IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI  2019 01275

MICHAEL COUGHLAN	Plaintiff	
		
v  		
		
UNITED PRECAST (VIC) PTY LTD	Defendant	

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JUDGE:	MACAULAY J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	27 July 2020	
DATE OF JUDGMENT:	13 October 2020	
CASE MAY BE CITED AS:	Coughlan v United Precast (Vic) Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2020] VSC 671	

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NEGLIGENCE – Damages for personal injury – Workplace accident where negligence admitted – Assessment of damages consequent upon injury – Brain and facial injuries involving impairment to memory and effect on mood, loss of eyesight in one eye, loss of sense of smell and partial loss of sense of taste – Loss of stereoscopic vision – Assessment of pain and suffering damages for such injuries – Successful return to work, subsequent gain of more remunerative employment and remains employed – Assessment of pecuniary loss damages - Question of extent to which injuries expose injured plaintiff to risk of future employment or less remunerative employment – Cullen v Trappell (1980) 146 CLR 1, Todorovic v Waller (1981) 150 CLR 402, Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594, Malec v Hutton (1990) 169 CLR 638, State of New South Wales v Moss [2000] NSWCA 133.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J Mighell QC with 
Mr G Coldwell	Maurice Blackburn Lawyers	
			
For the Defendant	Ms B Myers with 
Ms A Bannon	Russell Kennedy 	

TABLE OF CONTENTS

Introduction and Summary	1
Injuries and effects	2
Brain injury (memory, mood)	4
Loss of eyesight	10
Loss of sense of smell and taste	12
Facial injury and scarring	13
Pain and suffering damages	13
Future pecuniary loss.	16
Applicable legal principles	16
Employment experience and qualifications	19
Work capacity since injury	21
Assessment of damages for incapacity to earn income	25
Conclusion	29

HIS HONOUR:
Introduction and Summary
1	Michael Coughlan, now 39 years of age, was struck in the face by a heavy steel chain as he operated a gantry crane while employed as a rigger by the defendant (United Precast).  The blow rendered him unconscious for several minutes.  It broke bones in his nose, cheek and jaw causing some bony protrusion into the frontal lobe.  He spent 12 days in hospital, including having cranial surgery to insert plates.  From the surgery, he has scarring over his head mostly behind his hairline.  He has been left virtually blind in his left eye.  He has lost sensation on the left side of his forehead and cheek.  He lost his sense of smell and, because of that, most of his sense of taste.  He has some degree of memory impairment and some mood effects. 
2	After four months he had recovered sufficiently to return to his work as a rigger, on light duties.  A month later he was back to full hours and after about another month he was doing his full pre-injury duties.  Nevertheless, he no longer felt comfortable performing those duties and, in any event, was offered new employment in a field he had been pursuing for some years, working as a construction supervisor in a large building company.  He took up that employment in November 2015, earning a higher salary than he earned in his previous employment as a rigger.  At the time of trial in July 2020 he was still working in that same employment and had received several increases in pay.
3	Mr Coughlan sued United Precast in negligence for damages sustained from his workplace injuries.  United Precast admitted liability for causing the injuries to Mr Coughlan.  This proceeding now concerns only the assessment of the damages to compensate him for the losses he suffered in consequence of the admitted negligence.  The issues have been further narrowed as the parties agreed that his past economic loss is $30,000.  In short, the remaining issues to determine are what is a fair and reasonable sum to compensate Mr Coughlan, first, for his pain and suffering and loss of enjoyment of life and, secondly, for future pecuniary loss (if any). 
4	Counsel for each side put to the court specific monetary sums for each head of damage. Counsel for Mr Coughlan submitted that a fair and reasonable sum for pain and suffering and loss of enjoyment of life was $450,000 whereas counsel for United Precast submitted a figure of $300,000 was more appropriate.  The difference between the parties on the issue concerning future pecuniary loss was more fundamental.  For Mr Coughlan it was submitted that the court should allow 50% of his discounted future earnings to the age of 67 (less an allowance for ordinary vicissitudes of life), producing a sum of $489,955.  For United Precast it was submitted that it had not been established that Mr Coughlan had suffered any loss of future earning capacity and the court should not award anything for that head of loss; alternatively, if any allowance should be made it should be limited to only $15,000. 
5	In most respects, the facts were not greatly in dispute, although different levels of importance were placed on different facts by each party.  The greatest difference lay in the predictions of Mr Coughlan’s future employment prospects.  Mr Coughlan submitted that, due to his injuries, he now faced a precarious future with significant risk of future unemployment and reduced wages for the remainder of his working life.  United  Precast submitted that his work performance since his injuries simply does not bear out the scenario for which Mr Coughlan claims he should be compensated and that it has not been established that he faces the risk of losing any earnings in the future by reason of his injuries.    
6	For the reasons that follow, I think a fair and reasonable sum to award Mr Coughlan for pain and suffering and loss of enjoyment of life due to his injuries is $400,000.  Further, I consider that, by reason of his injuries, he does face a greater risk of unemployment and of earning less wages than he would have been capable of earning but for those injuries.  For his loss of future earning capacity, a fair and reasonable award of damages is $200,000.  As stated, damages for his past loss of earnings was agreed in the sum of $30,000. 
Injuries and effects
7	The injuries suffered by Mr Coughlan were succinctly stated in the report of the Royal Melbourne Hospital to which he was transferred by ambulance following the workplace accident on 12 February 2015.  The following passage sets out his injuries: 
Ambulance notes document that on the 12th of February 2015 Mr. Coughlan was at work when he was struck across his face by a chain which was hoisting a load of steel.  Mr. Coughlan then fell backwards against a wall and then to the ground losing consciousness for 2-3 minutes. On ambulance arrival, Michael had a Glasgow Coma Scale of 14 (confused) recovering to 15 over 15 minutes and remaining haemodynamically stable.
