JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CIVIL 

LOCATION	:	PERTH 

CITATION	:	TOMICH -v- AQUA TECHNICS (WA) PTY LTD [2002] WADC 9 

CORAM	:	LA JACKSON DCJ 

HEARD	:	3 - 6 DECEMBER 2001 

DELIVERED	:	22 JANUARY 2002 

FILE NO/S	:	CIV 3165 of 1999 

BETWEEN	:	STEVEN TOMICH
Plaintiff
 
AND
 
AQUA TECHNICS (WA) PTY LTD
Defendant 

Catchwords:
Negligence - Employers' liability 
Legislation:
Workers' Compensation and Rehabilitation Amendment Act 1993 
Result:
Claim dismissed 

Representation:
Counsel:
Plaintiff	:	Mr T H Offer
Defendant	:	Mr M A McAuliffe 
Solicitors:
Plaintiff	:	Edwards
Defendant	:	McAuliffe Williams & Partners 

Case(s) referred to in judgment(s):

Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121

Case(s) also cited:

Nil 

1	LA JACKSON DCJ:  The plaintiff's claim is for damages for personal injury arising out of the alleged negligence of the defendant, his employer.  
Background
2		The plaintiff had had a somewhat chequered employment history and for about 12 months before August/September 1996 he had been unemployed.  
3		In August 1996 he was employed by the defendant.  The defendant is a manufacturer of swimming pools and has display centres one of which is at O'Connor.  There are nine swimming pools set in garden settings and a sales office.  
4		The plaintiff was employed as a gardener, doing general maintenance and pool cleaning at the O'Connor premises.  He was employed on a subsidised employment scheme through Centrelink.  Although I have none of the details of that employment, it seems Centrelink subsidised the wages paid to the plaintiff for a period of three months.  The plaintiff was described as being a permanent/part‑time employment but that description is probably misleading because work with the defendant, as one might expect, is seasonal and the plaintiff would probably not have been employed during the following winter.  
5		There was a garden shed at the defendant's O'Connor premises.  That shed contained pool chemicals and various gardening tools.  
The relevant work
6		Towards the end of August 1996 a 10 ton truckload of mulch was delivered to the defendant's premises at O'Connor.  It was tipped in a heap in the carpark.  The mulch was to be spread over the garden beds in the defendant's premises.  The plaintiff was instructed to spread the mulch over the gardens.  He says he was given a wheelbarrow and a long handled shovel with a square blade for that task.  The defendant denied having directed the plaintiff to use that equipment.  Richard Henry Van Beem, the defendant's sales manager, said he told the plaintiff to spread the mulch.  Van Beem said, and I accept, that there was plenty of equipment inside the shed to be used for that purpose.  That equipment included a wheelbarrow, a shovel, as spade, a garden fork and a rake.  There was no specific instruction given to the plaintiff how to do the work and nor was there any need to have done so.  The task of spreading the mulch was pretty self‑evident.  
7		The wheelbarrow had a tyre which was not fully inflated.  The plaintiff says the tyre was totally deflated and the wheelbarrow was running on its rims.  Van Beem said the tyre was not fully deflated but was certainly under inflated.  I accept Van Beem's evidence.  It was supported by Ronald James Lothian who was a sales consultant employed by the defendant at O'Connor.  Lothian described the wheelbarrow as having a bit of a flat tyre.  
8		The plaintiff said he complained to Van Beem and Lothian about the state of the tyre and was told by Van Beem that he would attend to fixing it.  The plaintiff said he complained a number of times but nothing was done.  He said in the circumstances he was forced to use the wheelbarrow with the deflated tyre and that that made the task of moving the mulch extremely heavy.  He says the ground was uneven and hilly.  
9		Van Beem denies any complaint was made by the plaintiff about the state of the tyre.  Quite to the contrary, he said that when he observed the tyre was flat he told the plaintiff to get it pumped up.  Lothian said the plaintiff did complain to him about the tyre and he told the plaintiff to get it pumped up.  There is a service station about 200m from the defendant's premises.  The plaintiff could easily have wheeled the wheelbarrow to the service station and attempted to pump the tyre up.  He did not do this.  Van Beem says when he told the plaintiff to have the tyre pumped up, the plaintiff said, words to the effect, "She'll be right" and continued to work.  Van Beem says he noticed that the tyre left marks on limestone paving in the area.  He was concerned about the marks and directed the plaintiff on several occasions to have the tyre pumped up.  
10		Van Beem was cross‑examined with some vigour on this aspect.  It was suggested to him that the plaintiff in the position of a new employee would hardly be likely to have wilfully disobeyed a direct instruction of the sales manager.  I do not consider the issue deserves that weight.  It was hardly the most important thing that was happening to a person whose function was to sell swimming pools.  If the workman moving the mulch was content to do it with inadequate tools and disobeyed the instruction to fix the tyre, it was hardly a matter about which the employer should be concerned.  The implication by the statement "She'll be right" is that the plaintiff could do the work quite adequately notwithstanding the deflated state of the tyre.  
