McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315; Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37, referred to.

Damages - Measure and remoteness of damage in actions for tort - Measure of damages - Personal injuries - Loss of earnings and earning capacity - Particular circumstances - Worker briefly in employment far more remunerative than previous employment - Relevance of contingency that it may not continue.

Damages - Measure and remoteness of damage in actions for tort - Measure of damages - Personal injuries - Deductibility of specific benefits and amounts - Pensions and superannuation benefits - Future receipt of social security benefits - Weight to be attached to such possible future benefit.

Appeal from Crawford, J, B46/1995, 1 September 1995, (unreported, available on SCALE).

Counsel for the Appellant: D J Porter QC and M K Wilkins

Solicitors for the Respondent: Abetz Curtis and Docking

2 That the judgment appealed from be varied to substitute for the sum

of $283,739.30 the sum of $218,739.30.

WRIGHT J I have had the advantage of reading the reasons to be published by my learned brother Zeeman. I agree with those reasons and the orders proposed.

ZEEMAN J The respondent brought an action against the appellant for damages for personal injuries suffered by him in the course of his employment with the appellant as a result of its alleged negligence. The appellant denied negligence and, in the alternative, pleaded a defence of contributory negligence. The action proceeded to trial. The learned trial judge found the appellant to have been negligent but was not persuaded that contributory negligence had been made out. After assessing damages and deducting workers compensation payments made, the learned trial judge directed that judgment be entered for the respondent against the appellant in the sum of $288,739.30.

2. The appellant has appealed. The notice of appeal challenges the finding that the appellant had been negligent, the conclusion that contributory negligence had not been made out and the assessment of damages. The grounds of appeal are as follows:

"1 The trial judge erred in law in that he held that leaving the chain

block trolley close to the end of a crawl beam constituted a

reasonably foreseeable risk of injury, when such risk could only arise

in the course of a transfer between a crawl beam and the gantry beam.

2 The trial judge erred in law in that there was no evidence upon

which it could be found that the appellant itself, or by its servants

or agents, knew or ought to have known that there was a risk of injury

from a chain block trolley falling from a crawl beam, other than in

the course of a transfer between a crawl beam and the gantry beam.

3 The trial judge erred in law in that there was no evidence upon

which it could be found that the appellant itself, or by its servants

or agents, knew or ought to have known of the likelihood of a stop

becoming jammed in the upright position.

4 The trial judge erred in law in holding that it was negligent for an

unidentified employee of the appellant to have placed the chain block

trolley at the end of the crawl beam in close proximity to the stop,

in that there was no evidence upon which it could be found that such

conduct involved a foreseeable risk of injury.

5 The trial judge erred in law in that he held that it was negligent

for the appellant to not inform the unidentified employee of the risk

of leaving the chain block trolley at the very end of the crawl beam

and by not instructing him what to do to avoid it, in that there was

no evidence upon which it could be found that such conduct involved a

foreseeable risk of injury.

6 The trial judge erred in that he held that the respondent neither

knew or ought to have known that he exposed himself to a risk of

injury by lifting the cleaning rack from the hook at the bottom of the

chain before ensuring that the stop was vertical or moving the chain

block trolley further away from the end of the crawl beam.

7 The trial judge erred in law in that he found that the plaintiff

ought not reasonable (sic) to have been expected to realise that a

dangerous situation existed above him and that he should do something

about it.

8 The award of damages to the respondent was manifestly excessive and

in particular:

(a) the award of $45,000.00 for general damages for pain, suffering

and loss of amenities was manifestly excessive and not just and

proportionate to the degree of injury;

(b) the award of $300,000 for the past and future aspects of loss of

earning capacity was manifestly excessive given the findings of the

trial judge as to the nature of the respondent's disabilities, the

prognosis and the exaggeration by the respondent of his symptoms."

3. At the trial it was common ground that on 25 July 1992, whilst he was engaged in the duties of his employment with the appellant in a cell room at the appellant's works at Risdon, the respondent was struck on the right side of his head and on his right shoulder by a chain block which fell from a crawl beam situated above him. It was also common ground that as a result of having been struck, the respondent suffered personal injury.

4. The cell room was of a large rectangular shape. Across most of its width ran fifty-two parallel rows of cells, called cascades. At a height of three metres or so above each cascade there was a crawl beam, a steel beam along which electric hoists and chain block trolleys ran on wheels to positions above the cascade below. They were used to lift items such as cathodes and anodes out of the cells. Each cascade and the crawl beam above it ended some four metres short of the side walls.

5. From time to time it became necessary to transfer a hoist or chain block trolley from one crawl beam to another. This was done by the use of a transfer trolley which travelled along the rails of a suspended gantry running lengthwise along one side of the cell room at right angles to the crawl beams. The transfer trolley was fitted with a gantry beam, a short length of steel beam of similar shape to the crawl beams. When the transfer trolley was directly opposite a crawl beam the gantry beam effectively operated as an extension of the crawl beam. When the transfer trolley was in that position, a hoist or chain block trolley could be rolled along the crawl beam and on to the gantry beam and vice versa. By moving the transfer trolley along the gantry it was possible to position it opposite any of the crawl beams so that it could be used to receive or discharge a hoist or chain block trolley from or on to any crawl beam.

6. In the absence of some precautions, a trolley could roll off the end of a crawl beam and fall to the ground when the gantry beam was not in place directly opposite it. To guard against this possibility, a stop was fitted to the end of each crawl beam. The stop consisted of a rectangular plate of mild steel, some twenty-five to thirty millimetres thick, two hundred millimetres long and one hundred millimetres wide. At the end of the plate there was a steel shaft, perpendicular to the plate, which passed through a bearing, the housing of which was bolted to the top of the end of the crawl beam. The stop had a clearance of about one millimetre from the end of the crawl beam. Normally, the stop was kept in a vertical position by the force of gravity. Whilst in a vertical position it operated as a blocking device preventing any hoist or chain block trolley from rolling from the end of the crawl beam.