On arrival to the emergency department he was assessed by the Trauma team with head injuries including a nose laceration and left eye laceration noted. Routine bloods as well as an electrocardiogram and the following investigations were performed: 
–	CT Brain, facial bones and cervical spine:
•	Fractures through the anterior and posterior walls of the frontal sinus, with bony retropulsion into the anterior cranial region,
•	Small haemorrhagic contusions of the inferior right frontal lobe,
•	Bilateral nasoorbitoethmoidal complex fractures,
•	Fractures of the left maxilla, with intact left pterygoid plates,
•	Bilateral orbital roof fractures,
•	Tiny volume intraconal haematoma on the left,
•	No cervical spine fracture identified.
… The following day, a repeat CTBrain demonstrated fractures that were unchanged. An expected slight increase in swelling surrounding the right frontal lobe contusions was seen with some new left inferior frontal lobe petechial haemorrhage.
… On the 14th of February some cerebrospinal fluid leakage via the nose was noted. This was monitored closely.
Visual acuity on the 15th of February as assessed by the Ophthalmology team was documented as 6/4.5 (normal) with the right eye and only able to count fingers with the left eye which also has a traumatically dilated pupil. Neurosurgical team assessment documents likely permanent anosmia (loss of the sense of smell) as well as reduced sensation to the left face. Michael was assessed by the occupation therapist with no evidence of post-traumatic amnesia documented.
On the 17th of February, Mr. Coughlan underwent open reduction and internal fixation of the nasoorbitoethmoidal complex fractures, pericranial flap obliteration of nasofrontal duct, dural repair and eyelid laceration repair. Post-operative progress assessed clinically by all three teams involved (Neurosurgery, Maxillofacial and Ophthalmology) and radiologically was documented as doing well.  There was no documented change in the left eye visual acuity. The surgical drain was removed on the 20th of February … Mr. Coughlan was discharged home on the 24th of February.
Brain injury (memory, mood)
8	United Precast drew heavily upon the opinion of neuropsychologist, Professor Simon Crowe, to submit that the effects of the injury on Mr Coughlan’s cognitive functioning was minimal, with only mild attenuation of working memory and auditory memory.  These were said to be only minor and not clinically significant in any ongoing way.  United Precast also relied on Professor Crowe’s opinion that it was equally possible that Mr Coughlan’s memory issues are a consequence of early learning difficulties as they are the consequence of his mild traumatic brain injury.
9	Mr Coughlan urged me to conclude that he sustained a traumatic brain injury in the workplace accident that has caused diminution in his working memory and auditory memory which has had, and will go on having, significant compromising effects on his work capacity and enjoyment of life.
10	I will commence with a brief description of the effects of his brain injury as observed by Mr Coughlan himself,  his family members and associates.  After that I will turn to the medical evidence.
11	Mr Coughlan, supported by his partner of seven and a half years, Jackie Pernar, and his father, Shane, described a pronounced deterioration of his day-to-day memory following his injury, illustrated in a myriad of small ways.  Those included the need for Mr Coughlan to be reminded of daily tasks such as which grocery items to buy, appointments, family events and functions, previous conversations he had held and even family members’ names.  Each witness attested to the marked increase in the use of reminders in the form of notebooks and diaries, Post-it Notes, reminders on his telephone, messages to himself written on his hands, and Ms Pernar sending him text messages and making phone calls to remind him of things.  Ms Pernar and his father spoke of Mr Coughlan repeating himself about things that he had already told them.  
12	In the workplace, he is much more dependent on note taking and the use of a diary, using different coloured pens as an aid to memory.  As with home life, he must commit things to Post-it Notes and finds himself forgetful.  He needs continual reminders from his manager.  He is reportedly slower at tasks than other equivalent supervisors and he is also prone to repeating himself.
13	As far as mood is concerned, he has noticed within himself that he is more easily frustrated.  His partner and father both say he is more easily agitated and has less patience and a ‘shorter fuse’ than he had before the accident.  Both say that these various traits are different to what he was like before the injury.
14	No attacks were made on the credit of Michael or Shane Coughlan or of Jackie Pernar.  Michael Coughlan impressed me as a rather stoic type, more prone to understatement than to exaggeration.  Similarly, I found that both Shane Coughlan and Jackie Pernar were people who would ‘tell it as it was’.  
15	Mr Coughlan was seen by a consultant clinical neuropsychologist, Dr Matthew Hughes, on 23 March 2017.  He prepared a report on Mr Coughlan, having taken a history from him, considered various medical reports and administered a number of neurological and cognitive assessment tests.  As for intellectual functioning, Dr Hughes detected there was a significant difference between Mr Coughlan’s Perceptual Reasoning (92nd percentile) Index and his Verbal Comprehension (50th percentile) Index.  Further, he found that Mr Coughlan’s Processing Speed (30th percentile) Index was within the average range whereas his Working Memory (9th percentile) Index was scored within the lower limits of the low average range.  In summary, he found –
Mr Coughlan has reported memory difficulties, such that he has to write notes for all work tasks and check them carefully.  He also repeats himself in conversations.  He reported being observed to be short tempered.  He reports experiencing anxiety, and has less enjoyment from social interaction.
Mr Coughlan has demonstrated impairment with working memory and more complex higher-level attention tasks.  It was noted there were inconsistencies in his verbal learning due to poor attention and possibly being overloaded.  Whilst he demonstrated the ability to learn through repetition he demonstrated greater than expected losses of material over time, which were related to retrieval difficulties.  There was some inefficiency with higher-level aspects of cognition.  He showed reduced ability to shift mental set as well as reduced mental flexibility.  It is unclear if the discrepancy between verbal and visual abilities is reflecting a long-standing difference, or mildly suppressed verbal abilities due to the injury.  
…
Mr Coughlan’s deficits are consistent with the injury described.  There are no atypical aspects to his cognitive assessment results.  His injury is classified as Mild Neurocognitive Disorder due to traumatic brain injury.  He appears to function in everyday activities with greater effort and use of compensatory strategies.
