Torts - Negligence - Essentials of action for negligence - Reasonable foreseeability of damage - Other general factors - Injury extremely unlikely to occur. (Aust Dig Torts [24]). March v E & M H Stramare Pty Limited and Another (1990 - [1991] HCA 12; 1991) 171 CLR 506, applied.

HOBART, 5, 6, 7, 12, 17 and 18 February 1997 (hearing), 25 June 1997 (decision)

1. The plaintiff claims damages against the defendant for injury arising out of an industrial accident claimed to have occurred at the premises of the defendant on 14 April 1993. The defendant denies liability but says if there was negligence that it is entitled to indemnification from the third party since, at all material times, it was the employer of the plaintiff and was responsible for any breach of duty owed to the employee.

2. The third party, a contractor engaged in the fitting-out of a catamaran being constructed by the defendant on its premises, employed the plaintiff as a metal worker. The overall responsibility for the planning, scheduling and co-ordination of the work remained with the defendant but within the day-to-day conduct of particular operations the third party was expected to exercise its own supervision and decision-making processes in the performance of work for which it had contracted. The fitting out of the vessel required certain works to be performed at particular stages depending on the completion of interdependent structures and the engineering requirements of machinery, electrical and other components. At any time there were supervisors and employees of the defendant and other contractors, including the third party, working together in the same location on the vessel. The plaintiff elected to commence proceedings only against the owner/occupier of the premises and vessel whilst the defendant in turn seeks indemnification as against the employer on the basis that it owed any relevant duty of care to the plaintiff.

3. The particular work, which it is said gave rise to injury, concerned the installation of a hand rail fitted to a stairway providing access between two decks of the vessel. From the lower deck entry was gained to a stairway through a hatch provided with a fireproof door. At the base of the stairway was a small landing stage some two metres by one metre in area. The fire door opened inwards to the port side of the stairwell and when fully opened fitted close to the bottom step. Some ten steps then led to the above deck. Hand rails were fitted to both sides of the stairwell, although there was conflicting evidence as to whether the port rail ceased at or near the bottom step or extended towards the stern bulkhead. At the time of the claimed injury the hand rail had not been capped or rounded off so that its end point consisted of a sharp angled section of extruded aluminium. The plaintiff's case was that the fire door had been fitted and the unfinished hand rails installed when he was engaged in measuring the base of the stern port bulkhead to determine the precise fitting of fireproof insulation required by the specifications. Having completed the measurements, he began to stand up but in so doing struck his right shoulder on the underneath of the unfinished hand rail causing damage to his supraspinatus tendon. The defendant's primary contention involved the question of whether the injury was caused by the state of the extrusion or whether contact of either the uncapped or capped end would have produced an identical consequence. A secondary basis was that the plaintiff was working on the construction of a complex vessel and that it was impossible to complete each fitting before the next phase of construction had commenced and consequently there could be no foreseeability of the type of occurrence complained of by the plaintiff.

4. The plaintiff claimed that there had been a failure to warn him of the presence of the uncapped edge of the hand rail and a failure to either complete the "capping" beforehand or to provide interim protection against potential harm. The plaintiff originally claimed that the hand rail extended some 500 - 600 mm from the bottom step, although most of the evidence warrants the finding that it did not extend much beyond such step. He was aware of the existence of the hand rail but not of its exact and unfinished condition. Accepting that the hand rail extended only to the base of the steps the injury was caused when the plaintiff had completed his base measurements, moving slightly backwards in a turning motion and in attaining an upright position he struck the railing.

5. There can be no doubt but that the plaintiff has suffered serious injury. He claimed that he felt pain after contact, which he mentioned to a workmate Y and supervisor Z. He saw an indentation to his shoulder but, despite pain and limitation of movement, continued with his work for some two weeks after the incident on 14 April 1993. On 27 April he saw his general practitioner and in accordance with medical advice desisted from further attendance at work.