7. The gantry beam was fitted with a similar stop. When the transfer trolley was moved into position opposite a crawl beam the two stops came into contact, causing each to rotate on its shaft to positions where neither operated as a blocking device and enabling free movement between the gantry beam and the crawl beam. As the transfer trolley moved away from a crawl beam the two stops ceased to be in contact and, in the normal course of events, each could be expected to drop back into its vertical position.

8. There was a red line painted on the bottom of each crawl beam at a point some fifty to one hundred centimetres from its end. The learned trial judge found that it was accepted practice in the cell room to ensure that trolleys were left no nearer to the end of a crawl beam than the position indicated by such red line. The respondent gave evidence that on his first day at work in the cell room the stops and their purpose were explained to him. He also said that he was then told that if he intended to transfer a chain block trolley from one crawl beam to another he was first to leave it on the crawl beam not nearer to the end than the position indicated by the red line because otherwise it was too dangerous. The learned trial judge appears to have accepted this evidence. None of the findings concerning the red line were challenged on the hearing of the appeal.

9. When the respondent commenced his shift on 25 July 1992 he needed to use a cleaning rack. It was common practice for those racks to be moved about the cell room. He observed that such a rack was hanging above the end of a cascade at the end of a chain suspended from a chain block. The chain block was attached to a chain block trolley which was located at the end of a crawl beam. In order to obtain the cleaning rack, the respondent needed to do no more than to lift it from a hook at the bottom of the chain and then carry it to the position where he intended to use it. The rack was heavy. He took hold of it with both hands in front of his chin and lifted it up. Thereupon he was hit on the head and shoulder by the falling chain block.

10. At the time that this occurred the transfer trolley was not in position opposite the relevant crawl beam. The stop should have been in place at the end of the crawl beam. Had it been in that position, it would have prevented the chain block trolley falling from the end of the crawl beam. The learned trial judge made a number of unchallenged findings as to how the trolley came to fall from the crawl beam. Those findings are as follows:

1 the chain block trolley had been left on the extreme end of the

crawl beam;

2 it had been left there with the stop not in its proper vertical

position but in a horizontal position;

3 the stop was in a horizontal position because a foreign body had

become lodged between the back of the steel plate of the stop and the

bearing housing behind it; and

4 although the respondent did not intentionally move the trolley, he

caused it to move a little as a result of which it fell from the crawl

beam.

11. The respondent did not look up at the crawl beam before he commenced to lift the rack. Had he looked, he would have been able to see that the stop was up and that the trolley was very close to the end of the crawl beam. The respondent proceeded on the assumption that the stop would be in its proper vertical position. There was evidence of previous occasions when items had fallen from a crawl beam or the gantry beam. None of those falls had been as the result of a stop not returning to its proper position after a transfer to or from it had occurred by means of the transfer trolley. Some such incidents had occurred in the course of attempts to transfer items between a crawl beam and the gantry beam when the two beams had not been properly aligned. Other such incidents had involved pieces falling from hoists.

12. Having made his findings of fact as to how the trolley had become dislodged from the crawl beam, the learned trial judge said:

"It is unlikely that the chain block trolley was on the edge of the

crawl beam with the stop raised after having been moved to that

position from further along the crawl beam. It is difficult to

believe that one of the defendant's employees would have dragged the

trolley to such a position without realising how precarious it was."

13. Counsel for the appellant submitted, and ground 4 asserts, that the second sentence of that passage discloses error. That submission proceeds upon the basis that thereby the learned trial judge made a finding that the employee who had caused the trolley to be in this position had been negligent. However, the learned trial judge did not direct this observation to the employee who had caused the trolley to be in the position it was immediately before the respondent commenced to lift the cleaning rack. The learned trial judge found that the trolley had come to be in the position close to the end of the crawl beam because it had been left there after transfer from the gantry beam and not because it had been dragged there from further along the beam. A reason for coming to that conclusion was that the latter was unlikely, because any employee probably would have realised how precarious it was. The observation complained of is of no relevance beyond being a basis for that finding. The finding of fact is accepted by the appellant. It follows that the basis for the finding is entirely irrelevant.

14. The learned trial judge found the appellant to have been negligent on the basis that two of the particulars of negligence alleged in the amended statement of claim had been made out. Those particulars are as follows:

"(f) placed the chain block trolley in an unsafe position on the crawl

beam, namely at the extreme end of the crawl beam in close proximity

to the stop;

(g) failed to ensure that the chain block trolley was a sufficient

distance from the end of the crawl beam, namely in a position on the

far side of the red line on the beam away from the end of the beam."

15. The learned trial judge expressed his reasons for concluding that negligence had been made out in the following passage from his reasons for judgment (Gasu v Pasminco Australia Ltd B46/1995 at 6):

"On the basis of the evidence I hold that particulars (f) and (g) have

been established by the plaintiff as a basis for a finding of

negligence against the defendant. I find that a dangerous situation

was created by the unidentified employee who left the chain block

trolley standing at the very end of the crawl beam. I find that it

was accepted practice in the cell room to ensure trolleys were to be

left no nearer the end of crawl beams than a red line painted on the

beams for that purpose, which was about half to one metre from the

end, in the interests of protecting those below from falling trolleys.

If some of the employees were not aware of the red line it was

nevertheless the accepted practice to leave them no closer than half

to one metre from the end for the same reason. The evidence,

particularly of the plaintiff and Mr Russell, persuades me to so find.