16	Mr Coughlan was referred by his solicitors to Associate Professor Brian Chambers, neurologist, for examination and report on 25 February 2020.  Associate Professor Chambers is a neurologist with over 30 years clinical and research experience.  He is also the head of neurovascular ultrasound at Austin Health and a principal fellow of the University of Melbourne Department of Medicine.  He administered the Addenbrooke’s Cognitive Examination in which he found that Mr Coughlan scored 96/100, indicating ‘excellent cognition’.  However, he found some of the sub-scores were consistent with subtle planning impairment due to frontal lobe injury.  In summary he thought Mr Coughlan demonstrated no significant cognitive deficits although his reported irritability, impatience and a tendency to emotional lability were consistent with frontal lobe injury.
17	Mr Coughlan was also referred for assessment and opinion to Professor Simon Crowe, a neuropsychologist.  The interview and assessment took place on 11 January 2019.  Professor Crowe took a detailed history and administered a significant body of neurological and cognitive assessment tests.  One of those tests was the Test of Premorbid Function which Professor Crowe said estimates a level of performance preceding any injury.  According to that test, Mr Coughlan performed at a level better than would be expected in the case of Perceptual Reasoning but weaker than would be expected for the estimate in the case of Working Memory Index.  According to Professor Crowe – 
This indicates that Mr Coughlan is performing pretty much up to expectation for his function preceding any injury with no clear evidence of deficit but perhaps, with a mild attenuation of working memory on this occasion. It is heartening to note that the Processing Speed Index, which is considered to be a particularly sensitive indicator to the residual effects of traumatic brain injury, was performed at the expected preinjury level of function with no residual deficit.
18	After administering the Wechsler Memory Scale Version IV test, Professor Crowe concluded the results indicated a particular strength for visual memory and ‘perhaps a mild attenuation of auditory memory but still only very mildly lower than would be expected for estimates of his pre-injury functioning’.  Under the heading ‘Language function’, Professor Crowe reported the results of the Wechsler Individual Achievement Test Second Edition Abbreviated test which, he said, indicated ‘perhaps a past history of mild difficulty with verbal learning, suggesting that there may have been some longstanding verbal learning weaknesses … which predates the current injury’.
19	In summary, Professor Crowe concluded as follows:
The pattern of performances revealed by Mr Coughlan on this occasion indicates a man of 38 years and one month who was subjected to a complicated mild traumatic brain injury, some three years and 11 months ago, as a consequence of a steel chain swinging and striking him to the face. He performed as pretty much fully intact, perhaps with a mild attenuation of working memory and of auditory memory in comparison to other aspects of his performance. On balance, these are only very minor and would not be clinically significant in an ongoing way, in my view. He continues to suffer the effects of the problem with his vision as well as the problem with his sense of smell, which would have implications to his functioning in the world, both in terms of his apprehension of hazardous smelling material and in terms of his depth perception and his ability to be able to see appropriately. His memory functioning although with perhaps a minor compromise, is fully functional and certainly does not constitute a significant disability, in my view.
20	In answer to specific questions concerning his diagnosis, whether the accident of 12 February 2015 contributed to his condition and the extent to which any cognitive deficits may have been caused by non-work-related factors, he expressed these opinions – 
Mr Coughlan suffered a complicated mild traumatic brain injury as a consequence of the blow on the 12th of February 2015. This has left him largely intact with perhaps a mild compromise of verbal memory, as well as of working memory. It is possible that this predates the injury, as a consequence of the difficulty he had in learning to read as a child, and on balance, these are very mild deficits on this occasion.
…
He does indicate a mild attenuation of working memory and verbal memory, as well as of visual tracking. It is possible that the memory issues may have come about as a consequence of the complicated mild traumatic brain injury but it is equally as possible that this may be a residual effect associated with is learning difficulty in acquiring reading in his earlier life …
21	Dr Hughes was challenged in cross-examination by counsel for United Precast about the extent of the deficit that he found in Mr Coughlan’s memory functioning compared to what Professor Crowe found.  Dr Hughes accepted that he found greater deficit, but he surmised that that was because he attributed greater weight to the history provided by Mr Coughlan about the day-to-day effects of his memory difficulties.  He explained as follows:
… looking at the test scores and the deficits he’s got, I’ve classified the cognitive aspect of his impairment as mild neurocognitive disorder but I can see it’s consistent with the behavioural changes he’s got, how important frontal lobes are in functioning, that … this has implications for this person rather than being considered more benign.  It’s – it’s more likely to impact him in his functioning.  It’s not … insignificant.  So maybe I’m drawing a greater conclusion from the clinical history and the information.
22	Consistently with that view, in his report Dr Hughes recorded Mr Coughlan’s account of day-to-day memory-related problems after the accident in some detail.  By contrast, in his report Professor Crowe merely recorded that Mr Coughlan – 
… noted that he does have some memory problems or at least people tell him so.  He noted they tell him that he has told them things before or that they have had the conversation before … he noted that at work he is more cautious about forgetting things.  He notes everything down in a notebook now.
23	When asked about the significance he placed on Mr Coughlan’s reported memory problems, Professor Crowe explained – 
I did formal testing of his memory, which would be independent from his self-report and self-reports as data are subject to … significant concerns with regard to veracity, understanding on the part of the individual him or herself.  So it is in my view of less probative value that a formal test of memory in ascertaining level of memory function.
24	As I understand their evidence, part of the explanation for the difference in their various assessments of Mr Coughlan’s cognitive effects from his injury lay in the interpretative role of Mr Coughlan’s self-reported memory disability following the accident.  Whereas Dr Hughes was prepared to allow the history he took to help shape his assessment, Professor Crowe was less prepared to do so.  
