HEARING DATE: 3, 4, 5, 6, 7, 11, 12, 13, 14 April 2000

Damages - Particular awards of general damages - Tasmania - Burst fracture of L1 vertebra - 49 year old man (aged 56 at trial) - Chronic pain and tiredness - Diminished enjoyment of life - Diminished earning capacity - Award $25,000 pain and suffering - $50,000 for earning capacity.

Judgment Number: [2000] TASSC 96

KAREN JANE VERDOUW, ERIC VERDOUW, MARK WILLIAM VERDOUW, TRACY ADELLE VERDOUW, JEFF WITBREUK, CHRISTINA WITBREUK formerly trading as MAVERIC BUILDERS

1 The plaintiff sues the defendants for damages for personal injuries sustained by him in a fall from the first floor of his house to the ground floor through a non-weight-bearing ceiling while the house was in the process of being extended. The first named defendant ("Laver"), which had contracted with the plaintiff and his wife to carry out the extensions, is sued for breach of contract and for tort; the second named defendant, a sub-contractor with whom the plaintiff had no privity of contract, is sued in tort only. It is quite clear, and conceded in final address by counsel for Laver, that the second named defendant ("Maveric") was its agent at all material times.

2 Laver had built the plaintiff's single storeyed home at Kingston for him and his family in 1984. Ten years later, the plaintiff and his wife decided to erect an upper storey on one wing of their L-shaped home. The original ground floor of this wing had comprised an entrance hall and portion of the kitchen, and to the left of the hall a large living room extending the whole width of that wing of the building. To the left of this again was a garage which likewise extended the full width of that wing. The second wing comprised other living areas and bedrooms which extended back towards the street. From the street, the shape of the house represented an inverted L, the base of which extended to the left from the front entrance situated at the apex. The extension was to consist of a living area over the original one and a bedroom with bathroom attached over the garage at the end of the building. Access to the upper floor was to be provided by a staircase on the street side of the lower living room. The stairwell was also L-shaped. The contract with Laver was signed on 16 February 1994. Although the writ alleges breach of contract by Laver, the statement of claim contains only allegations of negligence.

3 Laver sub-contracted much of the work to tradesmen such as electricians, bricklayers, plumbers and roof tilers. It also sub-contracted with Maveric for carpentry work including framing and fitting out. Laver was to supply materials including the staircase. Mr Adrian Hoffman, an employee of Laver, was the building supervisor and had responsibility for 20 or more other building and construction works then being conducted by Laver. Work commenced on Tuesday, 8 March 1994 with Maveric's employees removing the existing roof of the wing to be extended and a tongue and grooved particle board flooring being laid over and nailed into floor joists above the ceiling of the ground floor rooms. An electrical sub-contractor was also present on site re-routing and removing some wires in Maveric's way. Power was still connected to the rest of the building not the subject of renovations, the family continuing to reside therein during the alterations. By the end of the first day, the new flooring had been completed and two tarpaulins, delivered to the site earlier in the day by Mr Hoffman, who had hired them from Pickers Industries Pty Ltd, were erected to protect from the elements the new work and the partly demolished ends of the roof over the rest of the house.

4 Although the new flooring had been completed, a gap had been left for the stairwell. No floor joists were laid over this area and in relation to the floor level of the new storey, there was left a cavity at the bottom of which were ceiling joists from the original construction to which was attached plaster sheeting which constituted the ceiling of the ground floor. This surface was not weight-bearing. The gap was not covered over, nor was it surrounded by any guard rail or similar device.

5 On the second day, work progressed with Maveric's men cutting and setting out the plates laid on the floor to support the upright frame of the new storey. By the end of the third day, Thursday 10 March 1994, the framework was completed, the roof trusses were on, noggins to support the upright studs had been put in place and the trimmer upon which the window for the upper floor adjacent to the stairwell was to sit had been installed. Still to be done before the extension was weatherproof were the fixing of the roof battens which would support the tile roof and sisalation over the framework. Mr Eric Verdouw, Maveric's foreman, tied some of the ropes of the two tarpaulins now in place on the roof. These tarpaulins, if properly tied, gave adequate protection from rain to the gable of the existing tiled roof, to the cavity of the stairwell and generally to the flooring over the living room below. Exposed to the elements were, however, the flooring over the garage in which some furniture from the downstairs living room had been stored, an area to the rear of the house which was to accommodate a cantilevered bay window, and the top of the existing cavity wall of the originally single storeyed brick veneer house. Eventually the bricks would be carried up to the roof line and the overhanging eaves would prevent water from entering the cavity, but as the bricks were not yet laid, the potential existed for water to enter, notwithstanding the presence of the tarpaulins on the roof frame above. In any event, the tarpaulins did not cover the extremities of the house above the garage.

