Ellen v Dredge Plant (Mining) Pty Ltd [1994] QSC 341

IN THE SUPREME COURT OF QUEENSLAND No. 326 of 1987 Brisbane [Re: Dredge Plant (Mining) Pty Ltd] Before the Honourable Mr Justice G N Williams BETWEEN: MAURICE JOHN ELLEN Plaintiff AND: DREDGE PLANT (MINING) PTY LTD Defendant JUDGMENT - G N WILLIAMS J Judgment delivered 21/12/1994 CATCHWORDS: NEGLIGENCE - master and servant - experienced man attempting to release jammed chain of forklift - held 10% contributory negligence. DAMAGES - crushed vertebra - 2 laminectomies - 50% disability spine as whole - earning capacity diminished - $65,000 pain, suffering, and loss of amenities - total assessment $525,260. Counsel: L. Stephens for plaintiff M. Forde for defendant Solicitors: Stephen Hockey for plaintiff W.H. Tutt and Quinlan for defendant Hearing date: 24 - 25 November 1994 -- 1 of 23 -- IN THE SUPREME COURT OF QUEENSLAND 19/12/1994 No. 326 of 1987 BETWEEN: MAURICE JOHN ELLEN Plaintiff AND: DREDGE PLANT (MINING) PTY LTD Defendant JUDGMENT - G N WILLIAMS J Judgment delivered 21/12/1994 The plaintiff sustained serious personal injuries in an accident at his workplace which occurred on 16 February 1984. In broad terms he sustained serious back and other injuries when the forks of a forklift, and the pallet on them, fell onto him. The defendant at the trial admitted that, because of the mechanical condition of the forklift, the system of work was unsafe, and therefore it was conceded that a finding of negligence would be made against the defendant/employer. But it was the submission of the defendant that in all the circumstances the plaintiff was guilty of some contributory negligence. In the course of final submissions, counsel for the defendant put the level of contribution at something below 20 percent. In order to determine the extent to which, if at all, the plaintiff was guilty of contributory negligence, it is necessary to make findings as to his knowledge and understanding of the situation confronting him, and the circumstances in which he sustained the injuries. I should record at the outset that the evidence does not establish the simple proposition pleaded in para. 13 of the -- 2 of 23 -- 2 statement of claim. The incident happened in a building which was being converted into offices and a workshop for use by the defendant. It was necessary to mark on the walls the positioning of shelving which was to be later constructed. In order to do that a pallet was placed across the forks of the forklift, and an employee, Neil Allan, stood on that platform and was raised to an appropriate height to make the markings on the wall. In broad terms when the operator of the forklift, Ron Ingledew, attempted to lower the forks the unit malfunctioned and the forks were stuck more than 2 metres above ground level. Ingledew was concerned that if it became necessary for Allan to jump from the platform he may injure himself against nearby machinery, and in consequence he moved the forklift to an open area. The plaintiff, who had some mechanical experience to which I will refer in a moment, was in the workshop at the time. The plaintiff's evidence is that he noticed that the operator was "having difficulty getting the forks to lower and my recollection of it is that I was at one side of the machine and I walked around to the other side of the machine and noticed there was a chain which had unravelled and was protruding from the back of the upright of the machine". He then has a recollection of walking around the front of the unit. He said: "I was quite aware of the fact that it was up in the air and I certainly didn't walk underneath the pallet to get to the other side. I walked clear of the pallet to get around to the other side of the machine where I was - where I was intending to go". -- 3 of 23 -- 3 He then again in his evidence referred to the chain protruding from the back of the upright and went on to say: "I really don't have any real recollection of what took place from there on". Under cross-examination he said he could not recall trying to release the chain by using a piece of wood. However, he did express the view that it was "quite logical that I may have been doing that". Ingledew's evidence is that it was the plaintiff's idea "that if he got a piece of timber he might be able to free the mechanism or the chain that kinked". He saw the plaintiff obtain a piece of timber and then proceed to the right-hand upright as the operator looked at the unit. According to Ingledew, the chain the plaintiff prodded with this piece of timber was above his head. Further, Ingledew suggested that the length of the piece of timber was such that the plaintiff did not have to stand under the pallet in order to reach the point of blockage. His evidence goes on: "He was forcibly trying to straighten the kinked chain over a period of one or two minutes when suddenly the whole mechanism crashed to the floor, catching Mr Ellen on the edge of his left