25	In the end, the difference between the doctors’ views was mostly a difference in degree.  Both accepted a degree of memory impairment but one (Professor Crowe) placed more reliance on the scientific testing than the patient’s report.  Although I take into account Associate Professor Chamber’s assessment of ‘excellent cognition’, his assessment was made after the administration of only one test and I did not have the benefit of hearing his views tested in oral evidence. 
26	As Professor Crowe observed, self-reported history can be unreliable due to matters of veracity and individual understanding.  Adopting that framework as a general rule may be a valid, cautious scientific approach.  But if a court accepts a particular individual’s account of his memory changes — particularly when supported by other credible observers of his before-and-after behaviour — the court need not be limited to relying upon the purely objective, scientific assessment.  
27	In Mr Coughlan’s case I accept the lay observations that since the accident he has encountered significant changes to his working memory and auditory memory.  Those difficulties have had a material impact on the way he goes about his life on a day-to-day basis.  They have also impacted his work functioning, although I accept the caution urged by United Precast that it is more difficult to compare his pre and post-accident working capacity from his reported difficulties because he did not perform the same role before the accident as the one he has been performing since November 2015.  As described below, his current work role places more demands on his memory than his pre-accident role as a rigger and gantry crane operator did.
28	As for whether Mr Coughlan’s memory issues may be the consequence of early-learning difficulties rather than the 2015 workplace injury, on the balance of probabilities I find that those memory difficulties have been caused by his workplace injury.  Professor Crowe was only prepared to put the two alternatives as being of equal probability.  Apart from Professor Crowe’s opinion that the test results suggested the existence of some ‘longstanding verbal learning weaknesses’, the only other admissible evidence on the topic came from Mr Shane Coughlan.  When asked if his son had had early learning difficulties at school he denied it.  No question had been put to Mr Michael Coughlan himself on the subject.  
29	On this matter, I find it too much of a coincidence that Mr Coughlan’s memory deficits manifested themselves in a significant way only after the 2015 injury for those deficits not to be causally related to that injury.  The timing of the observable memory deficits tips the balance of probabilities toward a finding of causal connection. 
30	No doctor disputed that the observed changes to Mr Coughlan’s temperament was consistent with the frontal lobe insult and most likely caused by it.  
Loss of eyesight
31	The blow to Mr Coughlan’s face fractured the bones around the left eye socket.  His treating ophthalmic surgeon, Mr James Galbraith, found that he had choroidal rupture with some sub-retinal haemorrhage involving the macular.  He has lost most of the central vision in his left eye, but retained the greater part of his peripheral vision.  Dr Nave, who examined him on behalf of United Precast, found that he had lost 98% of visual acuity of his left eye but, together with some retained peripheral vision and the normal vision in his right eye, still had a ‘reasonably good visual field’.  
32	The significant loss of central vision in his left eye has left him with poor stereoscopic vision, as explained by Associate Professor Justin O’Day:
He is likely to be able to continue to work in the same environment that he was in, however, the physical work that required stereoscopic vision would be made much more difficult.
I do not think that the future work would produce a material change to the ocular status.  The specific visual problem that Mr Coughlan has relates to a reduction in his central vision in his left eye which leads to poor stereoscopic vision.  He would therefore have difficulty in working at close range to heavy machinery and playing sports would be made more difficult because of the lack of stereopsis.  
I do not think there is any specific assistance that Mr Coughlan requires from a visual point of view.  I do not think there is any sequential illness or condition that he would develop as a result of his employment from a visual point of view.
33	Mr Coughlan describes the difficulties he had as a result of the poor stereoscopic vision after the accident.  He had difficulties with depth perception over uneven ground.  Because of the same difficulty, he lacked confidence on ladders and scaffolding and preferred not to use them on building sites.  His treating doctor, Mr Galbraith, thought that from a medical point of view Mr Coughlan was capable of climbing a ladder or using a scaffold. Nonetheless, if Mr Coughlan himself felt uncomfortable in doing those things and took the view that he should not use those devices, Mr Galbraith considered that to be a reasonable response and said he would ‘support him’ in that view.
34	Mr Coughlan also stated that, since the accident, he felt greater sensitivity to light and glare and wore tinted glasses and had to shade his eyes in bright light.  He also found his eyes would dry out more quickly requiring him to use eye drops to relieve discomfort.  The same dryness and tiredness restricted his use of computers to only two hours at a time since the accident.  Sometimes, he said, he needed to rest and lie down at the end of the day due to eye strain, and he occasionally suffered headaches.  His partner, Ms Pernar, confirmed that his eyes irritated him, for example, after driving for too long.  She also felt that he was a less confident driver and sometimes had difficulty parking.  A few times he had had some near misses when coming too close to other vehicles.  Associate Professor O’Day did not appear to think that using lubricant drops in his eye was a medical necessity although accepted it may have some subjective benefits.
35	I accept the evidence of Mr Coughlan concerning the effects of his loss of vision in his left eye both at home and in the workplace.  Although some of those effects (eye tiredness and reluctance to use ladders) may involve an element of ‘subjective’ response, they are nonetheless a real consequence of the injury.  As I take the doctors to have explained them, they are reasonable and explicable manifestations of the physical loss of sight which are particular to Mr Coughlan.
Loss of sense of smell and taste
36	There is no dispute that as a result of the accident Mr Coughlan has suffered a complete loss of smell and, as a secondary consequence, some loss of taste.  He and Ms Pernar gave evidence of incidents which have occurred since the accident which illustrate the effects of his loss of smell.  On one occasion, something caught fire in the car in which he and Ms Pernar were travelling and it was only when Ms Pernar smelt it that it was detected as Mr Coughlan could not smell the fire.  On another occasion a small fire began in their backyard whilst Mr Coughlan was at home but he was unaware of it because of his lack of sense of smell.  At work there was an incident where he was unable to smell a gas leak at a worksite.
37	Mr Coughlan and Ms Pernar have a daughter who, at the time of trial, was 18 months old.  She was born after his accident.  Mr Coughlan told the court that one of the great regrets he has of no longer having a sense of smell is that he has never been able to smell his newborn.    
