b) compliance with the coefficient of friction set out in the Australian Standard provided evidence that the appellant had discharged his duty of care to provide a safe place of work for the respondent.

In relation to the state of the floor, the appellant points to a number of contradictions in the evidence. The respondent himself had given evidence that there was a pool of water two to three feet in diameter on the floor, but the witness Allan had stated that there was only some water on the floor, offering the explanation that water could have come in through on the boots of workmen or from a dripping coffee urn which was mounted on a table inside the door but some distance from it. The appellant complains that the trial Judge did not accept the respondent's evidence in relation to the pool of water but made no finding as to how much water was on the floor or whether more or less water affected the coefficient of friction. It also complains that the trial Judge found against Allan on the issue of credibility because of his failure to recollect the respondent carrying a cup of coffee. It further contends that the respondent's account of the circumstances of the accident given to a Dr La Grange a month after the accident was not the subject of reference by the learned Judge and yet according to Dr La Grange the respondent had told him on 19 February 1997 that the floor inside was dry, although he (the respondent) had been coming in from outside where it was wet (raining). In cross-examination this had been put to the respondent who had denied absolutely that he had given such a history to Dr La Grange, contending that it was exactly the opposite of what he had told him. At trial there was some cross-examination of Dr La Grange as to whether the doctor had asked the respondent whether the floor in the "break room" was dry, in answer to which the respondent had answered that it was but outside it was wet - meaning within the room as a whole but outside the break room itself, there being an area between the sea door and the break room. The exchange between counsel and Dr La Grange was as follows:

I suggest that what he said to you is that the floor inside the break room was dry but the floor outside the break room at the foot of the sea door was wet.

HEALY DCJ: Yes, but is it at the foot of the sea door inside or outside?

BRADLEY, MR: Inside. The floor inside the sea door but outside the break room was wet?---I understand. I don't know what's outside the sea door. All I know is that he said he went into a dry area by stepping through the sea door. What's on the other side of the door I didn't specifically indicate but what was outside was wet due to rain. Now, what actually is outside on the other side of the sea door, I'm not sure.

But your note says, "After a pair of reef sandals, stepping over a sea door, the threshold, carrying a cup of coffee, wearing jeans, a pair of reef sandals, into break room"?---Yes.

"Floor dry inside but coming in from outside where was wet"? ---Correct.

Now, could it be the case that you asked him, "Was the floor in the break room dry?"---Could it be that I asked him? Yes, it could be.

It could well be that you asked him, "Was the floor in the break room dry?" and he answered, "Yes, but outside it was wet"? ---Yes, it could be. I don't know the exact phraseology I used at the time.

Because it's impossible now to recall the questions that were asked as you asked them?---Exactly, yes."

The appellant complains that the trial Judge made no or no adequate reference to the issue of what it was that the respondent had said to Dr La Grange and how it impacted upon the central issue in the case, namely the state of the floor immediately within the room by the sea door. The appellant goes so far as to contend that if the doctor's note was correct, and it was the case that the respondent had said that the floor was dry, it would follow that the respondent's case should have failed.