Earlier I expressed my finding that the chain block trolley probably

came to be in the position it was in at the time the plaintiff

approached it because another employee had moved it from the gantry

beam in the course of a transfer procedure and left it there. That

employee ought to have realised that if he left it at the very end of

the crawl beam it might fall on someone below. Even accepting that

employees ought not to have anticipated that a stop might not fall

from the horizontal position when the transfer trolley was moved away

from it, it ought to have been well known to employees, and made well

known to them by the defendant, that trolleys and hoists had fallen

from the ends of crawl beams before and for that reason they should be

kept away from the ends.

When determining whether there was in the way stated in particulars

(f) and (g) a breach of the duty owed by the defendant and its

employees to the plaintiff the first question is whether a reasonable

person in their position would have foreseen that leaving the chain

block trolley at the end of the crawl beam involved a risk of injury

to employees of the defendant such as the plaintiff. Wyong Shire

Council v Shirt [1980] HCA 12; (1979-1980) 146 CLR 40 at 47. This question requires

proof that it was reasonably foreseeable as a possibility that that

conduct might cause injury of some kind to the plaintiff or a person

in his position. The inquiry is not confined to the foreseeability of

the actual injury suffered, nor the precise way in which it was

caused. Minister for Environmental Planning v San Sebastian Pty Ltd

(1983) 2 NSWLR 268 at 296; Ratcliffe v Jackson A30/1993 per

Underwood J at 2. The evidence of previous accidents involving hoists

and chain block trolleys falling off the ends of crawl beams and the

evidence of the plaintiff and Mr Russell satisfies me that employees

of the defendant knew, and if they did not then they ought to have

been appropriately instructed by the defendant, that hoists and

trolleys should not be left close to the end of crawl beams in the

interests of the safety of others. There was plainly a foreseeable

risk of injury. The risk was not a far-fetched or fanciful one.

In response to that foreseeable risk of injury the unidentified

employee, who left the chain block trolley at the very end of the

crawl beam with the result that the plaintiff was injured, ought to

have moved it further away from the end. If he did not realise the

risk then the defendant was negligent by not informing him of it and

by not instructing him what to do to avoid it. Those would have been

simple and effective responses to the foreseeable risk.

If contrary to my finding the chain block trolley was in that position

because an employee had moved it there from further along the crawl

beam when the stop was raised that would also have been a negligent

thing to do for another reason. That employee had a duty to watch what

he was doing. It would have been negligent to move the trolley to the

end of the beam, and leave it there, without paying sufficient

attention to the state of affairs at that place so as to realise that

the stop was in a horizontal position."

16. Ground 1 proceeds on the basis that the appellant was required to guard against two distinct risks of injury which would arise if trolleys and the like rolled off the end of a crawl beam, namely those risks arising in the course of transfers to and from the gantry beam and those arising in other circumstances. The appellant submits that it responded appropriately in relation to each risk. As to the first category of risk, it submits that its appropriate response was to require that the transfer operation not commence until the trolley or other item had been moved back to or beyond the red line. As to the second category of risk, it submits that its appropriate response was to provide the stop mechanism. For the reasons which follow, I do not accept that submission.

17. Although it is well known, it is appropriate to be reminded of the following statement of principle appearing in the judgment of Mason J in Wyong Shire Council v Shirt (1979 - [1980] HCA 12; 1980) 146 CLR 40 at 47 - 48:

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

tribunal of fact must first ask itself whether a reasonable man in the

defendant's position would have foreseen that his conduct involved a

risk of injury to the plaintiff or to a class of persons including the

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

tribunal of fact to determine what a reasonable man would do by way of

response to the risk. The perception of the reasonable man's response

calls for a consideration of the magnitude of the risk and the degree

of the probability of its occurrence, along with the expense,

difficulty and inconvenience of taking alleviating action and any

other conflicting responsibilities which the defendant may have. It

is only when these matters are balanced out that the tribunal of fact

can confidently assert what is the standard of response to be ascribed

to the reasonable man placed in the defendant's position."

18. It is beyond question that a reasonable person in the appellant's position would have foreseen that its conduct in having trolleys and the like suspended from beams above places where its employees were at work involved a risk of injury to all such employees in the event that a trolley or other item were to roll off the end of a beam. The question is whether the provision of a mechanical device of the type installed was a sufficient response to that risk. The particular mechanical device depended for proper operation upon the gap between the steel plate and the bearing housing behind it remaining clear. The complete reliance by the appellant upon the mechanical device, to the extent of permitting trolleys unnecessarily to be in a position which was quite unsafe in the event that the device failed to perform the function for which it had been designed, was not a sufficient response. A proper response was to have the mechanical device but at the same time to ensure that no trolley would unnecessarily be in a position where it would create a dangerous situation should the device fail.

19. Clearly there was a foreseeable risk of injury as a result of the appellant permitting the trolley to be close to the end of the crawl beam. The appellant was aware of the risk that a trolley might roll from the end of a crawl beam. It should have foreseen that the device, in common with all mechanical devices, might fail. Whilst relatively remote, the possibility of failure was not far-fetched or fanciful. It required that the appellant ensure that, except when the gantry beam was in position opposite a crawl beam, trolleys be kept at a safe distance from the end of the beam. The appellant failed to do this and its failure amounted to negligence on its part. These comments dispose of both grounds 1 and 2.