38	Concerning his sense of taste, Mr Coughlan can taste the difference between saltiness and sweetness, but now regards everything else in between as tasting much the same.  He cannot taste the difference between different alcoholic drinks or different meats — he could only tell the difference between beer and wine because one is fizzy and the other is not.  He is unable to enjoy food the same way that he could before the accident and has less interest in going out to eat, or even in home-cooked meals (Ms Pernar, being particularly competent and interested in cooking given that she teaches cooking for a living).  
Facial injury and scarring
39	The blow to Mr Coughlan’s head has left him with some nerve damage causing some loss of sensation in his face, forehead and around the nose.  The surgery at the Royal Melbourne Hospital to repair his fractured eye sockets and facial bones involved cutting and subsequently restitching the skin of his head stretching from one ear, travelling up and over the top of his head, and reaching to the other ear.  That scarring is mostly hidden behind his hairline.  Since his injury, one of his front teeth also feels as if it is dead.  
40	Despite his various conditions, since his hospitalisation and a few months afterwards, Mr Coughlan has, happily, required surprisingly little treatment.  Other than using lubricant drops for sore eyes and taking Panadol for headaches (associated with eye-tiredness) on about a 1 - 2 monthly basis, his only ongoing medical treatment is two-yearly reviews with his ophthalmologist to monitor intraocular eye pressure.  
Pain and suffering damages
41	Under this head of damage, Mr Coughlan is to be awarded fair and reasonable compensation in monetary terms for the pain and suffering he has experienced (and may continue to experience) as a consequence of his injury, and for the loss of enjoyment of life (sometimes described as loss of amenity).  Damages are to be awarded once and for all, for the past and the future, and are to be assessed in today’s monetary terms.  Being a fair and reasonable award, it is to be neither too generous nor too mean.  
42	The effects of Mr Coughlan’s injuries were examined in considerable detail during the trial.  It is not necessary that I repeat all of the effects in every particular, but I shall highlight some.
43	First, there is no doubt that the accident itself, the surgical and medical procedures, and the period of recovery and convalescence involved significant pain, distress and discomfort to Mr Coughlan.  
44	At the time of the injury on 12 February 2015, Mr Coughlan was a relatively young man, 34 years of age.  He was fit and in good health, and had a partner (Ms Pernar) with whom he had been living since 2012.  He was a member of close-knit, strong family which was accustomed to gathering regularly.  He had been regularly employed since leaving secondary and tertiary education.  He participated in outdoor sports such as snowboarding, surfing and wakeboarding, engaged in hobby cars, playing and rehearsing as a bass-guitarist with a band, and followed the football.  He regularly associated with a healthy circle of friends and periodically travelled both within and outside of Australia for pleasure.
45	As a result of his injuries he has, as he put it, lost ‘two and a half of my five senses’.  That is, he has substantially lost sight in his left eye, lost his sense of smell and has significantly reduced sense of taste.  The loss of these faculties is permanent, meaning he will endure a consequentially diminished appreciation of everything around him for the remainder of his life.  Of course, as typically happens, he will adjust to these limitations to a degree as he has already done and may continue to do.  But, to acknowledge that reality is not to diminish the significance of his loss.  Fortunately for Mr Coughlan, he appears by nature to be stoic and positive in outlook but, again, that is no reason to underplay the degree of his loss or to reduce the award of damages which he should receive.
46	That said, throughout the evidence United Precast was careful to elicit examples of the things that Mr Coughlan was still able to do, just as Mr Coughlan drew attention to those things he could not do, or could not do so well or easily.  
47	In his family life, he and Ms Pernar have since had a child and have built their own home.  Mr Coughlan is able to participate in family life and enjoys his new daughter but, as noted, he is deprived of the sensory appreciation of her scent.  Although his wider family life remains strong and vibrant, he is forgetful of family events (and sometimes family members’ names) and needs regular reminders about them.  He is conscious of the fact that he is now prone to repeating himself because of his memory deficits.  He is also more readily agitated and frustrated which must, inevitably, create some relational tensions at times.  Further, his enjoyment of food and drink has been markedly reduced to the extent that it lessens his enthusiasm for going out for social activities that centre on eating and drinking. 
48	He remains physically capable of working around the home, although he is far more cautious working with tools and machinery being scrupulous to protect his eyes with safety glasses.  Naturally, he worries more than he used to about protecting his eyesight given that an injury to his ‘good eye’ could have disastrous consequences.  As an indication of his retained capacity, he was able to supervise the construction of his own home (a home that was built by his employer, ABN Group) and he and his father landscaped both the front and back of the new home.
49	Because of the reduction in his stereoscopic vision, commonplace activities now present greater challenges:  walking over uneven ground, driving, parking the car, catching a ball, and so on.  Although he continues to participate in the hobby of snowboarding, he describes some difficulties in judging the slope and distances ahead, particularly in poor light.  He has continued (when time and circumstances permit) to travel both within and outside of Australia, he continues to see his friends, he continues to rehearse with the band on a fortnightly basis, and he is generally able to participate in most of his pre-injury recreations (with the limitations I have described).  He requires only minimal ongoing medical treatment and it is likely that his injuries have stabilised and will not deteriorate. 
50	So the picture overall is of a very significant set of injuries that have left Mr Coughlan with permanent losses of bodily functions which have diminished, and will continue to diminish, his enjoyment of life in all its fullness.  And the effects are not only physical, but extend to some observable, adverse changes in temperament.  He has many years ahead of him to live with those consequences of his injuries and I expect there will ever be daily reminders to him of what he has lost and how he has been changed.  Nevertheless, despite that, he remains able to enjoy a substantially rewarding and balanced lifestyle, mostly free of pain, across the fields of family life, leisure and (with the limitations described further below) employment.  