6. In June the plaintiff was referred to a specialist, Dr Francis, who diagnosed the existence of a tear to the rotating cuff of the right shoulder. Mr Mills, the orthopaedic surgeon who performed the operation, described the injury in the following terms:

"MRI scan confirmed a large partial tear of the supraspinatus tendon ... The ultrasound scan demonstrated impingement of the supraspinatus tendon on the subacromial arch and coraco-acromial ligament".

7. The ensuing operation in that month was unsuccessful due to infection and the plaintiff remains, despite extensive rehabilitative procedures, seriously disabled. The operation and the ensuing infection have made it difficult for medical practitioners to evaluate the exact nature and extent of the injury. Witnesses for both parties agreed that there had been a tear to the supraspinatus tendon which joins the rotator cuff muscle and which passes above the humerus and stabilises the head of the humerus against the upward pull of the deltoid muscle. It is joined to the humerus and is protected from above by a bony plate. The contention between the parties is whether the injury was caused by the penetration of a join in the bony plate by a sharp object, such as the edge of the uncapped railing, or by either physical contact with a blunt object or a reflex action occasioned by sudden contact. If the former is the finding, then the questions of foreseeability and duty are pertinent to any negligence in permitting the plaintiff to work in the vicinity of an uncapped rail, whilst if the latter be the case, it matters not whether the railing was capped or uncapped. If contact with the rail (per se) caused the injury either by contact or as a consequence of reflex action, then the defendant's position is enhanced since the plaintiff knew of the existence of the rail and it could not be said that its position was either unusual or inherently dangerous.

8. The plaintiff agreed that following contact he fell or reacted in such a way that he returned to the floor and that he used his hands to cushion such movement. Dr Francis believed that there had been penetration by an object consistent with the uncapped rail. He believed that if penetration occurred, the muscle would be pinned and the resulting reflex action would cause a tearing to the muscle and tendon. He thought it less likely that impact with a rounded object would achieve the same consequence, "because you won't have that entrapment and impact". He advanced three mechanisms which could have produced the injury, namely:

- impact by a sharpened object; - spontaneous tearing made more likely by the aging process; - tearing as a consequence of falling.

9. In a report dated 19 December 1994 Dr Francis expressed the opinion that:

"(1) It is possible to have a rotator cuff tear from blunt trauma

(2) I accept that it is more likely to have been a rotator cuff tear in association with a kinetic or jarring injury to the shoulder

(3) As Dr Bye proposes, it is quite possible that it was the response and the avoidance manoeuvre that Stephen Mifsud pursued that could have caused the rotator cuff tear. Whilst accepting this, the response and pain associated with hitting an uncapped aluminium pipe as opposed to a capped or curved end, is likely to be significantly different because of the pain involved.

In my opinion it is more probable than not that the fact the (sic) aluminium structure was uncapped contributed to the rotator cuff tear, by whatever mechanism."

10. Mr Mills, who had observed the same form and nature of trauma as described by Mr Francis, was of the opinion that in his experience it is not unusual to find trauma of the nature discovered without a prior history of trauma. The injury is made prevalent with advancing age and is not necessarily a consequence of impact. The experience of the plaintiff is consistent with the opinion expressed by Mr Mills. In 1982 the plaintiff suffered an injury to his left shoulder. He claimed that whilst working on renovations he had stood up, striking his shoulder on a tank stand causing injury which resulted in his making a workers compensation claim which was settled in 1991 some three months before commencing work with the third party. There was no claim that there was anything inherently dangerous in the object which caused the injury.

11. The defendant placed reliance on the evidence of Mr Bye, an orthopaedic surgeon, who had examined the plaintiff and who had reviewed the available medical material. He expressed his opinion in the following terms:

"In my opinion Mr Mifsud's injury to his right shoulder was not caused by the direct impact on the hand rail, but rather the reflex pulling back by Mr Mifsud due to the pain that he experienced when he impacted on that rail."