6 On the night of 10 March 1994, it commenced to rain heavily at about 10pm. Concerned that some damage might be caused to the only partially covered structure, the plaintiff went outside to investigate. At the front door he found a jet of water coming from the existing roof by means of a section of guttering which had been cut in the course of the extension work. Although this stream of water did not enter the house, it was splashing on the front door. The plaintiff returned inside, donned a yellow waterproof coat and work boots and went outside with a torch. By the light of the torch he could see that the rain was causing puddles to form in the tarpaulins and he was concerned that they would sag and allow the discharge of the water on to the newly laid floor and to penetrate to the existing building. He observed that several of the ropes on the tarpaulins were not tied to anything solid but were hanging loose and that the tarpaulins did not cover the garage. The bay window area also was unprotected. At the rear of the house near the bay window stood a ladder owned by the plaintiff. One belonging to either the builder or the sub-contractor stood at the front of the house. The plaintiff mounted his own ladder to reach the upper storey and asked his sons, aged approximately 23 and 19 years, to go to his storage shed and to procure two tarpaulins which he possessed. The larger of the two he fixed on to the roof over the unprotected garage area and the smaller he fixed in such a way as to prevent rain entering through the bay window area on to the floor of the new living room. In addition, he instructed his sons to lay loose pieces of timber over the exposed top of the cavity wall of the wing, the subject of the extensions.

7 There was little outside lighting, a motion activated light illuminating the area in front of the house but being tilted in such a way that its beam was directed below the level of the old roof line and the plaintiff had only his torch to rely on for illuminating the upper level. While on the floor of this level, he observed numerous pools of water which had formed between the rafters which had been arrested by some steel bracing laid across the rafters diagonally for additional support. With the aid of some timber on the site, he pushed up the sagging tarpaulins where water had gathered and repeated this process until the pools were emptied. As the tarpaulins became taut, he tied or retied the ropes attached to them to a firm base on the framework. He commenced this process on the rear side of the house, that is, the side furthest away from the stairwell cavity, and gradually moved around towards the front of the house. While tying the ropes, he stood on the noggins nailed between the upright studs at a height of about 1,200 millimetres. At times he moved crab-like from one noggin to the next, but at other times he descended to the floor and walked on it to the next area to be tied down. Although he had been at home for the preceding three days, he had not been on the new first floor at all and was not consciously aware of the existence of the stairwell cavity, or of its non-weight-bearing condition. He had been given no warning of it by any of the workmen at the premises or any officer of either defendant. Having seen the plans, he must have been aware, of course, that a staircase was to be erected at the front of the house inside the old living room. Having satisfied himself of the adequacy of the tying down effected by him on the rear and on the side nearest the other wing of the house, he proceeded to the front and tied down ropes after having removed the puddles in the tarpaulin above him. He proceeded along the front of the house, moving at times along the noggins, and when in the vicinity of a place where a window overlooking the stairwell was to be inserted, he stepped back on to what he thought was solid flooring, but which in fact was the thin plaster ceiling overlying the stairwell. Whether he stepped back from a noggin or from the trimmer of the window frame is not clear, but the result was that his feet immediately broke through the plaster and he fell to the floor of the room below sustaining injuries. An ambulance was summoned by his wife, who is a trained nurse, and he was taken to hospital where he remained an in-patient until 16 March 1994.

8 It was put to him in cross-examination that immediately prior to stepping into the cavity, he had been endeavouring to push out a pool of water in the tarpaulin above him with a broom handle. He denied this and there is no direct evidence that this was the case. His wife denied having any recollection of his having said anything of this nature to her. Mr Hoffman claimed the latter told him the next morning that her husband had got to the stairwell by standing on the window sill and that he was trying to remove, with a stick, some puddles of water that were lying against the facia board on the outside of the building. Mr Eric Verdouw also claimed that the next morning the plaintiff's wife told him that her husband had climbed up on the window sill to remove some water that had been pooling in the tarpaulin and had stepped back and fallen through the hole. According to Mr Verdouw, Mrs Payne had said her husband used a broomstick. Given Mrs Payne's failure to distinctly admit her previous statement, this evidence is admissible under the Evidence Act 1910, s98, and by virtue of s81L, her previous statement is admissible as evidence of any fact therein stated of which direct oral evidence by her would be admissible. However, she did not identify the source of her information. If it were her husband, this would be admissible as an admission by him. It would not be admissible if the source were either of the two sons who were at home when the plaintiff fell. It is clear from Mrs Payne's evidence that she did not see her husband on the upper storey, nor did she see him fall. The plaintiff gave his evidence in an impressive way. He was not prone to exaggeration and did not attempt to argue his case. I see no reason why I should not accept his evidence that he was tying ropes from a standing position on a noggin or the window trimmer (it matters not which) and stepped back, intending to move further along and repeat that exercise. I so find. However, even if he were attempting to empty pools of water in the tarpaulin above him with a stick of some sort immediately prior to his fall, I do not regard this as a significant fact in assessing the question of liability for his injuries and any issue of his contribution thereto.