51	In sum, his injuries and their consequences are significant and long term.  In my opinion, a fair and reasonable award of damages under this head is $400,000.  
Future pecuniary loss.
Applicable legal principles
52	It is well to commence with a reminder that under this head, damages are awarded to compensate the injured plaintiff for the loss of income earning capacity.  As explained by the High Court in Cullen v Trappell, the problem therefore is to value a capital asset of the injured person, namely his or her capacity to earn money.  The onus lies on the plaintiff to establish that loss of income earning capacity but, the plaintiff having done so, if the defendant contends that the plaintiff has a residual earning capacity the onus lies upon it to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person.  
53	So, has Mr Coughlan established some diminution of that ‘capital asset’ as a result of his workplace injury and, if so, what award of damages should be made to put him in the position he would have been in but for his injury?  
54	A comparison between the amount of money that his income earning capacity would have yielded but for his injury, and the amount of money it will yield after his injury, may be a useful means of attempting to value the impact on his income earning capacity.  Nevertheless, one should not lose sight of the fact that the ‘yield’ is not the same as the ‘asset’ itself.  That distinction is of particular importance given that making reliable predictions of Mr Coughlan’s income over the next 27 or so years of working life is inherently problematic.  
55	The point is well illustrated in this passage in Todorovic v Waller. Having stated that it is impossible to assess damages for pain and suffering and loss of amenities of life by any process of mathematical calculation, the High Court continued - 
It may be less obvious, but is no less certain, that the assessment of damages for future pecuniary loss resulting from personal injuries can never be a mere matter of mathematics. It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. In the case of loss of earning capacity it is necessary to compare what the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition. In many cases this means that the court has to engage in “a double exercise in the art of prophesying”: Paul v. Rendell. Of course in some cases of serious injury it will be possible to say that the plaintiff is probably capable of earning nothing in the future. However, in no case can there be any solid basis on which to determine what the plaintiff would have earned if he had not received the injuries in respect of which he sues. Actuarial tables will show the average number of years which will be lived after a certain age by those alive at that age, but will not show that it is probable that the plaintiff, even if in good health, would have conformed to the average. No evidence can possibly indicate whether the plaintiff, had he not been injured, would have remained in good health, and continued to be employed at any particular rate of earnings. For these reasons, damages for financial loss likely to result from personal injury “can only be an estimate, often a very rough estimate, of the present value of his prospective loss”: British Transport Commission v. Gourley, per Lord Reid. Ultimately the process must always be one of judgment rather than calculation.
The difficulty inherent in the assessment of damages provides no reason for the courts to shirk the task of arriving at the estimate most likely to provide fair and reasonable compensation. But it may provide a reason for approaching with some caution a proposal to overturn an established method of assessment, in an attempt to achieve an accuracy which it is not humanly possible to attain.
56	As mentioned earlier, Mr Coughlan returned to his full, pre-injury employment on a staged basis between four and six months after his injury, and then obtained his current employment as a construction supervisor with ABN Group in November 2015.  At present he remains employed with ABN Group.  As I will explain there are some clouds on the horizon concerning his ongoing employment with ABN Group, but whether those clouds bring about loss of employment and, if so, whether Mr Coughlan will have any ongoing difficulties in obtaining further or equally remunerative employment are matters of real contest in this case. So is the question whether the real risk of future unemployment for Mr Coughlan lies in a broader construction industry downturn in the wake of the Covid-19 pandemic rather than effects of his workplace injury, and how to differentiate between the two as a matter of future prediction. 
57	In framing the issues for trial, counsel for both parties posited the first question for this head of loss as being whether Mr Coughlan had any entitlement to damages for future pecuniary loss in accordance with Victorian Stevedoring Pty Ltd v Farlow where Scholl J said in respect of a claim for loss of future earning capacity – 
But unless they [the jury] can find on the evidence that the plaintiff is unlikely to remain in such employment, and unlikely to find other work at a comparable wage, they are not entitled to compensate him upon the basis that he will never work again.  And unless there is evidence upon which they can find it likely that he will earn less money, the most they can lawfully do is to compensate him to the extent of a reasonable and moderate evaluation in money of the mere chance or risk of future unemployment or less remunerative employment.  
58	At trial, Mr Coughlan appealed to the principles for assessing damages for the loss of a chance as enunciated more recently by the High Court in Malec v Hutton and applied by the NSW Court of Appeal in State of New South Wales v Moss.  In Malec v Hutton when assessing damages for personal injury, Deane, Gaudron and McHugh JJ said:
If the law is to take into account future or hypothetical events in assessing damages, it can only do so in terms of degrees of probability of those events occurring.  The probability may be very high - 99.9 per cent or very low - 0.1 per cent, but unless the chance is so low as to be regarded as speculative, say less than 1 per cent, or so high as to be practically certain, say over 99 per cent, the court will take that chance into account in assessing the damages.  Where proof is necessarily unattainable, it would be unfair to treat as certain, a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring.  Thus, the courts assess the degree of probability that event would have occurred or might occur and adjusts its award of damages to reflect the degree of probability.
59	Specifically in connection with assessing damages for lost earning capacity, Heydon JA said in Moss at [71]:
Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income.  It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events.  It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers.  It is an exercise in estimation of possibilities, not proof of probabilities.
60	The learned author, H Luntz, in Assessment of Damages for Personal Injury and Death,  said at 91 [1.9.18]: 
It is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss …  The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant’s wrongful act.  
61	It is with these principles in mind that I turn to the evidence.
Employment experience and qualifications
62	Michael Coughlan completed year 12 secondary education and attended two years of an Information Technology course at Ballarat University.  He failed half of his subjects in that course, seemingly because he did not enjoy it and did not apply himself.  From his cognitive profile as measured by the neuropsychologists, his performance at university might also be related to the fact that his strengths lie mostly in non-verbal learning, visuospatial problem solving and hands-on activity.