shoulder." It is clear on the whole of the evidence that no steps were taken to prop up the forks so that they would not crash to the ground if releasing the chain removed the only reason for the forks being held in that position. The plaintiff, who was born on 18 May 1945, served in the Royal Australian Navy from 10 February 1968 until 31 December 1978. During that time he passed a number of exams qualifying -- 4 of 23 -- 4 him in the areas of mechanical and marine engineering. At the time of his discharge he was classified as a Chief Engineer. He held the broad equivalent of a Second Engineer's ticket in the civil marine service. I accept his evidence that he was not specifically experienced in dealing with forklifts, but the type of problem he confronted on this day was undoubtedly of similar type to problems he would have experienced with machinery over the years. Certainly it should be recorded that he was not familiar with this particular machine and was not aware of its appalling condition on the day in question. It was obviously with the knowledge and experience of mechanical matters which he had that he made the decision to attempt to free the jammed chain. As he frankly admitted in evidence, he did not walk under the pallet because he realised the danger of possible collapse. It was the contention of the defendant that in working close to the upright in question without taking any steps (such as propping up the forks with timber) he placed himself in a position of danger. It was clearly foreseeable, particularly to a man with the plaintiff's knowledge and experience, that if the forks were suddenly released the pallet may not fall absolutely vertical and that in consequence he was standing in a position of real danger when he attempted to release the chain. Counsel for the plaintiff submitted that in the circumstances the plaintiff's conduct did not amount to contributory negligence; at most it was mere inadvertence, inattention or misjudgment brought about because of the -- 5 of 23 -- 5 situation confronting him. Both counsel referred to Bankstown Foundry Pty Ltd v. Braistina (1986) 160 C.L.R. 301 especially at 310. Here I am satisfied on the evidence that the plaintiff put himself in a position of obvious danger for a period of about two minutes whilst he was attempting to free the blockage. In the circumstances his conduct cannot be explained as being mere inadvertence or inattention. There was some element of misjudgment involved, but given his experience, that was such as to constitute a failure to take proper care for his own safety. Given all of the matters that I have referred to, I am satisfied that the plaintiff was guilty of contributory negligence, and that liability should be apportioned 90 percent against the defendant and 10 percent against the plaintiff. I have already referred briefly to the plaintiff's service in the Navy; it is not necessary to refer to that or to the qualifications he then received in any greater detail. None of that evidence was seriously challenged in the course of the trial. Shortly after his discharge he obtained employment as a field service engineer with a heavy earthmoving equipment operation in Victoria. After working there for about 15 months a family decision was made to move to Queensland. On the Gold Coast, the plaintiff obtained employment as the production manager for a new dredge construction facility within the Newmann Group of companies. He held that position for some two -- 6 of 23 -- 6 years; his work was reasonably heavy. Then, after a period with a dredging operation in Gladstone, he commenced employment with the defendant as a project manager on its dredging operation at Mary Kathleen. The work there was particularly heavy, and he was in charge of an operation involving the rehabilitation of the uranium mine settlement ponds. He was there for about 9 months until he transferred to the defendant's operations on the Gold Coast. It was there that the accident happened. The plaintiff was trapped under the pallet, and it appears that he lost consciousness for a period of time. He can remember being on the floor in excruciating pain before ambulance officers provided some pain relief. On the way to and then at the hospital he refers to "tremendous pain in both my groin area and my back and in my legs". The medical evidence, including the hospital records, indicates that he sustained a crush fracture of the L4 vertebra, a fractured rib on the left side, displacement of his pelvis, abdominal injuries, and severe bruising and abrasions to much of his body. At the hospital a laparotomy was performed, but it revealed no significant damage to any of the internal organs. He was in hospital for about 10 days before being discharged. He was only mobile on crutches for a considerable period of time. He was given extensive physiotherapy in order to regain his mobility. He was unable to return to work until early June 1984. I