9 On the evening of 10 March 1994, Mr Eric Verdouw attended a church meeting with his wife. When he left the meeting at about 10pm it was raining "really heavily" and he drove to the plaintiff's premises which were only about five minutes' driving time distant in order to check the tarpaulins and make sure they were still secure. He stopped his car for about five - ten seconds outside the plaintiff's home, which lay to the left side of the cul-de-sac down quite a steep drive. He did not alight. The courtyard in front of the house was lit up and he could see someone standing in a yellow raincoat with his or her back to the roadway looking up at the extension. Mr Verdouw looked at the roof line where he could "only just see the shade of the tarps over the roof", he said he "could gather that they were still in place", although he could not see if they were tied, and this made him "happy enough to continue on". Asked if he had any concerns in his mind at that time regarding the tarpaulins, he said he did not and then, asked if he had thought the person in the yellow raincoat might have had any such concerns, said "well it was raining so heavy that my initial reaction was that he [sic] was just out there to check out what was actually happening." He continued the short distance to the end of the cul-de-sac and drove back home past the plaintiff's house. He did not recall if there was anyone still there when he did so.

10 The following morning, water was found on the floor of the garage. It was estimated by Mr Hoffman to be equal in volume to "a few bucket fills". He thought it might have entered the garage through cracks in the floor sheeting above, or followed the flooring to the edge of the building and flowed down the plaster on the inside of the garage. I reject the suggestion that the water entered the garage through the roller door to it. Whether the door was open or closed during the time it rained, any water flowing down the drive would be caught in a drain immediately in front of it and, in any event, would have been impeded by a concrete ramp sloping up towards the garage floor on the other side of the drain. I find that a not insubstantial amount of water did enter the garage, either through the open cavity walls or through or at the edges of the flooring above it, which was totally unprotected prior to the plaintiff using one of his own tarpaulins to cover the rest of the roof.

11 Considerable time was spent during the trial debating whether any further precautions ought to have been taken to prevent rain damage or whether little or no damage was likely to be caused had the plaintiff done nothing. There was, in consequence, exploration of questions such as whether the flooring was capable of being penetrated by rain water, whether there was any real likelihood of damage to the plaster lining of the lower storey rooms if water penetrated the cavity wall, whether in that event contact with electrical wiring might constitute a hazard and whether the tarpaulins erected by Maveric were sufficiently secured to the framework and taut enough to prevent the formation of puddles on the roof which might destabilise the canvas and permit water to penetrate in unacceptable quantities. While a failure on the part of the defendants to adequately protect the building from such hazards is relevant, the real question to my mind is whether or not it was foreseeable by either of them that while the ceiling at the stairwell was non-weight-bearing, the plaintiff or one of his household might have occasion to ascend to the upper floor and be injured if he unwittingly trod upon it. However, I find that the flooring did permit water to penetrate through it and that there was a risk that water falling on the unprotected floor might seep to the extremities and enter the lower storey, either through the top of the cavity wall or by flowing down the inside of the walls of the garage. I find that the bay window area was vulnerable and needed extra protection and that the floor above the garage was likewise vulnerable. Mr Williams, a builder of considerable experience called by Maveric, expressed the opinion that the amount of cover provided by Laver and erected by Maveric was "just adequate". Asked if it had been his house which was being renovated and it was covered with two tarpaulins only, as shown in the photographs taken shortly before the night of 10 March 1994, that is, without cover over the garage, and further, if he had furniture stored therein and rain was anticipated, would he have asked the builder to put a further tarpaulin on, he said he certainly would have. I further accept the evidence of the plaintiff that a number of ropes were not tied, that there were pools of water in the tarpaulin above him and that through his efforts, the two existing tarpaulins were in the process of being rendered taut and secure immediately before his fall.