12 This submission is misconceived, as the only one to which the evidence of Dr La Grange's note could have been put was by way of prior inconsistent statement of the respondent. The note was not, and could not be, evidence of the fact that the floor was dry. In any event, the learned Judge did make reference to the question of what it was that the respondent had told Dr La Grange. His Honour recited in his reasons the fact that the respondent had not told any of the doctors (including Dr La Grange) of water at the base of the door, nor had he stated this fact in a claim form signed in January 1997. It is true that no conclusion was reached by the learned Judge in relation to this aspect of the matter, but no conclusion was called for. The trial Judge found for a number of reasons that he did not accept in its entirety the evidence of the respondent. Further, his Honour independently concluded from the evidence of the respondent and from the witness Allan that the floor of the room inside the door was indeed wet on the day in question. By necessary inference, his Honour concluded that the note of Dr La Grange was not determinative of the issue one way or the other. There were indeed a number of reasons why the learned Judge may have taken this view. The first was that the note was not evidence. The second was he may simply have been unable to resolve the difference between the testimony of the respondent and that of Dr La Grange as to exactly what it was that was said. The third was that it may have been that there was some confusion on Dr La Grange's part about the particular area which the respondent was saying was dry. The appellant misapprehends the effect of cases cited by its counsel about the need for a trial Judge to have regard to "a strong body of evidence" and not to put it aside without explanation. Sun Alliance Insurance v Massoud [1989] VicRp 2; (1989) VR 8 at 18 was a case in which the trial Judge failed to reveal his reasoning process, relied on at least one irrelevant matter, and generally failed to give adequate reasons. Here, the only issue was whether the respondent's credibility was shaken by the different description of the state of the floor inside the door recorded by Dr La Grange in his notes taken about one month after the accident. As it was, the learned Judge was dissatisfied with various aspects of the respondent's testimony. He did not find him to be accurate in his recollection about the amount of water on the floor, but independently found that there was sufficient evidence to establish that the floor was wet. A finding against the respondent in relation to the description he gave of the quantity of water on the floor was not fatal to the respondent's case. The trial Judge was entitled to accept the evidence of Allan that the floor was wet. It was he who saw the witnesses and he who thereby had true advantages in fact finding (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306 per Kirby J at 330). True it is that conclusions of the trial Judge on the credibility of witnesses does not represent an end to the matter. In many appeals credibility findings are far from conclusive of the proper outcome of the entire trial and hence the appeal, numerous examples of which are given in State Rail Authority of New South Wales (supra) per Kirby J at 331. However, in this case the trial Judge was entitled to conclude that on all the evidence the floor of the room within and behind the sea door was wet. The fact that Dr La Grange may have made a note that the respondent told him a month after the accident that it was dry (whether that was the particular spot in question or not) was not evidence as to the fact, and was not fatal to the learned Judge's conclusion in that respect.

13 The evidence of Allan, accepted by the learned Judge, was in the following terms:

"Can you tell his Honour in your own words what you say happen---He opened the sea door, stepped through the sea door and then did the splits. Obviously he slipped on the floor there, sort of did the splits, corrected himself and reached for his back, and he said, "Oh geez, I've just done my back," and, yeah, that's pretty well what happened.

Did you have a look at the floor?---Yes, the floor was like - the floor was wet from either the rain coming in through people accessing the coffee shop or there was an urn in the coffee shop which had been continually dripping, so, yeah, the floor was wet.

Was it uncommon or common for water to come in if it was raining as the door was opened?---Fairly common. There was nothing - there was no awning over the door or anything like that. It's just a flat wall and once the door was open, if it's raining, yeah, rain will come in, plus you will always get excess water on your boots coming through the door.

What type of floor surface was it?---Very, very smooth floor. I couldn't tell you though the compound of the floor itself but it was very - it was very shiny, yeah. It can be very slippery, given a bit of water on there, definitely."

14 In cross-examination, Allan was adamant that what he saw on the floor was not coffee. I can find no basis upon which it could be said that the trial Judge was in error in reaching the conclusion he did. Nor, in my view, is the trial Judge's conclusion necessarily wrong because there was a failure on the respondent's part to mention the wet state of the floor to other doctors or in his accident claim form. These were all matters to be weighed up by the learned Judge. At the end of the day it was for him to reach a finding as to whether the floor was or was not wet. This he did by acceptance of the evidence of Allan to which I have referred. It would in my view be wrong for this Court to rule that he was disentitled so to do.

15 The second primary contention of the appellant is that because the state of the floor behind the sea door complied with the minimum safe standard set out in the Australian Standard it was unreasonable of the learned Judge to conclude that the floor was unsafe on the day in question. Because of compliance with the Standard it is contended that it cannot be the case that the appellant had failed to take reasonable care to provide a safe place of work for the respondent. The appellant argues that to find to the contrary is to find that a surface which has been certified as within the Standard and therefore safe, poses an unreasonable risk to the appellant's employees.

16 The essential complaint of the appellant is thus that the learned Judge had little or no regard the Australian Standard when formulating his reasons in the case. His Honour did, however, review in detail the testimony of each of van der Meer and Dr Chew and it cannot be suggested that he did not understand it. His Honour's conclusion was that the standard was not determinative of whether the appellant had discharged its duty of care to the respondent. He added:

"There was no evidence that the defendant had tested the floor prior to the accident and decided that it was safe.

In my opinion the level provided by the Standard might be quite safe in some pedestrian areas, but it was unsafe on this barge on the inside of the door where people had to step to enter the room. No evidence was led by the defendant to contradict the evidence of Mr Shaw, Mr Allan and Mr Dessent that the surface was slippery when wet. It should have been known to the defendant that the floor presented a hazard when it was wet and that it could become wet and slippery in the area of the door."