11		The plaintiff also complains about the shovel he was given to use.  Van Beem denies he was given that shovel.  He says the shed contained a number of tools including a garden fork which the plaintiff could have used.  He says he has a recollection of briefly seeing the plaintiff shovelling the mulch into the wheelbarrow.  The pile of mulch could not be seen from Van Beem's office.  He said when he observed the plaintiff shovelling the mulch he did not think anything of it.  He said at his own home he uses a shovel for the purpose of shovelling mulch to spread over gardens.  Van Beem said the shovel in the shed was pointed not square.  Neither the plaintiff nor the defendant sought to produce the shovel.  I would have thought it would have been a very easy matter for the defendant to produce a pointed shovel.  It produced the garden fork.  Notwithstanding the failure to produce the shovel, I accept Van Beem's evidence in preference to that of the plaintiff.  
12		The plaintiff says he complained to Van Beem about the shovel and Van Beem said he would get him a pitchfork.  Van Beem denies that request was made.  I accept the denial.  The request for a pitchfork was not logical as there was one, in the form of a garden fork, in the shed.   
13		After two or three weeks of moving and spreading the mulch, it seems another smaller load was delivered.  At about the same time the wheelbarrow was taken to a tyre repairer and a new tube fitted.  It was argued on behalf of the plaintiff that even if the plaintiff had attempted to inflate the tyre the fact that a new tube was fitted is an indication that an attempt to inflate the tyre would have failed.  I do not draw that implication.  The tube might have been fitted for a number of reasons.  It may be that there had previously been a tube that was old but still effective.  It may be that the tyre was tubeless and the tyre shop recommended a tube be installed.  No one from the tyre shop gave evidence as to the reason why the tube was put in.  Indeed it would be most unlikely that whoever installed the tube would now have any idea why it was done.  The plaintiff did not even attempt to inflate the tyre.  
14		After the tyre was repaired and inflated the plaintiff continued to shovel and spread the mulch.  Clearly the work of wheeling the wheelbarrow would have been considerably easier with an inflated tyre.  The plaintiff did that work for one or two days up to the night of Friday 13 September 1996.  There is some conjecture as to whether it was one or two days but in the end it is unimportant.  
15		The plaintiff said that during the two or three weeks he was using the wheelbarrow he felt no soreness in his back.  He said that at the end of each day he was exhausted because of the hard work he was having to perform but there were no back or neck symptoms.  He says that on the night of Friday 13 September he had a disturbed night due to neck and lower back discomfort and when he awoke on Saturday morning both his neck and his back were stiff and extremely painful and have continued since that day to have the same degree of stiffness and soreness he felt that morning.  A CT scan in 1998 revealed disc annular tears at L4/5 and L5/S1.  There was degenerative disc disease with some loss of disc intensity at both levels.  
16		The plaintiff claims the damage to the disc was done during the course of the two to three weeks he was using the wheelbarrow with the deflated tyre and the square nosed shovel.  He says both of these actions placed undue strain upon his back causing the tear to the discs resulting in the symptoms of which he now complains.  Mr Desmond Williams, an orthopaedic surgeon, and Dr John Ker, an occupational physician, both gave evidence that the onset of the symptoms a day or two after the heavy work was consistent with it having been caused by the heavy work.  Mr Nick Batalin, an orthopaedic surgeon, and Dr Alan Home, an occupational physician, disagreed with the opinions of Mr Williams and Dr Ker.  They both said that the onset of symptoms following an annular tear to a disc would either be immediate or at most would emerge the morning after the damage was done.  Dr Home in particular said it would be impossible for there to be no symptoms whilst the work was continued after the tear had occurred.  He said in his experience (and he described doing some 500 back cases a year) the symptoms occur after the workman has cooled down and accordingly the emergence of the symptoms the day after the injury would be more logical.  Dr Home's opinion was that if the symptoms appeared on Friday night and Saturday morning then the damage was done on the Friday and not earlier.  On Friday the plaintiff was using a wheelbarrow with a fully inflated tyre and was using, on his evidence, a pitchfork which made the job of shovelling the mulch into the wheelbarrow much easier.  