12 Was it foreseeable that the plaintiff might ascend to the new first floor and hence be exposed to the danger of stepping into the unprotected cavity over the stairwell? I am not persuaded that it was foreseeable by Laver, or if foreseeable, that Laver was in breach of any duty to the plaintiff to guard against the risk that the plaintiff might suffer injury. It is not clear whether the tarpaulins supplied by Laver were sufficient, no matter how erected, to cover the area that needed to be covered or whether the way in which Maveric erected them, one substantially overlapping the other, resulted in most of the garage being exposed to the elements. Maveric was the sub-contractor in daily occupation of the premises, whereas Laver's supervisor, Mr Hoffman, only visited periodically and then only to co-ordinate the building works. Even before the evening of 10 March when it rained so heavily, it was, in my view, foreseeable by Maveric that one of the plaintiff's household might have occasion to go on to the new upper floor and inspect the work done to date. In these circumstances, there was already a risk that such a visitor might be injured by stepping into the cavity if he were not warned of its existence, or if the simple and inexpensive precaution of nailing boards over, or erecting a barricade around, the cavity were not taken. Whether that be so or not, however, when Mr Eric Verdouw, the second named defendant's foreman, so concerned at the heaviness of the rain that he drove around to the site to ensure that the canvas was still on the roof as he had left it, came to the premises, it must have been abundantly obvious to him that the figure in the garden wearing a yellow raincoat was the plaintiff or a member of his household and that he was also concerned about the risk of water damage and hence might venture on to the roof to check the adequacy of the cover and possibly to improve upon it. In those circumstances, there was, in my view, a clear duty upon him to alight from the car and either to reassure the plaintiff that no action on his part was warranted or to warn the plaintiff that if he insisted upon going on to the first floor at night with only a torch to illuminate the scene, there was a danger in the form of the unprotected stairwell. In my opinion, Maveric's foreman was negligent in failing to adopt either course and as a result of that negligence, the plaintiff sustained his injuries. The first named defendant is vicariously liable for the negligence of the second named defendant and in consequence the plaintiff is entitled to judgment against both; but notices of contribution having been exchanged by both defendants, I find that having regard to the extent of Maveric's responsibility for the damage, it is just and equitable that it bear the whole responsibility therefor.

13 I take that view because Maveric created the hazard in the sense that it cut out the stairwell cavity and left it non-weight-bearing; it failed to place any guard tapes or rails around it; it failed to nail boards over the top of it so as to prevent anyone stepping into it; it was intended that Maveric would install the staircase to be manufactured by Laver's joiner about a fortnight later and hence Maveric knew that unless protected, the cavity would remain a hazard until that time; Maveric had immediate occupation of the site and had the responsibility of making it secure against the weather at the end of work on the day of the accident; and most importantly, Maveric's foreman knew shortly before the accident occurred that while rain was falling sufficiently heavily to attract him to the site to satisfy himself it was adequately protected, the plaintiff or one of his family had similar concerns and was out in the rain apparently making some enquiry about the risk of water damage. Laver's only basis for liability being vicarious, I consider it just that it should have a complete indemnity.

14 A plea of contributory negligence on the part of the plaintiff was made by each defendant. I am not satisfied it has been made out. Mr Gunson for Laver submitted that I should find the plaintiff sought to mislead the Court about his movements that night and that he did so to conceal the fact that he was aware of the existence of the cavity. It was submitted that he had in fact been deliberately standing on the window trimmer rather than on the floor or a noggin because he knew the gap was there behind him and had been endeavouring to empty a puddle in the tarpaulin above him with a piece of timber but had stepped down into the cavity, negligently forgetting that it was there. Mr Gunson placed some reliance on the following passages of cross-examination:

"You say you didn't see the place where the stairs were to come through? ... That's correct.

Or is it just that you forgot about them while you were working upstairs due to the pressure you were under? ... That's correct."

And after questions as to the plaintiff's crab-like movements along the noggins:

"And what about in this area what did you do there. Did you step up and down as you came across working from the right across to the stairwell? ... I did.

You stepped up and down? ... I stepped up and down, I also stepped sideways.

It must have been patently obvious to you up there that there was a stairwell there, a gap for it? ... I was not consciously aware of it at that time.

Or just as you said yesterday, forgot about it while you were moving across? ... Yes.

Right. And it's quite possible that you saw it was there and whilst you were carrying out your activities tying down things, simply forgot? ... Yes.

And it's more likely than not, is it not, that you did see it, working up on the noggin or the window ledge as the case may be and simply forgot that you were there and made a mistake? ... Quite possible."

15 I accept the honesty of the plaintiff's evidence and I do not accept that he attempted to mislead the Court. I am satisfied he could not be sure what part of the framework he was on when he stepped down into the stairwell cavity, but he was adamant that he was attempting to tie ropes at the time and not then pushing puddles of water off the tarpaulin. I accept that evidence. It is true that as the proprietor of the building he must have known the general vicinity of the stairwell cavity and must have appreciated that the staircase had not yet been installed, but there is nothing in the evidence which suggests that he was conscious of the existence of any depression in the flooring at that point still less that he was conscious of the fact that at the bottom of the cavity there was nothing more solid than plaster sheeting. I accept that he was not told such details and did not know them.