17 It can be accepted that the Australian Standard, like the British Standard, represents "the consensus of professional opinion and practical experience as to the sensible safe precautions" (Ward v The Ritz Hotel (London) Ltd (1992) 1 PIQR 315 at 327), but in the end the learned Judge was entitled to have regard to the evidence which related to the Australian Standard and to conclude that whilst the level provided by the Standard "might be quite safe in some pedestrian areas" it might nevertheless be unsafe (as indeed it was found to be) on the barge inside a door where people had to step to enter a room. His Honour was clearly impressed by the evidence of van der Meer that in all his experience he had never seen a floor on a barge or any other marine vessel similar to that which existed in the room on the Gulf Explorer. The full passage from the testimony of van der Meer was as follows:

"What did you observe the floor surface in the entrance area to the smoko room to be comprised of?---It comprised a highly resilient epoxy type of floor, very hard and very smooth. Usually these floors are poured onto a surface. They are two-part epoxy liquid. They pour them onto the surface. They are self-levelling, like water, and they go hard to form a highly high-wearing, resilient type of surface, easily cleanable.

In your experience, that type of floor surface, have you experienced that on a barge previously?---No, never. No, all the surfaces I have ever experienced on barges are highly profiled surfaces with a high surface area. This one is highly unusual. I have never seen it before on any marine vessel, barge, ship, yacht. I have never seen a floor like that.

When you say generally they are a highly profiled surface, what do you mean by that?---Well, like sandpaper, sandpaper is a profile material. They are very rough. Usually it's an epoxy surface because it's resilient to salt and ultraviolet and also it's got sand thrown into it and the sand gives you the profile, like sandpaper. If you run your hand along a smooth piece of paper and run your hand alongside a piece of sandpaper alongside it, the sandpaper gives your hand a lot more resistance when you slide your hand across it and the same thing with these floors. They are designed to be profiled, like sandpaper, to give you resistance to slipping and sliding."

18 It was also telling that Dr Chew expressed the opinion that the risk of slipping when the floor was dry and clean would be "very low" and when wet would be "low". This latter opinion left open the conclusion that there was a risk of injury that was foreseeable, in the sense that it was not "far fetched or fanciful": see Wyong Shire Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 per Mason J at 47.

19 Whatever the evidence in relation to the Australian/New Zealand Standard for "slip resistance of pedestrian surfaces" the fact remains that there was evidence before the learned Judge that the floor surface behind the sea door in the room in question was highly unusual for a sea-going vessel. This being so, the learned Judge was entitled to conclude that the level provided by the Standard might be quite safe in some pedestrian areas but unsafe on the barge in the area where the respondent slipped and fell. As his Honour found, nothing could have been easier than to obviate the risk identified by van der Meer by mixing sand with resin or (as suggested by Dr Chew) by roughening the surface and putting on an adhesive with rough surfaces or an overlay of material rougher than that on the surface of the floor. What Dr Chew said was that in certain industrial scenarios smooth concrete surfaces which are slippery, and which do not comply with the wet requirement of the Australian Standard, are treated by the addition of adhesive with rough surfaces or by an overlay of material rougher than concrete. What the learned Judge did in this case was to decide that irrespective of the Australian Standard, the appellant owed a duty to the respondent to eliminate the potential hazard which was posed to the respondent and to other workers by a wet floor within the room behind the sea door. In Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 308 - 309, Mason, Wilson and Dawson JJ put the need of employers to adjust to changing times and conditions in considering the safety of their employees in the following terms:

"... it is undoubtedly true, as McHugh JA said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ said in McLean v Tedman (1985) 155 CLR at p 313: 'Accident prevention is unquestionably one of the modern responsibilities of an employer'."

In my view, the learned trial Judge's finding on the unsafe nature of the flooring in question was open and reasonable in all the circumstances.

20 The learned Judge considered that the respondent was guilty of contributory negligence because he knew that the floor in question was slippery when wet. He said:

"If one accepts his evidence that the floor was wet on this day then he should have taken care for his own safety. It is not a case where an accident happened through momentary inattention. Mr Shaw was well aware he was going into an area where he well might slip. He should have taken care in placing his leading foot or ensured that he had a firm grip on the door to steady himself in case he did slip. In my opinion whilst the defendant was to blame, his damages should be reduced by 20 per cent for his own contribution. That percentage would have been higher if I had found that the floor was as wet as Mr Shaw claimed."