12. Although response to pain is subjective, he believed that the response to contact would have been similar irrespective of whether the railing was capped or uncapped. It was the impact which caused pain and the reflex action to pain which caused the "tendinous disruption".

13. In response to the proposition that the injury required penetration by a sharp object consistent with the uncapped rail, he could not:

" ... imagine a sharp aluminium rail causing a deep injury as described without a recoil and would feel that the disruption probably occurred with Mr Mifsud pulling away from that rather than the direct impact causing the disruption".

14. He believed that it was the recoil action which caused instant disruption to the tendon rather than any subsequent trauma caused by falling to the ground. He maintained that opinion because:

"Most tendinous disruptions, be it tendo-achilles or rotator cuff, occur due to muscular action by the tendon working against the limb when that limb is fixed in some way. It does not involve a laceration or an impact but rather the muscle tries to contract to lift the foot or the arm and that weight to be moved is too great for the tendon. There is thus a tendinous disruption which tendinous disruption occurs in a fairly constant point, that point of the tendon being a poorly vascularised part of the tendon which may well have been eroded by the overlying acromion. Mr Mifsud's disruption therefore fits in clearly with a force being applied to a shoulder which has been caused pain with an intrinsic tendon disruption".

15. The onus lies with the plaintiff to show that his injury was caused by the fault of the defendant. Accepting, for the purpose of analysis, that the failure to "cap" the rail was negligent, the question is whether, as a matter of fact, there is a relationship between a breach of duty and injury in accordance with notions of physical sequence. I do not accept that the plaintiff has established that the edge of the "uncapped" rail penetrated the "bony shield" and caused the injury complained of. I do not accept that the evidence establishes that the consequence was caused by the act of impact. It is obvious that the eventual result of contact was injury, but the "uncapped" nature of the rail was not a necessary pre-condition to consequence. My finding is that the plaintiff hit his shoulder on or near the end of the rail at a position near the bottom of the stairs. The contact, together with the attendant pain caused a reflex action which caused the plaintiff to move forward either fully or partially to the floor whilst holding out his hands to lessen the force of impact. There was no penetration to the tendon. The finding that there was no penetration does not, of itself, preclude success. The second question is whether the plaintiff has established that the "uncapped" rail caused a consequence because it produced a reflex response by virtue of either increased pain or sensation. The question is dependent on the acceptance that had the rail been "capped", the response would have been minimal and not likely to cause the circumstances giving rise to injury. I do not accept that the plaintiff has shown that his shoulder came into contact with the very end of the rail, but even if such were established, I do not accept that contact at the point claimed involves a nexus with the injury. The legal concept of causation "differs from philosophical and scientific notions of causation" (March v E & M H Stramare Pty Limited and Another (1990 - [1991] HCA 12; 1991) 171 CLR 506, per Mason CJ at 509). In the circumstances of this case "but for" the presence of the rail the injury would not have occurred, but as Mason CJ pointed out in March v Stramare (supra at 516 - 517):

" ... the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations. That in itself is something of an irony because the proponents of the "but for" test have seen it as a criterion which would exclude the making of value judgments and evaluative considerations from causation analysis: ..."

16. But even if the question is whether "but for" the presence and impact of the uncapped rail, a result favourable to the plaintiff will only occur if the court is satisfied that the existence of the sharp edge itself caused a response different to that flowing from contact with a capped rail of a nature sufficient to produce injury. The Court is not satisfied that the plaintiff has established such causation.

17. Even if the question of causation were to be resolved in favour of the plaintiff, it does not follow that he ought to succeed in his cause of action. The particulars of negligence claim that the defendant:

"(a) failed to warn the plaintiff of the presence of the jagged edge of the handrail;

(b) failed to round off the hand rail;

(c) failed to cover the jagged edge of the handrail with protective material."