16 I am not satisfied that the general allegations of negligence pleaded against him are made out. They were to the effect that he had failed to keep any sufficient look-out or to take adequate steps to secure his own safety while present on the uncompleted first storey. It is claimed that he ought to have known it was unsafe to enter upon that floor. The pleas would have more substance had the plaintiff chosen, through idle curiosity, to inspect the upper storey at night by torch light; but he was faced with the risk of damage to the building through heavy rain when the roof was not fully covered by tarpaulins. In those circumstances, it was, in my view, perfectly reasonable for him to have ascended to the roof to inspect and to take the remedial action he was attempting. It is also claimed that he was negligent in failing to contact either the contractor or sub-contractor and seek their advice and assistance. Laver had given him a contact telephone number for Mr Hoffman during working hours but this telephone number was Laver's office number in any event. There was some evidence that Mr Hoffman had a mobile telephone, the number of which he gave the plaintiff; but he said it was his practice to switch it off at the end of the day's work, so effectively the plaintiff had no means of contacting Laver or its representative. As to Mr Verdouw, there was evidence that a telephone number was inscribed fairly obviously on his work van which came to the plaintiff's home each day, but again he was unavailable at the crucial time because he was at a meeting and did not take his telephone with him. However, while the plaintiff may be the subject of some valid criticism for not having made any attempt to contact the builders for advice and assistance, his decision to investigate and take action in the circumstances was not an unreasonable one and does not demonstrate a failure to take care for his own safety, amounting to contributory negligence.

17 The plaintiff was born in England on 1 May 1944 and was consequently nearly 50 years of age at the time of the accident. He left school at age 15 and undertook an apprenticeship in mechanical fitting and turning with the Central Electricity Generating Board. He was employed by the British Merchant Navy as a junior marine engineer for 3½ years and immigrated to Tasmania in 1969 when he was employed by the Hydro-Electric Commission. He remained in this employment until retrenched in August 1993. At this stage he was employed as a mechanical supervisor and in the year prior to his retrenchment had a taxable income of $66,488 derived from his employment. He immigrated in order to marry, as he had met his wife on earlier visits to Hobart. The couple were to have two sons. Throughout his permanent employment with the Hydro-Electric Commission, he worked at the Glenorchy Workshops for two years, then at George Town for four years, then Strathgordon from 1975 when he was appointed to the position of leading hand until 1980, when he moved to Tullah. By 1984, the family had decided to return to Hobart and their house was built by Laver in that year. The plaintiff continued to work at Tullah and thereafter Strathgordon, during which time he had a secondment to Papua New Guinea for about eight weeks. He also spent time in Queenstown, where he was promoted to senior supervisor. The work he did was relatively arduous and he worked nine hours or more each day during the week, and an eight hour shift every second Saturday. He described his duties thus:

"I had responsibility for checking overseas shipments which came in from overseas to make sure that all the goods had arrived on time and in good condition. I had to make sure they were stored correctly and in the right order so we could get them you know in a correct sequence to, for installation purposes. I had to delegate work on a daily basis through two Leading Hands I had. I had to undertake industrial relations to a certain extent because it was all part and parcel of my job to maintain if you like good relations with other workers and other areas of staff. I had to work also with other supervisors from other Departments to make sure the job, my job, was co-ordinated with their work also so that we didn't conflict. I also was responsible for interviewing prospective personnel. I had time-keeping duties, I had reports to write and records to keep for both the HEC and for the overseas contractors who required these to be kept for warranty purposes."

He said he had a "hands on" role and, asked to explain in what circumstances he had to adopt that role, said:

"The one that was important during various stages of construction, all stages of construction in fact, that I was very familiar with everything that was happening because ultimately it was my responsibility that things got put together correctly. It would entail me - I would need to get in to areas which were hard to get at, I would have to inspect things, I would be responsible for making sure that things were put in correct places at the right time and it was necessary also for me to if I saw somebody who needed a hand I would give them a hand, it was the nature of the beast, your Honour, that if you saw somebody struggling then you helped them. So it was really a hands on thing as much while I was actually doing the inspections because I had to get into places to see and some of the areas were quite restrictive."

Periodically he had to lift weights of up to 30 kilograms without aid.

18 Prior to his retrenchment, he swam regularly in the Strathgordon indoor pool and engaged in fresh water fishing in the Hydro lakes and sea fishing in areas of the D'Entrecasteaux Channel where his father-in-law was a professional fisherman. He played some indoor cricket, shot at targets in the bush and enjoyed wood turning. He did his own car and house maintenance up until the time of the accident.