21 The respondent appeals against the finding of contributory negligence on the basis that the conclusion of the learned Judge was not open on the evidence and was wrong in law, primarily because the finding that the respondent should have taken care in placing his leading foot or ensured that he had a firm grip on the door to steady himself in case he slipped amounted to a mis-comprehension of the evidence, it being the case that the respondent did maintain a grip on the sea door as he made his entry and thereby prevented a complete fall, and there was no evidence that the respondent did not take care in placing his leading foot on the floor. The respondent adds by way of grounds of appeal that counsel for the appellant did not cross-examine the respondent on the issue of contributory negligence, but the defence filed on behalf of the appellant clearly put contributory negligence in issue, and whether or not the respondent was cross-examined on it the learned Judge was in my view obliged to deal with that issue.

22 In my view the respondent misapprehends the essence of the learned Judge's finding. What his Honour concluded was that the respondent knew that the area into which he was going was one where he might slip. This was clear from the respondent's evidence when he said that making entry through the sea door when the floor was wet required care because it was slippery. He said he was well aware when he put his foot down on other occasions that his foot would move from under him (slide) as he entered the room. In relation to what he did on the day in question he said that he had opened the sea door with his right hand, changed to his left and stepped in. Once his foot contacted the floor surface it slipped from under him and caused him to do the splits. He did, however, catch himself and avoided falling all the way down. I have already pointed out that the trial Judge found, on the balance of probabilities, that the respondent was carrying a cup of coffee as he tried to enter the room. That was a conclusion which the trial Judge was entitled to reach. That conclusion being the fact, it is obvious that the respondent put himself in difficulty in endeavouring to enter the room in circumstances where he had one hand free to hold the door, one holding a cup of coffee, and a slippery surface (as he well knew) onto which he was placing his right foot. The conclusion that he was guilty of contributory negligence was clearly open. Reference by the trial Judge to the accident occurring otherwise than through momentary inattention is clearly a reference to the passage of Windeyer J in Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37 where his Honour said:

"When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstance, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man."

Having appreciated the distinction between an accident caused by momentary inattention and one caused by the want of care for one's own safety, the trial Judge clearly found the respondent to have failed to take care for his own safety and assessed the level of contributory negligence at a very modest 20 per cent. In my view, there is no basis upon which the cross-appeal on the issue of contributory negligence can succeed.

23 The respondent suffered a major back injury in the accident. It was found by the learned Judge that in consequence of this disability the respondent could not return to his pre-accident work or indeed any work at sea, or any work which involved physical labour. The medical evidence established that he was fit to do work of a sedentary nature only. The appellant in its grounds of appeal contends that in allowing past loss of earning capacity the learned Judge should have taken into account the respondent's retained earning capacity during the period before trial, and in assessing future loss of earning capacity the trial Judge erred in a discount of only 30 per cent, it being argued that an overall discount of 60 per cent to incorporate residual earning capacity and contingencies would have been appropriate.

24 In assessing past loss of earning capacity the learned Judge calculated from the respondent's income tax returns that he had averaged $95,000 per annum gross between 1993 and 1996. This he converted to a net weekly income of $975. The appellant questions the source of his Honour's calculations pointing out that the gross earnings for each of the years 1993 - 1996 were respectively $92,778, $97,838 and $76,008, an average of $88,874. On the appellant's figures, the average net weekly income of the respondent over the three years 1993 - 1996 was $1017 per week. His Honour calculated a total of $116,500 for past loss of earning capacity and added to it the amount of tax deducted from workers' compensation payment in accordance with the decision in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438, which was entirely appropriate. This made a total of $154,658 which the trial judge rounded off at $150,040 to take into account the contingency that there may have been some unemployment after the respondent's contract with the appellant finished in April 1997. No interest was allowed for the same reason.

25 The respondent contends that a discount on past economic loss was called for, particularly by reason on the fact that the neuro-surgeon, Mr George T Wong, had by report of 2 February 1998 expressed the view that the respondent should then have started vocational rehabilitation with a view to getting into some type of office work. Reference to the medical reports shows that Mr Wong reported again on 30 March 1998 that the respondent had a good chance of returning to full-time work doing lighter office type duties for which he was then being retrained. On 30 March 1998 Mr Wong spoke of "the plan" being to retrain the respondent for office work but by 12 January 1999 Mr Wong's report indicated that the respondent had tried to go back to work on a work trial but could not work full-time. On 15 February 1999 Dr Andrew Harper, an occupational physician, declared the respondent permanently unfit for employment as a barge foreman, for working at sea and doing physical labour, but considered him capable of part-time work of a sedentary nature, with his best opportunity for work being to do staggered hours through self-employment. The respondent had apparently told Dr Harper that he had endeavoured to do a computer course but was unable to concentrate and had discontinued it and his work interest was to go into a small business in which he could share the work with his wife. Dr John R Suthers, another occupational physician, reported on the 19 February 1999 that the respondent's work trial and rehabilitation process had been brought to a halt during the preceding eight months but that it was reasonable for him to participate in a work trial. He said:

"I believe that he could participate in a work trial and reach full-time normal duties, such as that at Bunnings, within a month. While I acknowledge that he may complain of back pain during this time I do not believe that in this context the pain is contra-indication to work.

I note that Mr Shaw is seriously considering, when all this is resolved, to pursue self employment in a newsagency, small shop or as a safety officer or indeed as a rigging consultant. He remains somewhat pessimistic that he will ever get any better. He believes that the ongoing pain may be related to the possible scarring around the surgical sites.

In my opinion Mr Shaw will have a good long term prognosis. From the level of non organic back pain he demonstrated today, I remain confident that his condition will almost certainly resolve to the point that he will be a fully functional member of society again. Indeed while he may not be considered fit to work on an off shore oil operation he will, in my opinion, recover sufficiently to work gainfully on shore."

26 The cross-examination of Mr Wong at trial was centred upon the respondent's prognosis for further back degeneration and its effect upon work had the accident never occurred. Dr Harper gave evidence at trial. He was questioned about what he meant by "staggered hours" of work and he said he used those words in contrast to a person who was employed to work continuously between 9.00 am and 12.00 pm or 9.00 am and 4.00 pm apart from standard morning tea breaks and the lunch hour. The respondent (Dr Harper said) required to take more breaks more often with longer breaks than the standard morning tea or lunchtime break so that he could determine for himself the length of time that he could work at a stretch and then if necessary take a break for two hours. It was obviously for this reason that Dr Harper favoured self-employment for the respondent, expressing the view in evidence that if he could get some sedentary or administrative type of employment relating to construction it would be a field in which he might be able to succeed. Again, much was made in cross-examination of Dr Harper of what the respondent's back condition would have been had the accident never occurred. It was never put that he should actually be working and working in a specific field of endeavour at the date of trial.

27 I interpret the medical evidence, both in the form of reports and in testimony before the learned Judge, to be that at best the respondent might be able to succeed in self-employment where he can regulate the hours that he is called upon to work and in a field in which he has some degree of familiarity. There was no evidence led in relation to the availability of that form of work. It therefore seems to me that it is fruitless for the appellant to suggest that there should have been some greater deduction for contingencies in relation to past loss of earning capacity.

28 When it came to future loss of earning capacity the trial Judge pointed out that the respondent had in his work trial at Bunnings found his symptoms aggravated by standing. He had recently undertaken a work trial as an estimator with Total Marine but the respondent considered himself unqualified to prepare the estimate that was sought. In point of fact it appears that there was some confusion about what it was exactly that the respondent was required to do, the work apparently being to draw up a plan for refurbishment of a houseboat. The trial Judge's view was that it was too early to give any opinion as to the respondent's suitability for that work. The trial Judge took notice of the fact that wage rates for a shop assistant and schedule-estimator varied between $450 per week in the case of the former and $505 per week in the case of the latter. His Honour considered these rates gave some sort of guide as to what the respondent might earn if he was to obtain a job in those fields. His Honour then took the starting figure of $95,000 gross per annum as an indication of the respondent's pre-accident earning capacity saying that this was "as good a base figure as any". His Honour calculated the net weekly earnings on $95,000 gross per annum to be $975 per week and by extrapolation of that sum using the appropriate multiplier on the six per cent tables came to a figure of $630,825, to which superannuation contributions of $60,000 were added making a total of $690,825. This figure was discounted for two reasons, first for the contingency that the respondent may not have been able to continue to earn high sums of money with increasing age and with wear and tear on his back (which had made it self felt before the accident) and secondly because he had a retained earning capacity. Taking those factors into account the trial Judge discounted the figure of $690,825 by 30 per cent to produce $483,577. This the appellant says was an inadequate deduction for contingencies. However, in my view, the matter was very much one of judgment. I have already pointed out that the respondent's future capacity to work was very much an unknown quantity. It is true that there was evidence that he had pre-existing back problems which in the course of time and irrespective of the accident would have made themselves apparent and may have impacted upon his earning capacity in any event. Dr Wong was cross-examined at length about the subject and expressed the view that everybody has degenerative changes such as the respondent had pre-accident. Degeneration of the (L) 4 - 5 and (L) 5 level was said to be common and the doctor said:

"Yes, but of the things I have difficulty with is we have so many people running around the city with degenerated spine. Do we then say to them, 'You can't do heavy work. You will rupture a disc if you're not careful.' If that occurs no-one will be working because we all have degenerated spines. This is really what I'm trying to say. So whatever happened to him, he certainly jarred his back, he ruptured his disc at that occasion, you know, that's all I can say, but whether he will definitely rupture it or not - I think that's something I can't predict, because we know that - I have degenerated spine. I'm pretty sure if someone x-rayed my back, it's very bad. I'm completely asymptomatic. Will I ever rupture my disc? I don't know. I may do tomorrow. I may wake up tomorrow with sciatica. I may do a lot of other types of lifting in my garden and things and never run into trouble. I don't know."

This in my view was a succinct summary of the unknown factor of whether the respondent would, irrespective of the accident, have in the course of time come to a point where he suffered some sort of back disability which made him incapable of work.

29 Substantial discounts for contingencies have been discouraged by this Court over a number of years (see for example Black v Motor Vehicle Insurance Trust (1986) WAR 32; Thomas v O'Shea (1989) A Tort Rep 80-251; Bowen v Tutte (1990) A Tort Rep 81-043). What was said about contingencies by Windeyer J in Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 (at 543 - 544) remains as true today as it did nearly 40 years ago:

"It is a mistake to suppose that it necessarily involves a 'scaling down'. What it involves depends, not on arithmetic, but on considering what the future may have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid, he might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these 'contingencies' or the 'vicissitudes of life' as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. ... Moreover, the generalisation that there must be a 'scaling down' for contingencies seems mistaken. All 'contingencies' are not adverse: all 'vicissitudes' are not harmful. A particular plaintiff might have had prospects of chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune! Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad."

It follows that it was by no means a matter of arithmetic for the trial Judge in the present case to fix upon an appropriate deduction for contingencies. The deduction made (30 per cent in total) seems to me to have been an entirely appropriate assessment. Given the facts of the case to which I have referred, a deduction of 60 per cent to account for retained earning capacity and normal contingencies (as advanced by the appellant in its grounds of appeal) would be manifestly excessive.

30 In his cross-appeal the respondent submits that the learned Judge misapprehended the figure of net weekly earnings and erred in the calculation of both past and future loss of earning capacity. The net weekly earnings are said to properly be $1120.68 per week and not $975 per week. The basis upon which the respondent submits that the calculations should have been made is as follows:

(a) Such loss should have been calculated at $1,120.68 net per week (being the net weekly equivalent of $95,000 gross per annum) and not at $975 net per week as determined by the Learned Trial Judge.

(c) Interest should have been awarded on uncompensated past loss pursuant to Section 32 of the Supreme Court Act.

31 In relation to past economic loss I have indicated that the learned Judge rounded off loss at a figure of $150,000, "absorbing interest" in so doing. Clearly his Honour had in mind a number of deductions for contingencies.

32 The respondent submitted at the hearing of the appeal a comparative schedule, which reveals that the difference between the trial Judge's account and that which the respondent advances as the correct one is some $84,390.

33 It does appear that the trial Judge's figure of $975 per week net is an error, as the schedule of income tax weekly rate instalments issued by the Australian Tax Office and effective for payments made after 1 July 1998 (which we were assured was tendered to the trial Judge) reveals that the correct figure (assuming the instalments to be based on the column dealing with the tax free threshold and no leave loading) should have been $1120.68. Just where the trial Judge got the figure of $975 is unknown.

34 The respondent's calculations fail however to take into account a deduction of 30 per cent for contingencies allowed by the trial Judge on past loss of earning capacity, and they allow lost superannuation benefits without recourse to any deduction for contingencies. Adjustments for each of these leaves a difference between the trial Judge's assessment and that proposed by the respondent of some $82,467 before apportionment, or $66,000 after apportionment. The result is that the award should be increased by $66,000 to $606,781.

35 McKECHNIE J: I agree with the reasons for judgment of Miller J and have nothing further to add.