20. As to ground 3, the learned trial judge did not make the finding which that ground complains of. It may be that the gravamen of this ground is an assertion that the finding that the appellant had been negligent in the manner alleged by particulars (f) and (g) was not open because the evidence did not permit the making of the finding referred to. However, such a finding was not a pre-requisite to the finding of negligence made by the learned trial judge. The eventuality against which the appellant had to guard was that the stop might not operate; not that it might not operate for a particular reason. The respondent was not required to establish that there was a likelihood that the stop would not operate, but merely that there was a foreseeable risk that it might not operate.

21. I have already dealt with ground 4. If the learned trial judge erred in the way alleged by this ground, it is an error which is incapable of affecting the disposition of this appeal. The observations I have made as to grounds 1 and 2 effectively disposes of ground 5.

22. The appellant pleaded the defence of contributory negligence with particulars. One of those particulars was abandoned and two others had no evidentiary basis. That left only two particulars for consideration. By those particulars the appellant alleged that the respondent:

"(a) failed to ensure that the stop at the end of the crawl beam was

in the vertical position for moving the chain block trolley;

...

(d) failed to move the chain block trolley from the end of the crawl

beam when he knew or ought to have known that it was in an unsafe

position by reason of its position on the beam;"

23. In rejecting the proposition that contributory negligence had been established, the learned trial judge said:

"Particulars (a) and (d) raise similar points, that is to say that the

plaintiff ought to have satisfied himself that the stop at the end of

the crawl beam was vertical so that the chain block trolley could not

fall off the crawl beam on to him or that he ought to have moved the

chain block trolley further away from the end of the crawl beam so

that the trolley could not fall off the crawl beam on to him. Both

particulars raise an argument that he should have realised as he went

to lift the cleaning rack from off the hook at the bottom of the chain

that he was risking injury from the falling chain block trolley unless

he first made sure that it could not roll off the end of the crawl

beam. I am not persuaded of that. He was not intending or expecting

to cause the chain block trolley to move. He naturally concentrated

on the job in hand directly in front of him. No doubt he knew that

the trolley was towards the end of the crawl beam but I am unable to

conclude that he realised that it was as close to the end of the beam

as it in fact was, nor that he ought to have realised it. He had no

reason to think that the stop at the end of the crawl beam was not

functioning as all stops had before in his experience. What he was

doing is to be contrasted with what was being done by the other

employee who moved the chain block trolley into that position at the

end of the crawl beam. That employee ought to have made sure that by

leaving it where it was he was not creating a dangerous situation.

His concentration ought to have been on the chain block trolley and

its position because he was putting it in that position. On the other

hand the plaintiff was concentrating at a point well below the crawl

beam and it ought not reasonably to have been expected of him to

realise that a dangerous situation existed above him and that he

should do something about it."

24. I can do little more than to say that I entirely agree with what his Honour said. In considering whether there has been contributory negligence by an employee in circumstances where an employer has failed to provide a safe place of work, the circumstances and conditions in which the employee was required to perform his work must be taken into account and mere inattention or inadvertence to the risks created by the employer's unsafe place of work should not be categorised as negligence on the part of the employee (cf McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 315; Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37). The actions of the respondent did not amount to negligence because his concentration on the task at hand, without adverting to the location of the trolley or the position of the stop, was not inconsistent with the conduct to be expected of a prudent and reasonable person. Consequently, neither ground 6 nor ground 7 is made out.

25. I turn to the question of damages. Although the appellant accepts that it is the total award which is under review (Motor Accidents Insurance Board v Richards A92/1991), the ground of appeal which concerns the assessment of damages (ground 8) is concerned with three particular components of the award, namely $45,000 for general damages in respect of non-economic loss, $75,000 for loss of past earning capacity and $225,000 for loss of future earning capacity. The assessments in respect of loss of earning capacity included allowances for the loss of future superannuation benefits to be provided by employer contributions in accordance with, or by reason of, the requirements of the Superannuation Guarantee (Administration) Act 1992 (Cth).

26. Central to a consideration of ground 8 are the nature and extent of the disabilities suffered by the respondent as a result of his injuries. His immediate injuries were a ten centimetre laceration of the head, a glancing injury to the scalp, soreness on the right side of the neck and in the right shoulder and a chipping of the upper right central incisor. Subsequently, he developed headaches. The respondent made an uneventful recovery from most of those injuries, but claimed that he had continued to suffer from severe headaches and neck or shoulder pain to such a degree that they had prevented him from working. The respondent's case was conducted on the basis that this would continue to be the position for an indefinite period in the future.

27. The learned trial judge rejected the proposition that the respondent continued to suffer from disabling neck or shoulder pain and concluded that he had exaggerated his symptoms. He found that the respondent had some permanent symptoms of occasional mild pain in the shoulder but that such pain was not disabling.

28. The respondent said that he commenced to suffer from headaches some time after his accident. He said that some two months after the accident he was suffering from two types of headaches and that they had been with him ever since. The first type of headache he described as being like a pulse which was present all the time. The second type he described as a shooting pain, lasting from thirty seconds to a minute, which normally travelled from the back of the head to the front of the right eye. He claimed that he suffered from the latter type of headache as often as twice a day, but not every day. The descriptions of headaches given by the respondent at the trial were not entirely consistent with the descriptions which he had given on an earlier occasion to a clinical psychologist.

29. The learned trial judge found that the respondent exaggerated the severity of his headaches when he gave evidence, but nevertheless found that the respondent suffered from ongoing headaches; that they could be described as an ongoing serious complaint and that they were caused by the blow to the respondent's head by the chain block or its trolley. As to the extent of the headaches, the learned trial judge found that the respondent consistently suffered from the first type of headache and that the second type occurred about two to four times per week and lasted for twenty to forty seconds. Although various views had been expressed by the medical specialists who had given evidence, the learned trial judge was unable to find a physiological or pathological cause for the headaches.