19 After his retrenchment, he was engaged by the Hydro-Electric Commission in contract work for about six weeks on the Anthony Power Station at an hourly rate of $48.11. In the fortnight ending 18 February 1994, he worked 109 hours and received a gross income of $5,247.26. At the time of the accident, that contract was concluded, but arrangements had been made for him to be employed at the Trevallyn Power Station as an employee of a company called TRACS Workforce Pty Ltd. The task was to supervise the refurbishment of that power station. The engagement was due to commence on the Monday following his accident and was expected to last about 12 - 15 months.

20 Upon his fall through the ceiling to the floor below, the plaintiff felt extreme lower back pain and had a pain in the groin as well. For 10 - 20 years prior to the accident, he had experienced periodic back pain which did not interfere with his work. By the time he was retrenched, he had accumulated almost 200 days in untaken sick leave and had not consulted a specialist about his back. When he did suffer pain, he took anti-inflammatory medication, but only on very rare occasions. He did, however, have a CT scan at the suggestion of his general practitioner. After the accident, he was discharged from hospital on 16 March with a lumbar support and a walking stick. A month later he was told at the out-patient clinic that he had probably sustained a fractured rib. Subsequently he was referred by his general practitioner to Mr Mills, an orthopaedic surgeon, who first saw him on 14 June 1994. Mr Mills found that the plaintiff had sustained a burst fracture of the L1 vertebra. He recorded the plaintiff's symptoms as follows:

"Mr Payne has ongoing back pain related to heavy activity. He controls the level of pain by limiting his activity level. He has sharp pains associated with twisting movements. He also has more sharper pains associated with jarring such as missing a step off a kerb etc. After a prolonged period of standing, he experienced a tingling sensation in the lateral aspect of both sides. It tends to be relieved by squatting. Mr Payne states he is unable to run. He exercises by swimming two to three times per week. He is on no current medication and has no sphincter disturbance. He states his walking distance is not particularly limited. He finds it easier walking uphill rather than down slopes. He is not aware of any marked restriction of motion, but is aware he has lost flexibility over the years since his injury."

"Mr Payne has sustained a major injury to his L1 vertebra. This burst fracture is entirely consistent with having been sustained in the fall of 1994. A plain x-ray of June 1994 demonstrates some narrowing of the L2-3 disc space with anterior osteophyte formation indicative of degenerative change.

I would consider that the vast majority of Mr Payne's current symptomatology is secondary to his burst fracture and is not due to the natural progression of his pre existing degenerative change in the lumbar spine.

It would also be my contention that given Mr Payne's description of his relatively minor symptoms associated with his degenerative change prior to this fall, that it would be likely that he would have followed the usual natural history of this condition and not have been unduly disabled with symptoms associated with the degenerative change as time progressed.

It would also be my opinion that if as anticipated Mr Payne followed this usual pattern, he would not have been prevented from pursuing work of a manually based nature in the absence of his accident on the 10th of March, 1994."

Reviewing the plaintiff in March 2000, Mr Mills expressed this opinion:

"Mr Payne has sustained a significant skeletal injury consisting of a burst fracture of his L1 vertebra. This injury is entirely consistent with having been sustained in the manner described. There are some mild degenerative changes at the T9-10 and at the L2-3 levels. These are likely to be related to the same injury.

Although the burst fracture has resulted in significant narrowing of the spinal canal, Mr Payne has escaped without any obvious neurological damage. He does have some symptoms of numbness associated with forward flexion, which may represent a minor tension injury to the sensory nerves to this area. It doesn't need further investigation or treatment and is unlikely to cause any long term problems.

Likewise the spinal canal stenosis resulting from the burst fracture hasn't produced significant symptoms associated with spinal canal stenosis.

Given that there doesn't appear to be an interval change in the degree of spinal canal stenosis between films taken in 1996 and in March 2000, then I remain optimistic that such symptoms will not develop in the future.

As a result of the disability associated with this injury, Mr Payne is unsuitable for heavy manually based work. He would be suitable for light sedentary work avoiding lifting, carrying and prolonged periods of bending."

He confirmed his opinions in oral evidence and I accept the entirety of his evidence.