17		In addition to the inadequacy of the tools provided, the plaintiff claims he was put under additional strain by having no breaks whilst he was working.  He said he had neither a morning break nor a lunch break whilst he was doing the work of moving the mulch.  He said this was an express instruction by Van Beem.  He said Van Beem told him the mulch had to be moved as a matter of urgency because there were complaints by other tenants in the complex.  Van Beem denied there were any such complaints.  He said there were about 150 car parking bays and 20 allocated to the defendant.  He said the pile of mulch used up only two of the bays.  Van Beem said there was no urgency as the mulch only needed to be spread before summer.  
18		Van Beem said the plaintiff was given no express instructions with respect to taking breaks.  He said when the plaintiff started work with the defendant he was shown the lunch room and facilities and it was up to him to decide when he needed a break from work.  
19		I prefer the evidence of Van Beem to that of the plaintiff with respect to the subject of the plaintiff taking breaks.  The plaintiff said when he was sent to the defendant by Centrelink it was to work 20 hours per work.  In fact he said he worked 24.5 hours per week.  This evidence is somewhat in conflict to his evidence of rather longer hours worked whilst the mulch was being moved.  
Liability
20		This is a civil case for damages.  A plaintiff must, on the balance of probabilities, prove the negligence of the employer and that the negligence has caused the injuries.  The plaintiff has failed to satisfy me on both of these counts.  
21		A useful summary of the principles of employer's liability can be found in the judgment of Kirby J in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 159 to 161.  His Honour said:  
"First, it is the duty of an employer at common law to take reasonable care to avoid exposing an employee to unnecessary risk of injury.  That duty includes the provision of a safe system of work; a safe place of work; and proper plant, equipment and appliances.  
Second …  An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm.  But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detected risks of failure or deterioration.  Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action claimed in negligence.
Thirdly, the duty remains that of reasonable care.  It is not one of strict liability.  Workers' compensation legislation affords basic protection upon proof of the happening of an injury to an employee in defined circumstances.  To recover damages, the added element of negligence or breach of statutory duty sounding in damages must be shown.  This requirement imports considerations of reasonable care which must be demonstrated to be wanting if a more substantial recompense, in the form of damages, is to be recovered at common law.  
Fourthly, the burden of establishing a claim in negligence rests on the plaintiff throughout the proceedings."  
22		I am not satisfied that there was negligence by the defendant as the plaintiff's employer in the system of work which the plaintiff was required to perform.  The task was a simple one.  As Dr Ker acknowledged (T 220):  
"Q.  Given a young man who appears to be fit, engages in the sport of kung fu, would you normally expect that to be a person who would encounter difficulties with the type of duties that have been mentioned in moving mulch?  
A.  Absolutely not."  
23		The tools provided (with the exception of the wheelbarrow tyre) were adequate for the performance of the work.  It was for the plaintiff to use the appropriate tools.  He said with the square nosed shovel it was hard to penetrate the pile of mulch for the purpose of loading up the wheelbarrow.  If the shovel was used by sliding it along the carpark surface so as to go under the pile of mulch then I would not have thought there was any difficulty.  It is said that part of the mulch was not on the carpark surface and therefore the plaintiff needed to penetrate the side of the pile.  I accept that to use a square nosed shovel would be difficult and it would be hard to penetrate the pile of mulch.  But that difficulty would be obvious the first time you did it.  There were other tools in the shed.  There was the garden fork which could have used to shovel the mulch into the wheelbarrow.  Both occupational physicians suggest that a pitchfork with a lot of tines would be better than one with four such as is common with a garden fork because of the nature of the mulch.  That is probably so, but the use of a garden fork posed no risk to the plaintiff.  There was a rake.  The plaintiff could have loaded the mulch from the carpark sliding the shovel under the mulch along the bitumen surface.  He could have used the rake to rake the pile on to the bitumen surface so as to facilitate that shovelling.  All of the systems are blindingly obvious.  There is a duty on the employer to provide a safe system of work.  That duty is satisfied by taking reasonable care.  An employer is entitled to assume an employee will exercise some commonsense when working.  In my opinion there was no breach of duty of the employer with respect to the available tools to move the mulch.  