should at this stage record that his general -- 7 of 23 -- 7 practitioner, Dr Noble, gave evidence that he had regularly treated the plaintiff from about April 1981 to the date of the accident, and during that period there had been no complaint of back pain or the like. By June 1984 the defendant had commenced work involving dredging operations in the Gippsland area of Victoria. The plaintiff was immediately sent there as the contract manager. His duties included the maintenance of all the equipment, the distribution of the dredge material at the spoil point, the construction of areas to contain the pumped material, and other supervisory work. Given the nature of the operation, it was not possible for him to avoid heavy work. In addition there was fairly constant rain which created a lot of mud around the work site. Traversing the muddy area put strain on his back and, with the other fairly heavy work, his pain and discomfort became "worse and worse". He asked the defendant for assistance but none was forthcoming; in consequence he informed the management of the defendant that his back was "giving him too much trouble" and he ceased employment with the defendant in about September 1984. He returned to the Gold Coast and eventually secured a position with Dreamworld Productions as operations controller. That involved a fair amount of walking around the site, but it was not heavy work. He found that he was able to cope adequately with the demands that job placed on him. The only real difficulty that he had at that time was with sleeping; he found it difficult to get comfortable in bed. -- 8 of 23 -- 8 The reason the plaintiff left employment at Dreamworld was in order to obtain a higher salary package. He was offered a job with Milton Bradley as a sales representative. That involved driving long distances. He found that he had to stop more regularly than he normally would have had to prior to the accident because of fatigue in his back. He had to get out of the car and walk around to ease the pain. As a sales representative he was covering the area from the Gold Coast to Cairns. Over the period of about 2½ years that he worked for Milton Bradley he found that he was suffering more and more from his spine. It was during that period that he began to experience pins and needles down his legs, in his feet, and in the buttocks. Tests and investigations were carried out and ultimately in October 1988 a laminectomy was performed at the L4 level. He left his position with Milton Bradley when it was decided that such an operation was necessary. After the operation he was convalescing for about three months and during that period again had fairly intensive physiotherapy. When the pain had subsided he was much more active than he had previously been. At that time a landscaping supply business came onto the market at Nerang, and the plaintiff and his brother decided to acquire it. They worked hard in the business and it built up over a period of time. Because the overall economic climate was not good, it was necessary to work long and hard in order to make the business successful. After a period of time the plaintiff again began experiencing problems with his back and that ultimately -- 9 of 23 -- 9 progressed to the stage where it was necessary to sell the business. He was told by his doctor at about that time that if he persisted with extremely heavy work there would be further detrimental effects on his back. The plaintiff then operated a business of trucking timber which ideal for use in a landscaping business from Oakey to the Gold Coast. That went on for some 4 or 5 months but during that time the heavy work involved aggravated his back. The plaintiff decided to have a short period off work to let his back settle. Thereafter he obtained a truck driving job with Sawtells of Currumbin. Again after a period he started to experience severe pain in his back and in his legs and buttocks. Another CAT scan revealed that a further laminectomy was required. That second laminectomy was carried out on 27 May 1992, and the plaintiff was unable to become fully active again for about 12 months thereafter. Thereafter the plaintiff has been unemployed for periods, but has also had a number of jobs. For the past 5 months he has been working as a cab driver. His current job is causing him problems with his back. The plaintiff currently finds it difficult to obtain any employment using his previously acquired engineering qualifications. He has been away from that particular field of work for so long that re-training would be necessary to upgrade his qualifications. Also the fact that he has had two laminectomies lessens his chances of obtaining employment in the engineering area. It is difficult to obtain a job in that field which will not require at least -- 10 of 23 -- 10 from time to time some heavy work. Dr Stabler, an orthopaedic surgeon, examined the plaintiff in October 1985. At that time