21 The plaintiff returned to work in September 1994, taking up a similar position at the Trevallyn Power Station to that offered him six months earlier. I find that he was not fit to return to any gainful work prior to that time and that his net loss of earnings amounted to $13,869. He worked at the Trevallyn Power Station for about nine months and thereafter at the Electrolytic Zinc Works doing supervisory work not of a "hands on" nature. As an employee of TRACS Workforce Pty Ltd, he was found full time work of a supervisory nature for about two years from September 1994, but gave up that employment because he did not think the company was being run as it should have been and he felt he could better himself elsewhere. He described his work as reasonably well paid, namely about $30,000 a year. He had hopes of obtaining employment of the same nature with a company called Setori Engineering Pty Ltd, but this did not come to pass for about three to six months, during which time he had about six weeks' work at the Tungatina Power Station. Although looking for other work, he was unable to find it. He did not seek out work from TRACS Workforce Pty Ltd. He said he was employed by Setori Engineering Pty Ltd on a casual basis for about two years, working for them about 50 per cent of that time and also for a company called TPW Electrical Pty Ltd. The latter work lasted for about six weeks of the two year period. However, he later said that he finished working for Setori Engineering Pty Ltd about the end of 1998 and was employed by TPW Electrical Pty Ltd for about six weeks from 22 March 1999. He ceased to work for Setori Engineering Pty Ltd because there was no more work for him. He agreed that throughout the times he did work after September 1994 he was able to cope and that he took no time off from work. In July 1999, he commenced work for three days per fortnight as a maintenance man at Mary's Grange Nursing Home, where his wife also works. At the time of the trial, he was still working there. Asked if it was his intention to try to find work again with Setori Engineering Pty Ltd, he replied "No" and when asked why, said "I have no answer to that at this point in time." He said he would consider an offer from Setori Engineering Pty Ltd to accept a job similar to what he had been doing before and that he had not applied to Skilled Engineering, which apparently took over TRACS Workforce Pty Ltd, "because I have had on going work, albeit casual, with Setori and TPW". Pressed as to why he had not made such an approach when he was not in work with the other companies, he said "At that time I may have wanted a rest."

22 Describing the residual effects of his back injury, the plaintiff said that about 12 months after the accident he experienced severe backache at times if he was standing for any length of time and had numbness and tingling down the sides of his legs. He said he still experiences these sensations and that his current symptoms are that his back gets extremely tired and he has difficulty standing for long periods, while the numbness is very tiring and draining. He tries to sit as straight as possible when he has to sit, but at home, instead of sitting, he finds it more comfortable to lie on the floor. Being at home more frequently than his wife, he does more household chores but finds difficulty in ironing and washing up while standing. Bending over for an extended period causes numbness across the small of his back. His weight has increased by about five kilograms, he could not engage in rifle shooting because of the posture, he cannot row a boat with comfort, he finds difficulty walking on uneven surfaces or in mowing the lawn, he cannot work at the lathe for more than about a quarter of an hour and he has to stop on lengthy car journeys because of tingling in the legs. He suffers sleep disturbance from backache on occasions, but it is infrequent. He has difficulty with sexual intercourse with his wife. He finds it difficult to bend to pick things up and that he cannot do things spontaneously. He has had to limit the amount of maintenance work he does on his car and has also found limitations in painting and wall papering his house. He does not engage in regular recreational sporting activities but does swim. Expenses incurred in respect of therapeutic swimming were proved and I am satisfied that they were reasonable and should be allowed as special damages.

23 I find that the plaintiff suffered a painful and, for several months, very debilitating injury as the result of his fall. Although he was hospitalised for only a short time, it was his wife's view that he was discharged too early and I think there may be some substance in this opinion. After about six months, the plaintiff recovered sufficiently to resume work, but since that time he has been subjected to considerable pain when he is required to stand for any length of time and to numbness and tingling sensations. He was able to continue working for several years at tasks for which he was trained and in which he was able to avoid physically demanding effort. Although he was able to hold down jobs for a considerable period of time in work places away from the comforts of his own home without suffering incapacitating symptoms, I accept that he suffered a degree of discomfort which rendered his work quite taxing and which had a significant impact on his lifestyle. Some of the losses of amenities of which he complains are not, however, of great moment. He said he was looking forward to playing golf, but prior to the accident his golf had not progressed beyond hitting a few practice balls on a nearby oval. His shooting activities had, prior thereto, been confined to shooting at makeshift targets in the bush. He had joined a rifle club but had not engaged or attempted to engage in any activities there. Joining a club seems to have been undertaken as a means of retaining his firearm. His salt water fishing was mainly undertaken with the boats available to his father-in-law, but as the latter has since died, it is unlikely that he would have, but for the accident, undertaken much fishing from boats anyway. An attempt to take his grandson fishing off the rocks at Kingston Beach was frustrated by his inability to walk confidently on the uneven surface, but fishing from a jetty would still be within his capabilities and should be just as enjoyable. Indoor cricket was a sport he engaged in when living at remote work sites such as Strathgordon and had not been engaged in for some years prior to his accident. Nevertheless, many of his activities at home have been curtailed by his pain and tiredness, as have his marital relations. I assess damages for pain and suffering and loss of amenities, including the satisfaction of being able to remain in the workforce to the extent that, but for the accident, he would have, in the sum of $25,000.