30. The evidence at the trial did not admit to the making of any confident prediction concerning the respondent's prognosis. The learned trial judge was not satisfied that the respondent would never work again, but accepted that that was a possibility because his perception of his suffering might prevent him from doing so. The learned trial judge considered it likely that the respondent would learn to cope better with his headaches, although on a number of occasions in the past he had become depressed to the point of contemplating suicide, his relationship with his wife had suffered and he had became introspective. The plaintiff underwent therapy and relaxation and stress reduction training in 1994 which had a beneficial effect, resulting in a reduction in his suffering. At the time of trial, the respondent frequently worked out at a gymnasium, exercised, walked a lot and played volleyball socially. The effect of the learned trial judge's ultimate conclusions appears to be that for some time after the respondent suffered his injury the headaches had been severe and quite disabling, but that since 1994 there has been an improvement in his condition. Since 1994 the respondent has been able to engage in many activities, although not in full time paid employment.

31. On the basis of the findings of the learned trial judge I tend to the view that the sum of $45,000 for non-economic loss was quite generous and somewhat more than I would have awarded. Despite that, if none of the assessments made by the learned trial judge as to other components of the final award should be interfered with, I do not consider that that view would justify interfering with the final award. In such event, the disparity between the sum allowed for non-economic loss and the sum which I would consider to be appropriate is not significant enough to permit of a conclusion that the ultimate award is a wholly excessive estimate of the damage suffered by the respondent.

32. I turn to the question of lost earning capacity. At the time that he was injured the respondent had been employed by the appellant for a little over three months. In that employment, in part due to the availability of overtime, he was remunerated at a rate far higher than he had been able to earn in any previous employment. The respondent is a Samoan, having been born in Western Samoa on 30 July 1964. He attended school in Western Samoa until the age of sixteen. This was followed by an introductory year at a university, during the course of which he studied accounting, English and business mathematics. Upon completion of this year the respondent enrolled at a university but did not persevere with his studies. The respondent's first language is Samoan and that is the language which he used when in Samoa. He speaks English, but with some limitations.

33. Upon leaving university, the respondent obtained employment as a junior clerk with a retail company in American Samoa. This was followed by employment with a building construction company which involved the performance of both clerical and manual work. The respondent then returned to Western Samoa. Although not a qualified teacher, he obtained employment as a relief teacher at a small church school, teaching a variety of subjects. In about July 1987 he went to New Zealand for a holiday. He remained there for some eighteen months without engaging in paid employment. At the end of 1988 he moved to Victoria where, over a period of about two years, he worked as a machine operator, on a chicken farm and as a welder. The respondent said that he would have preferred clerical work, but that he lacked the required English language skills.

34. In September 1990 the respondent married his present wife. She is Australian born. Soon thereafter his then employer ceased its operations in Victoria. It offered the respondent employment in South Australia but he did not accept. He did not engage in paid employment during 1991. In August 1991 he and his wife moved to Hobart, where her parents were then living. The respondent did not obtain immediate employment in Hobart and remained unemployed until 21 April 1992 when he commenced work with the appellant. Again, the respondent would have preferred to have obtained clerical work. Nevertheless he enjoyed working for the appellant because he found his workmates congenial and was particularly appreciative of the high level of earnings.

35. In October 1993 the appellant retrenched a substantial number of its employees. The respondent, who was then still employed by the appellant, although in receipt of workers compensation and not actually working, was amongst those who were retrenched. An important question for consideration by the learned trial judge was whether that retrenchment would have occurred even if the respondent had not been injured. The learned trial judge found that had the respondent not been injured and had he continued working for the appellant until October 1993, he would have had a much better chance of not being retrenched. There was no evidence indicating that the respondent was not a satisfactory employee. A significant number of the employees who were retrenched were regarded as being obstructive or disruptive or as having some other undesirable characteristics. It appeared to the learned trial judge that the respondent was a likeable and obliging sort of person who would have been unlikely to have offended his superiors. He did not consider him to have any of the undesirable characteristics which would have made him a prime candidate for retrenchment.

36. The learned trial judge found that had the respondent remained in his employment with the appellant until the time of trial he would have earned some $96,000 clear of income tax and the Medicare levy. He included in that figure the sum of $1,600, being the superannuation contributions which the appellant would have made, less income tax of fifteen per cent. That approach to superannuation contributions does not appear to be correct (Heather v Vita Pacific Ltd A32/1996) but the error is of no significance because of the very small amount involved and because no complaint of error is made. The amount of $96,000 was substantially greater than most unskilled workers could have earned in that period. After taking into account contingencies, including the possibility that retrenchment would have occurred in any event, the learned trial judge assessed damages in respect of past loss of earning capacity at $75,000, ie, an amount representing a little over three quarters of what the respondent would have earned had he remained in the employ of the appellant during the whole of this period.

37. Whilst it was appropriate for the learned trial judge to proceed upon the basis that the respondent had been wholly incapacitated for work from the time that he was injured until the trial, I do not consider that the allowance in respect of his loss of past earning capacities sufficiently reflected the uncertainties which surrounded the question as to whether the respondent would have remained in the appellant's employment for the whole of the relevant period even if he had not been injured. Retrenchment in October 1993 would have been a distinct possibility even if the respondent had not been injured. Had he been retrenched, the respondent might well have had an extended period of unemployment and any employment which he might have procured probably would have been remunerated at a much lower rate than that which he had received whilst employed by the appellant. The respondent might well have decided to leave the appellant's employ voluntarily. Clerical work, which he preferred and with which he might well have been able to cope as his English language skills improved, might have become available to him. Even though it would have resulted in reduced earnings, the respondent might have taken it. The respondent's employment history suggested that he tended to move from place to place and not remain in any position for very long. All those matters needed to be taken into account. The sum allowed by the learned trial judge gave insufficient weight to those matters. I consider that a sum in the region of $60,000 - $65,000 would provide fair compensation to the respondent for his loss of past earning capacity.