24		The deflated tyre would obviously have placed strain upon the plaintiff's back.  The plaintiff was told to have the tyre pumped up.  When he was told to do that he responded "She'll be right".  What is an employer supposed to do in the face of such a reply.  The plaintiff was an apparently fit, healthy young man.  If he was able to carry out the task adequately using a wheelbarrow with a deflated tyre why should the employer think it was placing an undue strain upon him.  In my opinion the defendant has not breached its duty to the plaintiff in failing to ensure the tyre was inflated.  The plaintiff claims he was totally exhausted by the work he was performing.  Family members gave evidence supporting that view.  If that was the case then the need to inflate the tyre would have been obvious to the plaintiff.  If the shovel being used was inappropriate for the task, that would also have been obvious.  There were alternative tools in the shed.  It is inconceivable that if the shovelling was as strenuous as claimed by the plaintiff he would not have looked in the shed for some alternative tool.  The defendant would not necessarily know the plaintiff was unreasonably exhausted by his labours during the day.  This is not a task which the defendant closely supervised, nor was it a task over which supervision was reasonably required.  
25		If the plaintiff was injured as a result of the deflated tyre on the wheelbarrow then he is the author of his own misfortune.  The fact that the tyre remained deflated was entirely due to the failure of the plaintiff to follow the instructions of Van Beem and Lothian to have it pumped up.  I cannot accept that an employee is entitled to blame an employer for an event that has occurred as a direct result of the failure of the employee to follow the employer's instructions when to follow those instructions would have removed the risk of injury.  This is not an employee of any particular vulnerability.  This is a young man whose education was to Year 12 at school.  He had been an apprentice for a time.  He was apparently physically fit and energetic.  He is not a person to whom the defendant needed to take any greater care than commonsense dictated to perform an ordinary task which might be done in anyone's home.  
The plaintiff's credibility
26		In this case the credibility of the plaintiff is a central issue.  It is the plaintiff's evidence of what happened at work upon which his case substantially relies.  It is the plaintiff's evidence of the symptoms and the effect on him that is crucial to the assessment of any loss or damage suffered.  
27		A number of witnesses called by the defendant gave evidence different to that of the plaintiff.  Van Beem, the defendant's sales manager at the time, and Lothian, a sales consultant, gave evidence of instructions to the plaintiff to have the tyre of the wheelbarrow inflated.  The plaintiff denies any such instructions were given.  The plaintiff says he complained about the tyre to both Van Beem and Lothian.  Van Beem denies any such complaint was made.  Lothian agrees such a complaint was made but said his response was to tell the plaintiff to have the tyre pumped up.  
28		The plaintiff said Van Beem offered to get him a pitchfork.  That evidence, in the face of the fact (which I accept) that the garden fork had always been in the shed, is simply not credible.  Van Beem was not asked by either counsel about such a conversation.  
29		The plaintiff said Van Beem told him the job of moving mulch was urgent because of complaints of the mulch in the carpark.  Van Beem denied there was any urgency.  He said there was plenty of room in the carpark and the mulching was only required to be done before summer.  
30		The plaintiff claimed Van Beem told him he would get him a better job as a pool cleaner of installed pools.  Van Beem denies any such conversation.  
31		After the plaintiff ceased work he was referred to Western Rehabilitation for rehabilitation services.  There is a substantial conflict in the evidence of the plaintiff on the one hand and Louise Anne Balston, a rehabilitation provider.  The plaintiff was in Balston's care for most of 1997.  Balston said the plaintiff was uncooperative in rehabilitation attempts.  That was denied by the plaintiff.  It is interesting to note that Balston was assigned the plaintiff because he complained about another rehabilitation provider.  When Balston produced an adverse report, the plaintiff again complained and was reassigned again.   
32		The plaintiff denied having told Dr Home (Exhibit 19) that he did not have any plans to seek work or undertake any training, or that he said his only plan in life was to "expose insurers and what they have done to him".  I accept Dr Home's evidence that he recorded the plaintiff making such comments at a consultation on 30 October 1998.  
33		Both Mr Batalin and Dr Home described the substantial differences between the plaintiff's abilities upon formal testing and their observations of his physical abilities on other occasions.  
34		The plaintiff claimed significant symptoms in his neck, which had been consistent since 12/13 September 1996.  Mr Williams, who was otherwise supportive of the plaintiff, said there were no clinical signs to support such complaints (T 137) and Dr Ker (T 218) reported the plaintiff saying his neck was sometimes sore.  