the plaintiff was complaining of low back pain, and pain into the right buttock, and right posterior and lateral thigh regions. Clinical examination revealed "a stiff lumbar spine with limitation of straight leg raising". X-rays then revealed a healed crush fracture of the L4 vertebrae. Dr Stabler concluded that the plaintiff had "a right first sacral nerve root compression". From about August 1988 the plaintiff has been treated by Dr Dodd, an orthopaedic surgeon. He first saw Dr Dodd "because of increasingly severe back symptoms that were interfering with his ability to continue working". Examination and investigation by C.T. scan confirmed a diagnosis of post- traumatic spinal canal stenosis. On 5 October 1988 Dr Dodd performed a decompressive laminectomy for stenosis with removal of spinous processes and laminae and wide decompression of the cord at the site of compression. As previously noted the plaintiff thereafter "had excellent relief of symptoms". He was able to resume very heavy work. Dr Dodd noted: "This involved considerable lifting and bending and he continued in this sort of work despite my advice to the contrary." According to Dr Dodd, in April 1990 the plaintiff had a recurrence of symptoms in his lower back and legs. A repeat C.T. scan indicated some further narrowing of the spinal canal both due to bony impingement and soft tissue impingement. Dr Dodd advised that the plaintiff only do lighter work. The -- 11 of 23 -- 11 doctor prescribed a lumbar corset in April 1990 which helped the plaintiff greatly. The plaintiff had continuing problems which resulted in further examinations by Dr Dodd in October and December 1991. By the latter date his pain was not too bad though he was driving trucks. By 20 January 1991 there was still some pain in the left buttock but overall the plaintiff was doing reasonably well. When consulted on 30 September 1991 Dr Dodd recorded a complaint of severe bilateral leg pain. Clinically there were significant signs of nerve compression of the right leg with quadriceps wasting and an absent ankle jerk. The doctor considered further surgery was likely but not then urgent. He forecast that further disc degeneration would lead to early retirement. In the doctor's then opinion the plaintiff had a permanent disability of the order of 50 percent of his spine taken as a whole. In his report of 12 February 1992 Dr Dodd expressed his then opinion as follows: "Maurice Ellen suffers from post-traumatic spinal canal stenosis which can be attributed directly to the industrial accident that occurred on 16 February 1984. In 1988 he had a decompressive laminectomy which partially relieved his symptoms and in fact gave him total pain relief for a period of 18 months. His pain has recurred and despite a recurrence of stenosis on C.T. scan he is able to engage in fairly heavy occupation despite being discouraged from doing so. The answer in fact to his continuing symptoms would be to give up heavy work and to persist with a lighter form of occupation particularly avoiding heavy lifting, bending and prolonged sitting. Further operation may not in fact be necessary if he is prepared to change his life and work style. He has informed me that he needs to work for financial reasons and I appreciate this point of view. -- 12 of 23 -- 12 The decision to consider further surgery will depend on his progress in the future. Further surgery is certainly not regarded as an absolute necessity but may become necessary for continuing symptoms." On 17 February and 24 February 1992 the plaintiff consulted Dr Dodd because of the onset of more severe symptoms; the doctor recorded severe pain radiating into the buttocks. By that time it was clear that the plaintiff would no longer be able to continue working as a truck driver. The stage was soon reached where Dr Dodd could postpone further surgery no longer. On 27 May 1992 the second laminectomy was performed. During the operation the doctor made findings of severe spinal canal stenosis below the level of the previous laminectomy. The operation on this occasion involved removal of the spinous process of L4 and adjacent laminae as well as wide decompression of the cord bilaterally. The doctor noted that post-operatively the plaintiff did fairly well. In his report of 16 June 1992 to the Workers' Compensation Board, Dr Dodd observed: "As regards rehabilitation I think this would be excellent for this particular patient. He is an extremely well motivated person but needs to be in an occupation where he can avoid bending, lifting and prolonged sitting. In his previous occupation as a landscape gardener and truck driver there is no doubt further damage has been done to his lumbar spine." In his oral evidence Dr Dodd indicated that his assessment of 50 percent disability of the whole spine took into account progressive degeneration. He said that the second laminectomy relieved some of the plaintiff's symptoms but he still had "significant back problems", and in the doctor's opinion the assessment of 50 percent permanent disability of the spine -- 13 of 23 -- 13 taken as a whole remained. In his view that would approximate to a permanent disability of 15 to 20 percent of the total body. The doctor expressed his assessment of the plaintiff's future as follows: "His condition is likely to deteriorate. The rate of deterioration is unpredictable depending on how he looks after his back and how he is managed. It is unlikely that he will come to future surgery unless instability of his spine becomes a problem. At the moment he does have some early symptoms suggestive of instability and he has been fitted with a lumbar brace but at his age one would like to think we would avoid further surgery by changing in his lifestyle and in his occupation." In the doctor's opinion there was a 25 percent chance of his having surgery in the future, and if that was required a cost totalling $9,500 would be incurred. I accept all the evidence of Dr Dodd, particularly those parts of his evidence to which I have specifically referred in this judgment. I specifically accept his evidence that all the plaintiff's problems with his back since February 1984 are directly attributable to the crush fracture he sustained on that date. Insofar as Dr Morris suggests that there may have been some other explanation I reject his evidence. It is significant that Dr Morris' assessment of an overall disability of about 15 percent of the whole body accords with the assessment made by Dr Dodd. Reference should also be made to Dr Morris' opinion that the plaintiff can only perform "moderate type of activities but not heavy lifting or bending". At the time of the accident the plaintiff's family had not -- 14 of 23 -- 14 fully established themselves on the Gold Coast. He had borrowed in order to secure a family home, and had on that date, daughters aged about 8 years and 4 years. The plaintiff needed to work hard to earn the income necessary to provide for the support of his wife and family. He was somewhat old fashioned in that he considered himself to be the breadwinner, and regarded any inability to do that as demonstrating failure on his part. He was quite prepared to work hard after the accident, and it is true that to some extent he ignored medical advice in taking on heavy work. This case presents the converse of the more usual situation seen by the Courts in personal litigation. Here the defendant submitted that the plaintiff's damages should be reduced because he worked so hard after the initial injury that he did further damage to his back. Having regard to the whole of the evidence, I am satisfied that the plaintiff acted reasonably in following the occupations which he did at the times he did. If he was not experiencing pain, and if he found that physically he could do the work, he was prepared to accept the employment in order to obtain the higher remuneration. He was not the sort of man who could have worked year in year out in the job he held for a period at Dreamworld. After the first laminectomy he was largely pain free, and in consequence he reasonably believed that he was capable of doing more than his back would withstand. In all of the circumstances I am not satisfied that the defendant has established any basis for reducing the damages to which the -- 15 of 23 -- 15 plaintiff would otherwise be entitled. All that has happened is directly attributable to the injury to the back sustained in February 1984. The litigation was prolonged, no doubt because of uncertainties as to the prognosis. Each time it became obvious that a laminectomy was likely the litigation was put on hold until such time as one could make a prediction with greater certainty as to the plaintiff's future employability. But those delays affected him emotionally. He became concerned that he was not able to be a proper provider for his family, he worried about the future, and he was concerned about the affect on his marriage of his diminishing sexual capacity. For periods of time, some lengthy, particularly after each laminectomy, he was unemployed. The family had to borrow, mainly from the wife's relatives, in order to survive. Over the past few years it could be said that the family were in dire financial straits. All that affected the plaintiff psychologically, and it was not surprising that a clinical psychologist was called to give evidence on his behalf, and a psychiatrist was called by the defence. Both concluded that the plaintiff had psychological problems, though they differed as to the precise nature thereof. In the end result probably not much turns on the differences between their evidence, but I accept and act upon the evidence of Coyle, the psychologist called by the plaintiff, in preference to the evidence of Dr Alcorn, the psychiatrist called for the defence. Interestingly both -- 16 of 23 -- 16 recorded in their reports the assessment that