38. The learned trial judge assessed damages for the loss of future earning capacity upon the basis of the following calculations. Had the respondent remained in the appellant's employment at the time of trial, he would then have been earning approximately $600 per week net. He had thirty-four years of working life left before reaching what the learned trial judge described as being the common retirement age of sixty-five years. Whether it is still accurate to describe this as the common retirement age must be open to question. The present value of a weekly loss of $600 for thirty-four years, discounted by seven per cent, is $416,400. The value of the loss of future superannuation benefits which the respondent would have received as the result of contributions made by the employer, had the respondent earned this weekly sum for this period, was agreed at $50,000. In the light of those figures, and before making any deduction in respect of the contingency that the respondent possibly might receive relevant social security benefits (see Sorenson v Woolnough (1989) Tas R 315 (NC 15)), the learned trial judge assessed damages for loss of future earning capacity at $250,000. He then made a deduction of ten per cent in respect of that contingency and assessed the damages at $225,000.

39. Something needs to be said as to that deduction of ten per cent. The learned trial judge proceeded upon the basis that, by operation of the Social Security Act 1991 (Cth), Pt3.14, the respondent would almost certainly be precluded from receiving a social security benefit or pension by reason of his accident caused disabilities and employment until about 2003. Any allowance for the contingency that the respondent might receive such a benefit or pension had to take into account that the allowance was being by way of a reduction of the amount which otherwise would represent appropriate damages when a substantial portion of that amount was referable to the loss of earning capacity during the preclusion period. The learned trial judge's assessment proceeded upon the basis that with time the extent of the respondent's incapacity would reduce. It follows that the assessment allowed for an increasing level of earning capacity as time went on. This suggests that the proportion of the damages allowed for the loss of future earning capacity which relate to the preclusion period is greater than a mere mathematical apportionment would suggest. That proportion of the damages must be unaffected by any future social security payments. An increasing level of earning capacity as time goes on also reduces the degree of likelihood that the respondent's injuries will result in the receipt of social security benefits after the expiration of the preclusion period. All in all I consider that only a very small adjustment should have been made against this contingency and that a ten per cent reduction was far too much.

40. I do not consider that the level of earnings of the respondent whilst he was employed by the appellant provided a reliable indicator of his loss of future earning capacity. In the respondent's employment history, the level of earnings which he was able to achieve whilst in the employ of the appellant could be described as a brief aberration. Common experience of changes in industrial operations suggest that the chance of the respondent having such employment available to him, at such rates of remuneration, until the age of sixty-five years, must be seen as remote. The specific contingencies which I have mentioned in connection with the respondent's loss of past earning capacity apply even more forcefully to the future. The particular retrenchment program engaged in by the appellant in 1993 may well not have been the last. Changes in technology might have rendered the performance of the relevant tasks unnecessary. The respondent might well not have been minded to engage in heavy manual work of this nature on a permanent basis. His standard of English appeared to be good when he gave evidence before the learned trial judge and, in the normal course of events, it might have been expected to further improve as he continued to be exposed to English speaking persons. Clerical work might have more readily been available to him and he might well have taken it up as a preferable form of employment, albeit that it was not as remunerative. All in all I consider that an allowance of $175,000 would have been adequate compensation for the respondent's loss of future earning capacity after making some allowance for the receipt of future social security benefits.

41. In the light of these reasons, I have concluded that the amount awarded to the respondent was excessive to the extent of being a wholly erroneous estimate of the damage suffered by him. I would reduce the amount of the award by $70,000. Accordingly, I propose that the appeal be allowed and that the judgment be varied to substitute for the sum of $283,739.30 (that being the amount erroneously shown in the judgment as the amount thereof as the result of a clerical error) the sum of $218,739.30.

SLICER J The appellant was held to be negligent with respect to an industrial accident involving the respondent and was unsuccessful in its plea of contributory negligence. The general description of the work place, equipment and method of operation is set out in the reasons for judgment appealed from (Gasu v Pasminco Australia Ltd B46/1995) and does not require repetition. It is sufficient to say that the respondent was injured when a chain block trolley fell from a crawl beamway along which the trolley was required to travel. The method of operation permitted the transfer of the trolley to other parallel crawl beams by way of another trolley, which itself travelled on a transverse gantry beam. Certain safety mechanisms prevented the trolley from slipping whilst being moved, by way of that gantry beam, to a parallel crawl beam. At the time of the accident the trolley was situated near the end of the crawl beam but was not in the process of transfer. The learned trial judge found that:

"... something unusual had occurred and the stop (a safety device) was

not in a vertical position but instead was jammed up in a horizontal

position. With it in that position there was nothing to prevent the

trolley rolling off the end of the crawl beam if it was moved to the

end".

The learned primary judge found that the trolley fell from the beam whilst the respondent was lifting a cleaning rack, that the stop was regularly and properly maintained, had not previously failed and had probably stuck in a horizontal position because of the intrusion of a foreign body. He was unable to conclude that the presence of a foreign body was a consequence of negligence. Given the position of the trolley prior to the accident, his Honour concluded that a fellow employee had left the trolley in that position after a previous transfer and as a consequence:

"... a dangerous situation was created by the unidentified employee

who left the chain block trolley standing at the very end of the crawl

beam".

"... it was an accepted practice in the cell room to ensure trolleys

were to be left no nearer the end of crawl beams than a red line

painted on the beams for that purpose, which was about half to one

metre from the end, ...".