18. The duty of care owed by the defendant is that of the nature stated by the High Court in Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479, and is not determined by reference to the status of the defendant as occupier of the premises or owner of the vessel. The scope of the duty was set out by Mason J in The Council of the Shire of Wyong v Shirt and Others (1979 - [1980] HCA 12; 1980) 146 CLR 40, when he said 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."

19. There was no clear evidence as to whether it was the responsibility of the defendant to install the hand rail, or whether the task was to have been performed by another contractor employed in the construction of the vessel. But the duty owed by the employer was a non-delegable duty (Wilson & Clyde Coal Co Ltd v English [1937] UKHL 2; [1938] AC 57) and different considerations may apply had the plaintiff sued his employer. An employer may be liable for the negligence of an independent contractor whom it has engaged and made responsible for providing a safe system of work for its employees (Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672), but no such issue is pleaded in this case. It may be that even had "failure to provide a safe system of work" been pleaded against the defendant, the principles outlined in Stevens v Brodripp Sawmilling Company Proprietary Limited and Ors (1986) 160 CLR 16 would have resulted in a conclusion similar to the one which is reached in this case. In any event, control of the activity of the plaintiff had not been transferred by the third party to the defendant. The plaintiff had been directed to perform his work at the relevant site by a supervisor employed by the third party. The plaintiff relies on the ordinary duty, the test of which includes foreseeability.

20. The plaintiff was employed in the construction of a complex vessel. That construction involved the fabrication and installation of many interdependent components in a sequence. A number of sub-contractors were involved and many different tasks were in hand at any particular time. It was impossible to install some items of equipment until the completion of other work. The plaintiff had previously been involved in the construction of a similar vessel and was aware of the general nature of the construction work. He had been directed by the third party to assist a fellow employee in the fitting of the fire-proof door leading to the stairwell. He was aware of the existence of the hand rail and ought to have been aware that each component installed was not necessarily in completed form prior to the next phase of construction. He was involved in the measurement of an as yet completed installation.

21. In order to find that the defendant was subject to a duty to warn the plaintiff, the Court would be required to be satisfied that the defendant had knowledge of the state of the rail, or at least that it ought to have possessed knowledge of risk of injury. Leaving aside the defendant's contention that the plaintiff has pleaded actual knowledge, and accepting the defendant's proposition that the defendant had knowledge of the system of construction and was aware that installation proceeded in sequence, it is nevertheless necessary to show that the defendant ought to have foreseen the risk of injury. In my view, the plaintiff has not established the last ingredient. Given the nature of construction, there was always a risk that someone would come into contact with the protruding object or piece of equipment. The end of the hand rail posed no particular risk of injury. It would have been impossible for the defendant to have warned, except in the most general way, every prospective occupant of the vessel, either orally or by sign, of every protruding object, piece of equipment or installation. The possibility of injury (assuming causation) in the manner claimed by the plaintiff was minuscule and the magnitude of risk slight.

22. There was an obvious duty on the part of the defendant to complete (or ensure completion by a contractor) a hand rail before delivery of the vessel to an operator. Had a passenger (especially a child) hit the hand rail in the manner claimed by the plaintiff, and injury caused by that impact, then it could be said that the defendant was in breach of duty. There was no duty to complete the hand rail before any other work was commenced in that area. To hold otherwise would be to require that the hand rail was to have been the last item installed, or was to have been completed in one operation before any other work was commenced.

23. The secondary position advanced on behalf of the plaintiff was that if it was not feasible to complete the capping prior to the commencement of the defendant's task, then some form of protective fitting or cloth should have been fixed to the end of the rail. It is unlikely that a cloth would have altered consequence, but it matters not since I am satisfied that the plaintiff was aware of the existence of the rail and took no steps to satisfy himself as to any potential risk. His description of events was inconsistent, but on the version favourable to his case, it cannot be said that he was unaware of the existence and location of the hand rail. His statement that he was unaware of the presence of the rail has the characteristics of reconstruction. His account and that of Mr Dennis Wood is not persuasive that the accident occurred in the manner claimed. In my view, there was no need for the defendant to have foreseen that a temporary cover to the hand rail would have avoided risk of injury.