the plaintiff was a "stoic individual". Dr Alcorn was satisfied that there was no element of malingering. Coyle noted that the plaintiff did not readily display his emotions. The evidence of Coyle which I accept is that the plaintiff is moderately to severely depressed as a result of the physical injuries he has sustained, and their economic and social consequences. Dr Alcorn confirms there is ongoing evidence of depressed mood, but his opinion is that the plaintiff is suffering from a post- traumatic stress disorder and dysthymia. Both consider that the plaintiff is in need of treatment, including counselling. Coyle put the cost of that treatment over a period of time as being approximately $15,000, whereas Dr Alcorn thought treatment costing about $2,500 would be adequate. This an area where it is difficult to be precise. Undoubtedly the resolution of the litigation will ameliorate the plaintiff's condition, but without treatment it will not be totally resolved. Given the fact that the condition has now been untreated for a considerable period, successful treatment might take longer than Dr Alcorn suggests. Coyle also points out, validly in my view, that the psychological problems which the plaintiff now has will further diminish his employment prospects. He cannot work in the area for which he is trained, he cannot do heavy lifting work, and his capacity to adjust to a form of employment within his physical capabilities will be adversely affected by his psychological condition. -- 17 of 23 -- 17 Taking everything into account the plaintiff has experienced considerable pain and loss of amenities, and that will continue for the rest of his life. The reality is that his physical capacity will continue to diminish as he gets older. His back condition has deprived him of the relaxation which comes from enjoying sport and other recreations and that will be of considerable importance as he gets older. Taking everything into account I assess damages for pain and suffering, and loss of amenities in the sum of $65,000. In calculating interest with respect to past pain and suffering, and loss of amenities, I take into account the amount in excess of $14,000 paid to the plaintiff as a lump sum by the Workers' Compensation Board. I allow interest on $25,000 from the date of the accident at the rate of 2 percent; I allow $5,375 under this head. I must also allow something for the cost of further medical treatment in the future. As indicated the plaintiff will need psychiatric counselling costing somewhere between $2,500 and $15,000, depending on the competing estimates. There is also the 25 percent chance that he will require further surgery to his back costing in excess of $9,000. The former treatment will be required in the immediate future, whilst the latter may be postponed for quite a considerable period of time. In all of the circumstances I allow $7,500 for the cost of future treatment. The only special damages incurred were those paid for the Workers' Compensation Board, and I allow the total of -- 18 of 23 -- 18 $17,563.79. In addition to that, the sum of $3,253.05 should be allowed for the Fox v. Wood factor. That leaves for determination past and future economic loss. The plaintiff called an accountant, S.J. O'Keefe, to give evidence relating to all aspects of his economic loss. Included in ex. 22 are various schedules which have been compiled by that witness. Each of those calculations has been made on the basis of very clearly stated assumptions, and it is convenient to refer to them on this aspect of the determination of quantum. When the plaintiff was employed by the defendant at Mary Kathleen he was on a base salary of $30,000 per annum. When he returned to the Gold Coast he negotiated new terms and conditions which included a base salary of $22,300 per annum plus commissions; there was an incentive scheme which provided the plaintiff with a percentage of all sales and also a percentage of profit on any contracts he brought in. I am prepared to infer that the plaintiff confidently expected that his new salary package would return him not less than he was getting at Mary Kathleen; if that was not the case, he would have either renegotiated the terms of his employment or found more remunerative employment. Given his experience and engineering qualifications the reality is that in 1984 he had an earning capacity of more than $30,000 per annum. In his calculations O'Keefe used a base salary of $34,889 as at January 1984 and in the circumstances that is realistic. For a number of reasons it is not possible to make an -- 19 of 23 -- 19 arithmetical calculation of past economic loss, and, in those circumstances, the use of the figure of $34,889 as the base is an appropriate starting point. On one scenario O'Keefe calculates past economic loss on the basis that the plaintiff remained in employment with the defendant until the date of trial. Again that cannot be used as a precise