2. The learned trial judge concluded that the respondent had established particulars of negligence of the defendant through its servants in that it:

"(f) placed the chain block trolley in an unsafe position on the crawl

beam, namely at the extreme end of the crawl beam in close proximity

to the stop;

(g) failed to ensure that the chain block trolley was a sufficient

distance from the end of the crawl beam, namely in a position on the

far side of the red line on the beam away from the end of the beam".

3. The appellant challenges the finding of negligence on the grounds that:

"1 The trial judge erred in law in that he held that leaving the chain

block trolley close to the end of a crawl beam constituted a

reasonably foreseeable risk of injury, when such risk could only arise

in the course of a transfer between a crawl beam and the gantry beam.

2 The trial judge erred in law in that there was no evidence upon

which it could be found that the appellant itself, or by its servants

or agents, knew or ought to have known that there was a risk of injury

from a chain block trolley falling from a crawl beam, other than in

the course of a transfer between a crawl beam and the gantry beam.

3 The trial judge erred in law in that there was no evidence upon

which it could be found that the appellant itself, or by its servants

or agents, knew or ought to have known of the likelihood of a stop

becoming jammed in the upright position.

4 The trial judge erred in law in holding that it was negligent for an

unidentified employee of the appellant to have placed the chain block

trolley at the end of the crawl beam in close proximity to the stop,

in that there was no evidence upon which it could be found that such

conduct involved a foreseeable risk of injury.

5 The trial judge erred in law in that he held that it was negligent

for the appellant to not inform the unidentified employee of the risk

of leaving the chain block trolley at the very end of the crawl beam

and by not instructing him what to do to avoid it, in that there was

no evidence upon which it could be found that such conduct involved a

foreseeable risk of injury."

4. The findings of the learned trial judge were reasonably open to him. The trolley was not in the process of a transfer, it fell and could only have fallen from the end of the beam. The respondent had moved it by no more than a few centimetres. There may have been no negligence in relation to the jamming of the stop, but nevertheless the leaving of the trolley at the end of the beam was causative of the fall. There was sufficient evidence to warrant the conclusion that there existed a red line marking the permitted boundary for the safe positioning of the trolley whilst not being transferred. The central tenent of the appellant's case is that the injury was not reasonably foreseeable. It is clear that injury was readily foreseeable in the event of a fall of the trolley. The question is whether a fall was readily foreseeable if the trolley was left at the end of the beam? The installation of the stop itself suggests the potential for danger when the trolley was at the extremity of the beam. What the appellant did not foresee was that the stop would jam. But that is a different question. In any event the focus of the appellant's attention to risk was directed at preventing mishaps during transfer, not whilst the unit was at rest. In dealing with the question of foreseeability the learned trial judge found:

"The evidence of previous accidents involving hoists and chain block

trolleys falling off the ends of crawl beams and the evidence of the

plaintiff and Mr Russell satisfies me that employees of the defendant

knew, and if they did not then they ought to have been appropriately

instructed by the defendant, that hoists and trolleys should not be

left close to the end of crawl beams in the interests of the safety of

others. There was plainly a foreseeable risk of injury. The risk was

not a far-fetched or fanciful one.

In response to that foreseeable risk of injury the unidentified

employee, who left the chain block trolley at the very end of the

crawl beam with the result that the plaintiff was injured, ought to

have moved it further away from the end. If he did not realise the

risk then the defendant was negligent by not informing him of it and

by not instructing him what to do to avoid it. Those would have been

simple and effective responses to the foreseeable risk."

5. The appellant had placed reliance on the safe operation of the stop device. But it ought to have considered that in the event of failure of that device the unit, left too close to the extremity, could fall. Given its size and weight, any fall posed risk of serious injury. The finding reached is in accordance with the statement of principle laid down by the High Court in Wyong Shire Council v Shirt (1979 - [1980] HCA 12; 1980) 146 CLR 40. Grounds 1 and 5 are not sustained.

6. Whilst it is true that the appellant had considered the risk of injury during the course of transfer, it is not correct to say that there was no evidence that it ought to have appreciated risk of injury in circumstances where the unit was left on the crawl beam. The very nature of the machinery and its method of operation warranted an appreciation of risk. The line marking was designed to prevent the trolley from being left too close to the end of the beam whilst the stop mechanism was raised to permit transfer. The failure of the mechanism, for whatever reason, ought to have been foreseen and a possible consequence anticipated. A failure of the mechanism, together with the unit being left close to the end of the beam, was a foreseeable risk. The fact that the only previous accidents had occurred during transfer did not alter that position. The learned trial judge was correct in his determination in relation to the issues raised by grounds 2 and 4 of the notice of appeal. They are not made out.

7. It is difficult to discern the purport of ground 3. There was no finding of negligence that the appellant ought to have known of the likelihood of the stop being jammed. There was no error occasioned by the absence of evidence as to knowledge of the likelihood of jamming. The finding of negligence related to the positioning of the trolley in a place where, if the stop mechanism failed, there was risk. The fact that the appellant had no reason to expect failure of the stop mechanism does not negate appreciation of potential risk in the event that it did fail. The respondent was not required to establish that the appellant had actual reason to anticipate a likelihood of failure. The ground is not sustained.

8. The learned trial judge found that at the time the respondent was engaged in the cleaning exercise he:

"did not look up to see the position of the stop at the end of the

crawl beam,"

"... he assumed that the stop would be down in the vertical position

because since he commenced his employment by the defendant, stops were

always down in similar circumstances."

No finding of contributory negligence was made. The notice of appeal claims:

"6 The trial judge erred in that he held that the respondent neither

knew or ought to have known that he exposed himself to a risk of

injury by lifting the cleaning rack from the hook at the bottom of the

chain before ensuring that the stop was vertical or moving the chain

block trolley further away from the end of the crawl beam.