24. One can approach the issue of negligence from another perspective. In part, it is raised by the second question considered in March v Stramare (supra). If the Court accepts that there was contact with the "uncapped" section of the rail and that such contact produced a greater response than one associated with contact with a capped section, the test of causation would operate as a negative or exclusionary one leaving as a secondary question the making of value judgments and the consideration of policy. The test of foreseeability involves consideration of whether it is reasonable to expect the defendant to have foreseen the possible consequences of permitting work to continue in the area of the stairwell before the rail was finished. Given the nature of the construction, I would not regard the failure to foresee the actual consequence as unreasonable.

25. In my opinion, the plaintiff has not established a cause of action, based on negligence, against the defendant.

26. The plaintiff does not seek damages against his employer. The defendant, as occupier of the site and the entity responsible for the construction of the vessel, commenced third party proceedings against that employer, and in its statement of claim alleged particulars of negligence which in some respects differed from those alleged by the plaintiff against the defendant. Doubtless the differences are referable to the different relationships existing between the three parties. Counsel for the third party suggested that if no finding of negligence was made against the defendant, the Court should nevertheless determine issues of liability as between the defendant and third party. Whilst recognising the utility of this suggestion, I do not believe that such a course is feasible. If my conclusion as to liability as between the plaintiff and defendant is held to be erroneous, it will be necessary to determine the basis on which negligence ought to have been found against the defendant. That finding could affect any consequential findings in relation to the third party. Any conclusion which this Court might reach in relation to the third party would require re-examination in the light of a different finding in the case between the plaintiff and defendant. I do not believe that the exercise can be productive.

27. It was common ground that the plaintiff suffers from a significant disability. At the time of the action he was aged 48 and had spent most of his working life engaged in physical labour, primarily in construction or manufacturing industries. In June 1993, he was referred to a specialist, Dr Hilton Francis, who found impairment of abduction, flexion and rotation in the right upper arm. An MRI scan showed the presence of a tear to the supraspinitis rotator cuff. On 30 August the plaintiff underwent an operation designed to repair the tear. The successful procedure was followed by infection which caused tissue damage, resulting in permanent and significant disability. Despite continued treatment, the consequence has been pain, limited movement, psychological trauma and incapacity to continue with his occupation. The plaintiff returned to work on restricted duties in 1994, but was unable to continue with employment. He continued to suffer pain and discomfort and the restricted shoulder and arm movement remained. The ongoing disabilities led to a psychiatric assessment in August 1994, and a program involving attention to pain management, depression and physical rehabilitation commenced. The plaintiff developed suicidal thoughts and alcohol abuse became part of a multi-layered problem.

28. In May 1995, the plaintiff attended a four week residential course at a pain management program conducted by Rehabilitation Tasmania. He made some progress following that attendance, but the improvement was a consequence of adaptation and adjustment rather than that of physiological recovery. In the opinion of all medical specialists he will remain unable to resume the form of activity required for employment in either the construction or manufacturing industries or in areas for which his training and skills are suited. The plaintiff presently assists his wife with the conduct of a general store and fuel station on Bruny Island, but is unable to perform other than routine and light duties. The nature of the business is not such that its income will fully recompense him for lost employment or adequately meet the joint financial needs of his wife and himself. His condition is one which has caused significant impairment. However, its impact on future capacity and assessment of any time for which compensation should be awarded is complicated by the presence of another work-related injury for which he has already been compensated.