63	Soon after leaving university, he obtained a traineeship at a roof-truss manufacturing business, Trusses Plus, situated in Deer Park, a suburb of Melbourne.  He commenced work there around 2001.  Although not a formal apprenticeship, he was trained in the use of a computer-aided design system whereby he would design roof trusses required for a particular building site and then convey the specification for the required trusses to the manufacturing team who would then assemble them.  Thus, the role first required him to attend a site to measure up from engineering plans and by taking physical measurements and then return to the office to design the trusses using the specialised design software on a computer.  He estimated that the job involved about 20% of onsite work and 80% of work in front of a computer.  Importantly, for the present purposes, the measuring role on site required the regular use of ladders for him to measure beams, wall plates and the like.  
64	After some three or four years of working for Trusses Plus, Mr Coughlan set off on a working holiday to Europe.  Both in England and in Ireland he obtained employment as a truss designer and detailer for a total period of approximately two and a half years.  He did similar sort of work there as he had done in Australia, but in Ireland he also assisted a start-up roof truss business commence its production.
65	Upon return to Australia in about 2007 he took up employment again with Trusses Plus in Deer Park where he worked for a further six or seven years.  After a time he was promoted to Senior Truss Detailer, a role which put him in charge of a design team of up to five designers.  Whilst working at Trusses Plus Mr Coughlan took time to obtain a number of trade certificates and qualifications by additional training and study which he undertook at nights and on weekends:  a rigger’s ticket, forklift ticket, dogger’s ticket, crane certificate and a Certificate III (or possibly IV) in Building Construction with the Master Builders of Victoria. 
66	A reason for obtaining the certificate in building construction was that Mr Coughlan was keen to obtain employment as a building construction supervisor.  Over a period of approximately two years prior to his accident in February 2015 he had applied for such a role, without success.  One of his unsuccessful applications had been made to ABN Group, one of the largest volume builders in Australia.
67	In mid-2014 Mr Coughlan left his employment with Trusses Plus because he felt he needed a change from the role he had been performing for more than a decade.  He took the view that, if necessary, he could always return to truss design if he did not find something else he preferred.  
68	He obtained employment with United Precast as a rigger and gantry crane operator.  United Precast is a manufacturer of large pre-cast concrete panels which are used for building construction.  Mr Coughlan’s role, primarily, was to move the panels around the factory through their different stages of production using a gantry crane.  His work also involved some general labouring and operating a forklift to unload steel for use in the concrete panel construction.
69	It was in that role that he sustained his injury in February 2015.  
Work capacity since injury 
70	As mentioned, Mr Coughlan’s return to work was staged.  At each point he was certified fit to return to the next level of activity by his ophthalmologist, Mr Galbraith.  In particular, on 21 August 2015 Mr Galbraith certified Mr Coughlan fit for his normal duties knowing that those duties included the operation of a crane and a forklift.
71	In cross-examination, Mr Galbraith clarified his position to be that he believed Mr Coughlan fit to perform his duties from a medical point of view, but if upon returning to work Mr Coughlan felt it was not something he was comfortable and safe performing, Mr Galbraith would support that position.  According to Mr Galbraith it was understandable that a person with reduced stereoscopic vision would feel uncomfortable and unsafe operating a crane manoeuvring large items like concrete panels.  The same, he said, would apply to Mr Coughlan’s sense of comfort and safety when climbing ladders and walking on scaffolding.
72	Associate Professor O’Day, who examined Mr Coughlan for medico-legal purposes, expressed the view that with his reduction in stereoscopic vision, Mr Coughlan would not be fit to return to operating a crane, a forklift or working as a rigger.  He expressed that view, however, unaware that Mr Coughlan’s treating ophthalmologist had certified him fit to return to such duties and that he had in fact returned to those duties.  Associate Professor O’Day explained that discrepancy by pointing out that medical experts might reasonably disagree given that the opinion involves a judgment of both an objective and subjective nature.
73	In any event, Mr Coughlan himself said he felt very uncomfortable on his return to work, especially operating the gantry crane.  The concrete panels weighed many tons and were up to six metres in length.  Because of his difficulty judging distances, Mr Coughlan could not tell how close the far end of the panel was to the end of the rack into which he was required to place the panel.  He worked much more slowly than before, yet speed at work was important to the business.  He thought that he was ‘an accident waiting to happen’.
74	It was in those circumstances that a construction supervisor position came up at ABN Group and he was contacted and offered the role.  Evidently, he did not tell ABN Group about his recent workplace injury or any limitations to his work capacity.  Over time, however, it became obvious that he had no sense of smell and a great dependence on taking notes and thus his accident and injuries became known. 
75	At ABN Group, a construction supervisor is allocated to a team responsible for the supervision of the construction of houses and townhouses.  In his initial team, the houses Mr Coughlan was responsible for supervising were in disparate locations.  Later on he obtained a transfer to a team where the houses were all situated in the one development, making the role somewhat easier for him. 
76	His employment with ABN Group was more lucrative than his previous role.  It was also more responsible.  A construction supervisor orders materials and coordinates trades.  Essentially, the supervisor is responsible for the construction of the houses or townhouses according to a schedule of works.  Mr Coughlan said he is on site most of each day.  Each site has an onsite office with a computer which he would use on a daily basis as part of his role.  He explained that because of the strain on his eyes, his use of the computer is limited to two hours after which he needs a break.  As already mentioned, he lives by notebooks, notes and a diary to remember the tasks he has to undertake.  He also finds he gets more frustrated at work than he used to do and described an incident where he angrily reacted to his manager and later had to apologise.
77	His most recent manager, over about the four months preceding the trial, is Mr Mark Holden.  Mr Holden said that Mr Coughlan was slower than other supervisors, could only work on a computer for a short time, made mistakes regularly, had problems using scaffolding or ladders, needed a lot of reminders for daily tasks and is short tempered. In contrast to the picture presented by those descriptions, the role of construction supervisor was one that Mr Coughlan had pursued for many years.  He said it was a job he found rewarding;  it was his career goal;  he felt he was good at it; and he believed that ABN Group thought so too.  He was happy there and planned to remain in that job.