measure of past economic loss because the defendant went into voluntary liquidation on 30 August 1991; whatever else may have happened the plaintiff could not have remained employed in his old job after that date. On the balance of probability the plaintiff would have remained in employment with the defendant, but for the accident, for at least some years after 1984, but the reality is that he probably would not have stayed with the defendant until August 1991. Given his qualifications and experience the probability is that he would only have left the defendant's employ in order to accept more remunerative employment. As there is no doubting the fact that he was a hard worker there is no likelihood that, but for the accident, he would have either been unemployed or working for less than his equivalent wage with the defendant at the time of the accident throughout the period 1984-1994. I have already referred to the various jobs the plaintiff has held during that period. He was able to produce most taxation returns and other documents supporting his earnings throughout that period. Everything has been calculated by O'Keefe, and I accept and adopt his calculations. -- 20 of 23 -- 20 O'Keefe calculated past economic loss (disregarding use of a motor vehicle) in the sum of $221,966. That figure cannot be accepted as being mathematically accurate. It is, as noted above, based on an initial wage of $34,889 per annum and also assumes he could have worked with the defendant up until the date of trial. It does not take into account the probability, as I have found, that the plaintiff would have left the defendant's employ at some stage in order to obtain greater remuneration. In those circumstances the determination of past economic loss becomes one of assessment based on the evidence. In all the circumstances I allow $200,000 under this head. In calculating interest on pre-trial economic loss I bring into account the sum in excess of $25,000, being the weekly sum paid by way of compensation by the Workers' Compensation Board. As is obvious from the evidence and O'Keefe's calculations the economic loss was not evenly spread over the years 1984-1994. In some years, particularly after the laminectomies, there were lengthy periods when the plaintiff was unable to work at all. In consequence it is necessary to make some discounting in calculating the interest to take account of such factors. I allow interest on past economic loss in the sum of $34,800. From all the foregoing it is obvious that the plaintiff has a present income earning capacity; he frankly conceded so much in his evidence. The difficulty is in putting a measure on it. He has not been earning a lot as a taxi driver in recent months, and the probability is that he will not be able to keep up that occupation for very long. The plaintiff's case -- 21 of 23 -- 21 was presented on the basis that his present income earning capacity was that of a shop assistant, and the plaintiff's calculations of future economic loss were based on that assumption. In my view that is a realistic approach and I am prepared to adopt it and act upon it. O'Keefe's calculations for the future are based on such a proposition. In my view, one can gauge the extent of the plaintiff's future economic loss by having regard to the difference between the salary of a shop assistant on the one hand, and the earnings of a chief operator (dredge fully operational) or dredge operator on the other; it is also of some assistance to note the loss on the assumption that the plaintiff had retained his old position with the defendant. The calculations by O'Keefe, which I accept, give a range of from $175,000 to $250,000 for economic loss for the future calculated on those assumptions. Further, there would be a loss of superannuation benefits calculated in accordance with O'Keefe's schedule. Given the plaintiff's energy and motivation immediately prior to the accident I am of the view that the higher figures should be adopted, and that it is a sufficient discounting to drop the future superannuation benefits lost out of the calculation. I will therefore allow $250,000 for future economic loss. My award can therefore be summarised as follows:- (i) pain and suffering and loss of ameni (ii) interest on pain and suffering $65,000.00 -- 22 of 23 -- 22 and loss of amenities (iii)cost of future treatment (iv) special damages (v) Fox v. Wood factor (vi) past economic loss (vii)interest on past economic loss (viii) future economic loss $5,375.00 $7,500.00 $17,563.79 $3,253.05 $200,000.00 $34,800.00 $250,000.00 TOTAL $583,491.84 That must then be reduced by 10% for contributory negligence, leaving a figure of $525,142.65. From that has to be deducted the sum of $58,231.65 being the amount refundable to the Workers' Compensation Board; that leaves a net figure of $466,911.00. There will therefore be judgment for the plaintiff against the defendant for $466,911.00. -- 23 of 23 --