29. In October 1991, medical opinion was to the effect that he would no longer be able to work in the general area of his employment by reason of a prior injury. The plaintiff had been injured in 1982 when he had stood up whilst working under a tank-stand and struck his left shoulder in circumstances not unlike those which are the subject of this action. The blow disrupted the acromioclavicular joint, which was surgically corrected in November 1989. In the opinion of Dr Francis, who continued to treat the plaintiff after the operation, surgery had not improved the situation sufficiently to enable the patient to ever be able to return to his former employment.

30. As of 1990, the opinion was that the condition was such that degenerative change would preclude any significant activity beyond ten years from the time of assessment. The plaintiff received compensation for that condition, although after settlement of his claim he commenced work with the third party in 1992.

31. The condition of the left shoulder, and the time at which it could be expected to inhibit or preclude work-related activity, are matters relevant to the determination of future economic loss.

32. At the time of the accident, the plaintiff was earning the sum of $424.32 net. The claim for the period of 147 weeks was not contested by the defendant, nor was the resulting calculation of $62,375. That figure would be the sum to be awarded. The claim in accordance with the principles stated in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 was not pursued.

33. The plaintiff claimed that his injuries and disabilities are such that he is unlikely, irrespective of re-training, to obtain employment in the future. He would reach the age of 65 on 9 July 2013. The evidence suggests that he is capable of assisting in the conduct of a family business and can expect some future, albeit limited, return. I suspect that he has exaggerated the extent to which his disability will preclude participation in that business and would have provided for reasonable contingency with respect to the probability that he would receive return from that source. Greater significance attaches to the medical evidence concerning the effect of his injury existent at the time of the relevant date in 1993, for which he has been compensated. In the opinion of his medical advisers in 1991, the effects of that injury were likely to prevent gainful employment beyond ten years. That opinion is supported by evidence given at the trial of this action. The two relevant matters would warrant significant allowance for contingency. Counsel for the defendant was content with an award based on full disability without contingency up until the date at which it could be expected that the plaintiff would be unable to work because of the pre-existing condition. I suspect that either method of calculation would provide equivalent awards, but the suggestion of counsel for the defendant permits a simpler approach. Giving allowance for the difficulties in making prognosis, regard is had to the opinion that the plaintiff was unlikely to be able to work beyond 2001, and erring in his favour, I will calculate the appropriate figure for the period February 1997 (the date of calculation for past economic loss) until 31 December 2002. The period of 5.9 years is subject to a discount of 7 per cent. Accepting (contrary to the figures stated in the particulars of claim) that the plaintiff was earning $424.32 per week, the relevant calculation is:

34. The life expectancy of the plaintiff is twenty-nine years. For the purpose of assessment, I will accept that attendances on medical practitioners will be required solely in relation to the injury which is the subject of this action. Strictly speaking, such is not the case since continued attendances will be required with respect to the combined problems associated with both injuries. However, absent the former, he would still be required to attend for treatment. No contingency will be made for the former condition. The evidence suggests that he will continue to require a monthly attendance on a general practitioner and one to two attendances per year on a specialist. A claim has been made for future psychological or psychiatric treatment. The only attendances to date on a psychiatrist have been made for the purpose of assessment in relation to his claim for damages, and any treatment component has been minimal. No allowance should be afforded this claim. There are travel expenses associated with the expected medical consultation and they will be allowed. Given that he can arrange an appointment with a general practitioner and a specialist on the same day, the cost of twelve ferry visits per year should be allowed. The particulars of claim limited the claim for transportation to a period of five years. Presumably, this was done because of uncertainty as to the length of time it is likely that the plaintiff and his wife will remain residents of Bruny Island. I would have made a deduction for contingency in any event. Future medical expenses and associated travel costs will be allowed on the basis of the following calculations (rounded off):