35		I have no doubt that the plaintiff was feigning symptoms greater than those from which he suffered whilst being examined by doctors to whom he was referred by the defendant.  I have no doubt that he failed to adequately attempt rehabilitation.  I have no doubt that he was directed to inflate the tyre of the wheelbarrow but failed to do so.  
36		In all of the circumstances I do not accept the plaintiff is a truthful witness.  
The legislation
37		The events the subject of this claim having occurred in 1996 are subject to the Workers' Compensation and Rehabilitation Act 1981 as amended by act No 48 of 1993.  The relevant parts of the amending Act include s 93D(1)and s 93D(2) which provide:  
"(1)	Damages can only be awarded if the disability results in the death of the worker or is a serious disability.  
(2)	A disability is a serious disability if, and only if – 
(a)	the degree of disability would, if assessed as prescribed in subsection (3), be 30 per cent or more; or 
(b)	the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."  
38		There is no evidence that there has been an assessment of the degree of disability as prescribed by the Act.  In Exhibit 7 Dr Williams described the plaintiff's disability at 10 – 15 per cent of the whole of the spine.  In Exhibit 10 Dr Ker said less than 10 per cent of the cervical spine and 12 per cent of the lumbar spine.  These assessments are as high as the plaintiff was able to achieve, 30 per cent total disability seems remote.  Section 93A defines "future pecuniary loss" as meaning "pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court".  Pecuniary loss is financial loss such as loss of earning capacity or future expenses likely to be incurred.  
39		The prescribed amount is $126,000.00.
40		Crucial to assessment is the pre‑existing state of the plaintiff's lumbar spine.  The plaintiff has significant changes to his lumbar spine.  These are not caused by any activity carried out in his employment with the defendant but rather a natural and rather premature degeneration.  Even if, contrary to my finding, the work carried out by the plaintiff in August and September 1996 caused a tear to the L4/5 and L5/S1 discs resulting in pain, it does not follow that any future lumbar spine problems were also so occasioned.  On 15 November 2001 a CT scan was performed showing disc protrusion at L4/5 and L5/S1.  Again there is a conflict of opinion between Mr Williams on the one hand and Dr Home and Mr Batalin on the other as to whether those disc protrusions were caused by the work strain or a part of the course of the degenerative spine.  I prefer the evidence of Mr Batalin and Dr Home in this regard.  It seems to me that some years after the original injury, it must be speculative to link such subsequent changes.  
41		Even Mr Williams agrees that a degenerative spine is likely to become symptomatic at some time in the future.  Exactly when that would have been is indeed a matter of speculation but the disc protrusions which, according to the plaintiff, first became symptomatic about 12 months ago, that is, about the end of the year 2000 would give a pretty good guide.  
42		The plaintiff complains of severe pains to his cervical spine.  There is little pathology which would account for such pain.  There is nothing which would link such pain to any work being carried out by the plaintiff.  
43		If I was to find the plaintiff had suffered an injury as a result of the work, it would be only a lumbar spine injury.  I consider that to be of moderate severity.  I do not accept the plaintiff's exaggerated assertions that it is extremely painful.  I find that in the ordinary course of the degeneration of the plaintiff's spine he would have and indeed has suffered further injury.  In my opinion his symptoms attributable to any work activity would have ceased by the end of 2000, that is after some three and a half years. 
44		I note the plaintiff was assessed as being fit for part‑time clerical work (subject to some limitation) in 1998.  He was, of course, a part‑time employee of the defendant. 
Future medical expenses
45		I would not make any allowance for future medical expenses.  The plaintiff has failed to prove any ongoing disability was occasioned by any event occurring at work.  
Other future expenses
46		I do not consider there is any other future pecuniary loss, such as services or travel, attributable to the plaintiff's work with the defendant.  
47		Even if there was some slight effect remaining the total of any future pecuniary loss could not approach the prescribed amount of $126,000.00.
48		Section 93D provides that damages cannot be awarded unless, relevantly, the plaintiff has suffered a future pecuniary loss of at least $126,000.  The plaintiff has not suffered any such loss.  Accordingly no damages can be awarded in this case and the plaintiff's case must be dismissed.
49		Notwithstanding that the plaintiff's claim is dismissed, it is appropriate I make an assessment of other damages.
General damages
50		Section 93E(1) and s 93E(2) of the Worker's Compensation and Rehabilitation Act at the relevant time provided:
"(1)	The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.  