7 The trial judge erred in law in that he found that the plaintiff

ought not reasonable (sic) to have been expected to realise that a

dangerous situation existed above him and that he should do something

about it."

9. The respondent was engaged in the clearing of a rack not in the movement or transfer of the trolley. He had inadvertently moved it only a few centimetres. The findings were:

(a) the respondent was concentrating on the task of cleaning and had

no reason to expect movement of the trolley; he was concentrating on a

point well below the beam;

(b) whilst he was aware that the trolley was towards the end of the

beam he had no reason to realise that it was as close to the end as it

was; and

(c) he was not responsible for the positioning of the trolley and was

entitled to rely on others to leave the equipment in a safe position.

10. Those findings were open on the evidence. There was no error in finding that he neither knew or ought to have known of the likelihood of risk, nor that he ought to have looked or done some other thing to avoid risk. Grounds 6 and 7 are not sustained.

11. The appellant claims that the award of damages was manifestly excessive:

"8 ... and in particular:

(a) the award of $45,000.00 for general damages for pain, suffering

and loss of amenities was manifestly excessive and not just and

proportionate to the degree of injury;

(b) the award of $300,000 for the past and future aspects of loss of

earning capacity was manifestly excessive given the findings of the

trial judge as to the nature of the respondent's disabilities, the

prognosis and the exaggeration by the respondent of his symptoms."

The components of the award for loss of earning capacity are $75,000 for loss of past earning capacity and $225,000 for loss of future earning capacity. No issue is taken as to the particular findings as to extent of injury or nature of disability. They were severe, although the learned trial judge found that the respondent had exaggerated the severity of his condition. He did not accept that all of the pain, suffering and disability claimed by the respondent existed.

12. The injury suffered by the respondent consisted of lacerations to the head, damage to a tooth and bruising to the neck and shoulder. He complained of ongoing disabling pain to the neck which the learned trial judge found to be exaggerated. The finding was that there was occasional mild pain in the shoulder which was not disabling. A similar finding was made with respect to ongoing headaches, namely that their severity had been exaggerated, but nevertheless amounted to an ongoing serious condition. Various forms of therapy have reduced their frequency and severity and since 1994 the improvement has permitted the respondent to return to a number of activities, although not to permanent employment. Future prognosis of the condition experienced by the respondent is always difficult, but the finding that there was likely to be continued improvement was a reasonable one. The award of damages for non-economic loss was within the permitted range. The respondent had led an active physical life and suffered moderate impairment. He was aged 31 at the time of the trial and had been "a very good athletic person and good at all sports". He has suffered psychological problems and the effect of injury has impacted on his domestic life. I do not accept than an award of $45,000 was unwarranted.

13. The assessment of damages for past loss of earning capacity was made in the light of evidence that:

. a number of employees were retrenched whilst the respondent was away

from work because of injury;

. had the respondent remained in employment at the rate of pay and for

the hours required as of the date of accident, he would probably

have earned, since the accident, approximately $96,000 after

deduction of income tax and the Medicare levy;

. that the figure of $96,000 was substantially more than most

unskilled workers such as the respondent could have earned in the

same period;

. the figure amounted to that total because of the considerable amount

of overtime available at the relevant time.

14. The learned trial judge took into account the possibility of retrenchment, a lessening of potential income and a possible substantial period of unemployment. On the other hand, the learned trial judge made allowance for the loss of:

"... opportunity of increasing his knowledge and skills and of gaining

experience in the defendant's employment. He also missed the

opportunity of becoming known to the senior employee who assessed his

qualities for continued employment"

"... the opportunity of becoming known to the senior employee who

assessed his qualities for continued employment"

"If he had continued working for the defendant until October 1993,

without interruption because of the accident, he would have had a much

better chance of being selected to continue in his employment."

15. Weighing up these competing factors the award for damages was assessed in the sum of $75,000. It is the total award which is under review (Motor Accidents Insurance Board v Richards A92/1991) and, given my conclusion that the totality of the award was excessive, some assessment of the component parts is necessary. Even if taken alone a particular component could not be said to be wholly outside of the parameters for an assessment of damages, it does not follow that the totality of the award could not be said to be excessive. The assessment of past loss of income impacts on the amount awarded for loss of future earning capacity. Accepting for a moment that the award of $75,000 was within a permitted range, it does not follow that it should be used as a basis for future projection. The figure was inflated because of current overtime required by the employer and was generous in the light of evidence of retrenchment and restructuring. Changes to the nature of employment, the possibility that clerical work may have been the only reasonable option open to the respondent, and the likelihood that the respondent's condition will improve, warrant the conclusion that the total amount awarded for loss of future earning capacity was in excess of that reasonably open. The deduction of ten per cent (including relevant Social Security benefits) in respect of contingency for past loss, was insufficient. Given the assessment of future loss, before deduction of $250,000 I would allow a greater contingency deduction and commence from a lower base for income assessment. I do not disagree with the calculations made by Zeeman J in his draft reasons for judgment that a figure of $175,000 represents adequate compensation. I may have reached a similar conclusion by a different method, but given the nature of the appeal, it is sufficient if I express agreement with the figure arrived at.

16. I adopt a similar approach to the assessment of the award for loss of past income. I may have reached a higher figure but made greater deduction for loss of future earning capacity. My conclusion accords with that reached by Zeeman J and I do not disagree with the method employed by him. My overall conclusion is that the amount awarded was excessive and I join him in proposing that the appeal be allowed and the judgment varied to substitute an award in the sum of $218,739.