1 Attendance on medical practitioner: Twelve visits per year @ $31 $7.15 x 663 (29 years) $4,740

2 Attendance on specialist Two visits per years @ $30 $1.15 x 663 (29 years) $762

3 Road transport 120 kilometres @ .40c per km per twelve trips $11.08 x 221 (5 years) $2,448

4 Ferry Transport Twelve trips per year @ $8.80 return $2.03 x 221 (5 years) $448

TOTAL $8,398

35. Not all of the anticipated requirements for medication should be attributed to the injury which is the subject of the present claim. Given my conclusion with respect to the claim for pain and suffering, I am not prepared to conclude that the amount of medication required is as described by the plaintiff. For the purpose of assessment, I will accept the claim in the sum of $24 per week, and discount a proportion of the total figure on the basis that a portion of that medication will be required for the alleviation of the consequences of the pre-existing condition. The amount will be calculated on the following basis:

$24.00 x 663 = $15,912 Less 10% contingency $1,591 TOTAL $13,321

36. A portion of the claim for special damages can more properly be considered in the assessment of general damages. The claim for the cost of repairs to the roof of the family business will be allowed in full. Some allowance is afforded for the claim for gardening and wood gathering, but a figure considerably less than that claimed will be awarded. The contingency reflects the disability ascribed to the pre-existing injury and a more realistic appraisal of the amount of work claimed and the costs which would have been incurred if the work were to be performed by the plaintiff. Damages appropriated to this head of claim are:

Repairs to roof $1800 Gardening $4000 Firewood $4000

TOTAL $9,800

37. The plaintiff did not proceed with a claim for superannuation payments foregone. The evidence adduced by the plaintiff in relation to future superannuation was less than satisfactory. The claim was made on the basis of a percentage calculation of his projected earnings. It was contended that regard could be had to the provisions of the Superannuation Guarantee (Administration) Act 1992 (Cth), s20(3) and (5). The claim was limited to the year 2000 on the basis of a 7 per cent table. I will attempt to apply the approach taken by Zeeman J in Heather v Vita Pacific Ltd A32/1996, when he determined that the calculation should be made without reference to the Common Law (Miscellaneous Actions) Act 1986, and arrived at an assessment by virtue of the Superannuation Guarantee (Administration) Act 1992 (Cth). In doing so, I will adopt a broad-brush approach as taken by the court in Sculthorpe v Safcol (Tas) Pty Ltd B22/1993.

38. The ability of courts to assess damages is not advanced by the manner in which the plaintiff presented his claim. The plaintiff, whilst limiting his calculation to a figure of $22,668 did not provide figures other than those based on a statutory scheme. Yet it would be wrong to ignore the fact that some form of superannuation remains part of the return for labour.

39. Applying as best one can the statutory requirements relating to superannuation and accepting the limitation to the claim proposed by the plaintiff, it is possible in a general way to determine an amount equivalent to lost superannuation. On the plaintiff's calculation, an amount of $22,668 is an appropriate amount. Despite misgivings, I am prepared to allow an estimate of $20,000 with respect to this head of damage.

40. The plaintiff has suffered on-going pain and discomfort. The pain and concomitant inability to live an ordinary and productive life has created depression and low self-esteem. The injury has affected lifestyle, marital relations, ability to concentrate and to perform various forms of physical activity. The history of pain and affects on lifestyle have, I suspect, been exacerbated by the nature of the legal proceedings and I regard his account of physical and psychological effects, as given in evidence, as slightly exaggerated. However, such is understandable and I do not regard it as mendacious. With that slight reservation, I accept that he has suffered prolonged pain, discomfort and psychological harm. Some improvement is to be expected, but in essence, the effects of the injury will remain during his life. I accept that he will continue to be unable to carry out such tasks as house repairs and other physical tasks for which his training and experience is suited. An appropriate award would be the sum of $40,000.

Total Past Economic Loss $62,375 Future Economic Loss $107,522 Superannuation $20,000 Future Medical Expenses $8,398 Future Medication $13,321 Special Damages $9,800 General Damages $40,000

TOTAL $261,416

41. There will be judgment for the defendant. I will hear counsel in relation to the appropriate order concerning the third party proceedings and as to any other consequential orders.