(2)	The maximum amount of damages that may be awarded for non-pecuniary loss is amount A, but the maximum amount may only be awarded in a most extreme case."
51		Amount A is $200,000.00.
52		For the purpose of assessing non-pecuniary loss (general damages) I accept the plaintiff prior to September 1996 was a healthy physically active young man engaging in various sporting activities, in particular Kung Fu, and that he is unable to continue such activities.  As I have indicated, I consider the plaintiff has exaggerated his symptoms but nonetheless there has been some level of disability. 
53		I consider the plaintiff's disabilities to be no more than 15 per cent as a proportion of the severity of a most extreme case.  Accordingly I would have allowed $30,000 for general damages.  
Gratuitous services
54		Section 93F of the Worker's Compensation and Rehabilitation Act  provided at the relevant time methods of calculations of gratuitous services.  It is unnecessary for me to consider the detail of such calculations.  Sub-sections (1) and (6) provide:
"(1)	This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or gratuitous services related to nursing and attendance that have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person.
…
(6)	If the amount of damages that may be awarded under sub-section (3) or (5) is amount B or less, no damages are to be awarded for the value of the services provided or to be provided."
55		Amount B is $5,000.00.
56		The plaintiff claims gratuitous services performed by members of his family.  Frankly, particularly on the evidence of his mother, it seems to me that the plaintiff did almost nothing by way of household chores prior to his disability.  The only area in which some allowance might be appropriate would be the chopping of firewood.  Wood chopping was only for a house at Roleystone (T113).  That was certainly not the basis upon which the plaintiff put it claiming that there had been chopping of firewood done since the time of the disability.  This adds to my impression of his credibility.  There have been two Roleystone houses.  The plaintiff moved to Roleystone about two years ago (T61).  The disability caused by the disc protrusions occurred at about the end of 2000.  Any allowance for gratuitous services restricted to wood chopping for about 12 months before that time would be less than $5,000 and accordingly no award should be made.  
Past loss of earning capacity
57		The plaintiff's work history was spasmodic.  There was no guarantee that the work he had with the defendant would have gone beyond the end of summer, say for another nine months.  Thereafter I am not satisfied he would have had regular employment.  I note the plaintiff was working 24.5 hours per week with the defendant at the time he ceased work.  The plaintiff said he had the opportunity for work of cleaning installed swimming pools but Van Beem denied this.  It may well be that the plaintiff would have found full time work; it may not. 
58		In a schedule the plaintiff calculated loss of earnings up to trial on the basis of full time work after 7 December 1996.  I don't think the evidence is sufficiently strong for me to make that assumption.  I think it best the plaintiff should have the assessment based on the 24.5 hours per week that is, a net figure of $215 per week.  To the periods of 12 weeks, 186 weeks and 75 weeks should be added a further 6 weeks to take the time up to judgment.  According to my calculations that is 279 weeks.  279 x $215 = $59,985.00.  From that must be deducted $20,632.25 being the net worker's compensation payments leaving a balance of $39,352.75.  
59		Apparently without any physical exertion on the part of the plaintiff, at about the end of 2000 he suffered a disc protrusion which, as I have noted, was part of the ordinary course of the degeneration of the plaintiff's spine.  Working in labouring or unskilled work, there was always a possibility that some injury would be caused because of the degenerative state of the spine.  It is of course speculative to say when that might have occurred.  There would, however, be a significant risk that it would have occurred prior to the end of 2000 if the plaintiff had put his back under strain in the ordinary course of carrying out work.  A 20 per cent discount is appropriate to take that contingency into account.  Twenty per cent of $39,352.75 is $7,870.55.
60		An amount of $31,482.20 for past loss of earning capacity would have been appropriate.
Superannuation
61		Applying the reasoning for past loss of earning capacity to the plaintiff's calculations of superannuation loss I would calculate that loss as follows.   7.5 per cent x $245 x 279 weeks x 70 per cent = $3,588.64 – 20 per cent, $717.73 = $2,870.91.
Paid services
62		In the plaintiff's schedule there is a claim for $1,300 for lawn mowing services.  I would not quarrel with that amount. 
Past travel
63		It appears a sum of $500 has been agreed for this item.
Interest
64		Using the plaintiff's calculations I would have allowed interest as follows $31,482.20 + $2,870.91 + $1,300 + $500 = $36,153.11 x 3 per cent x 5.25 years = $5,694.11.
65		For these reasons the plaintiff's claim should be dismissed.