24 His present work involves "general handyman stuff: checking out wheelchairs, making sure they're safe, re-stocking cupboards with equipment required for the residents there, changing light bulbs and the like". He is paid a little over $14 per hour for an eight hour day and he works three days per fortnight. Such a rate would return a gross salary in the order of $8,800 per annum. He said in evidence that there was a possibility he might be able to increase the number of days or hours employment at the nursing home, but nothing was definite. A claim is made for general diminution of the plaintiff's working capacity as the result of his loss of confidence in his back and in his inability to perform the heavier aspects of work as a mechanical supervisor. It is not clear from the evidence what his earnings were in the six months between his retrenchment in August 1993 and the accident in March 1994, the only direct evidence being the pay slip for the fortnight ending 18 February 1994 and his statement that he worked on the Anthony Power Station for about six weeks. The income tax return for that financial year does not differentiate payments before and after retrenchment. Shortly after the Anthony Power Station work was concluded, he had a six month contract to work on the Trevallyn Power Station, which he was unable to take up until September 1994. Another person worked in his stead, but when he was able to work, he worked there for some nine months. His taxable income for the years ending 30 June 1995, 1996, 1997, 1998 and 1999 has been $34,164, $32,897, $19,937, $9,227 and $17,873 respectively. The initial receipts indicate an ability to hold down a job which he described as reasonably well paid and which, being casual, probably represents the level of paid activity which, at his age, he would have been content with but for the accident. However, in the last few years as the result of a deliberate choice on his part, he has not sought to maintain that level of employment. The choice is the result of a number of factors including the stress on his back, the limitations that creates on his ability to obtain work as a supervisor who may be required to do "hands on" work at times, combined with a disinclination to approach previous employers because of an undefined dissatisfaction with the manner in which they conducted their operations. No claim is made for lost earnings to date, but it is said that he has suffered a diminution in his working capacity due to the accident and its effect upon him.

25 When he was retrenched, he was still only 49 years of age and was a fit man. He was prepared to undertake work in his own field of expertise away from home and, had the accident not occurred, it is likely, in my view, that he would have continued to work gainfully for another ten to fifteen years. I find his pre-existing back problems would have been unlikely to have hindered him in doing so, although they should not be ignored when allowing for contingencies. According to Mr Gilbert who runs a recruiting agency for people of the plaintiff's experience, there is presently ample work available. It varies in terms of length of engagement, but is well paid and the option would have been available to the plaintiff to work for periods of time which suited him and yet be amply rewarded financially. Evidence of the plaintiff's pre-accident intentions was sparse and I do not feel justified in concluding that he would have worked for longer periods than in fact he did after his return to work in the years ending 30 June 1995 and 1996. Thereafter there was a decline in his level of activity due largely to his dissatisfaction with his employer's method of operation. What he has undertaken he has been able to cope with, but as time goes on, I think it is clear that his earning capacity is diminishing due to the pain and tiredness he constantly suffers on exertion. He is now 56 years old and in my view no longer able to undertake the work which, but for the accident, he would have been able to undertake and which would have brought him in an income of about $30,000 per annum gross. He retains a capacity to undertake maintenance work for at least two days per week and I find that he could undertake some casual work of a supervisory nature for short periods of time without undue stress. It is difficult to quantify a sum which would give fair compensation for a diminution of his earning capacity which presently is, and is likely to remain, productive of some economic loss to him. If, but for the accident, he had continued to work hereafter until age 65 earning a gross salary of some $30,000 and if hereafter by reason of his accident-produced disabilities, he can achieve only earnings of $10,000 gross from his job at Mary's Grange but could supplement those earnings with occasional casual work, I consider that an annual loss of the order of $10,000 net could be predicated over the next nine years of his anticipated working life. The present value of such a loss would be in the order of $67,600 using 7% tables. Discounted for contingencies by 20%, this would produce a figure of $54,080. Using this as a very rough yard stick, I consider a lump sum of $50,000 would provide reasonable compensation for the effect which the defendants' tort has had upon his earning capacity.

26 Special damages in the following sums have been proved:

27 There will be judgment for the plaintiff against both defendants in the sum of $77,866.35, made up as follows:

The first named defendant is entitled to contribution from the second named defendant to the amount of a complete indemnity.