78	His belief that ABN Group was happy with his performance both stemmed from and seemed to be corroborated by the fact that he had received a number of pay rises over the course of his employment.  At least some component of those pay rises reflect bonuses awarded for projects being completed within the scheduled build-time.  His commencing full- year pay was $85,000.  He received pay rises of approximately 15% in 2018/2019 and another 10% in 2019/2020, such that his salary at trial was $115,000 per annum.
79	The trial occurred in the middle of the COVID-19 pandemic.  As it has done in many industries, the pandemic has created great uncertainty for the immediate future of the building and construction industry.  Mr Coughlan said he is greatly worried about his job security at ABN Group.  Should he lose his employment, he is also worried about his prospects of regaining substitute employment in any area for which he is qualified and capable of performing.  Mr Holden said that the ABN Group had no work in the ‘project pipeline’ after March or April 2021 – unless, he said, ‘things improve dramatically’ – which is different from the company’s experience of the past few years.  For his own part, he has begun to make enquiries about a possible return to work in the mining sector as a mechanical engineer, a field in which he had previous experience.
80	If Mr Coughlan loses his employment with the ABN Group, he considers that he would not be able to return to previous fields of employment such as truss design, or forklift or crane operation.  That is because he feels he would not be comfortable operating machinery with his stereoscopic vision impairment, nor climbing ladders or scaffolding.  Nor could he use computers for long periods of time due to his eye strain and associated tiredness.
81	Mr Coughlan obtained a report from a psychologist who specialises in vocational assessment,  Ms Katrine Greene.  Ms Greene also gave evidence in the proceeding.  She was of the view that Mr Coughlan had a number of impediments for securing or sustaining employment in the current, very competitive labour market.  In particular, Ms Greene was of the opinion that: 
•	the fatigue Mr Coughlan tends to experience would be an impediment to any driving occupation, or an occupation involving long periods of time on a computer; 
•	potential changes in the construction and building industry market are likely to cause redundancies which will increase the amount of competition for jobs; and
•	because Mr Coughlan has a history of workplace injury, he will be considered a high-risk candidate from an occupational health and safety perspective and would be competing against potentially more experienced candidates without workplace injuries.
82	In conclusion, Ms Greene believed that if Mr Coughlan lost his employment his various cognitive impairments and barriers to gaining employment meant that ‘he is likely to be unsaleable in any job market reasonably open to him’.
83	In my opinion, Ms Greene’s view overstates Mr Coughlan’s impediments and underrates his ability to find and sustain employment.  Mr Coughlan has been highly motivated to obtain employment since leaving tertiary education and has an excellent employment record.  As emerged in cross-examination of Ms Greene, the information she obtained regarding Mr Coughlan’s qualifications, career aspirations and his performance in his current role was unsatisfactory.  Ms Greene’s highly pessimistic view about Mr Coughlan’s prospect of obtaining any employment, to the extent that it takes account of Mr Coughlan’s history of workplace injury, is at odds with the objective fact that he obtained his current role in his chosen field, with a significant Australian building company and with no prior experience. He did so at a time when his injury was much more proximate to the time of seeking that job than it will be on any future occasion.  
Assessment of damages for incapacity to earn income
84	Mr Coughlan argued that I should find that he has no capacity to return to the type of work he was employed in prior to his injury (with the exception of labouring).  I was also urged to find that he has limited capacity to work as a construction supervisor.  Further, he argued that he is at significant risk of losing his employment as a construction supervisor in part because of the expected industry downturn, but also in part because of his reduced capacity to perform all aspects of his employment at the level of other supervisors.
85	United Precast submitted that there is simply no evidence to suggest any real probability that Mr Coughlan will lose his job in the foreseeable future.  Insofar as Mr Coughlan has a concern about the long term viability of his employment in the building industry due to the pandemic, United Precast argued that that is a concern which he shares with every employee in the sector regardless of his particular impairments.  Moreover, United Precast argued that far from being an uncompetitive candidate for re-employment in the construction industry, five years of successful performance as a construction supervisor in a major national building firm is likely to have enhanced his employability.  Further, in response to the argument that Mr Coughlan will not be able to return to past jobs such as a roof truss designer or a rigger/crane operator as a fall-back position should he lose his employment, United Precast argued that the same industry conditions which might cause him to lose his present job as a construction supervisor would equally remove the availability of those other types of jobs from him in any event.  In other words, even if he had been fully able and not injured, his prospect of finding fall-back employment would equally have been impaired because of the downturn in the sector.  
86	On the current evidence, it is not possible to conclude on the balance of probabilities that Mr Coughlan will lose his current job in the foreseeable future.  While that remains a possibility, the economic situation is highly changeable and the short and longer term effects of proposed Government stimulus measures make the forecast even more difficult to predict.
87	Having regard to the evidence I have summarised, I am not persuaded that, but for the current economic crisis, Mr Coughlan would be at any high degree risk of losing his employment as a construction supervisor with ABN Group.  He has been there for a period nearing five years.  He believes he is successfully performing his job despite (or because of) the adjustments he has had to make to carry out his required tasks.  Weighed against Mr Holden’s assessment of him (mainly of recent origin) is the consistent trend of him receiving bonuses and salary increases and the absence of any adverse reviews of his performance.  If Mr Coughlan were to lose his job at present, in my view that would more likely be because of an industry-wide problem and not because (or mainly because) of any limitation in his work capacity.  Mr Holden acknowledges that he faces that same risk, and he has no injury impediment.
88	That said, there exists at least a risk that if his employer were forced to lay off a percentage of its workforce, Mr Coughlan may be selected as one to lose his position ahead of another supervisor if his performance was regarded as inferior.  It is very difficult to judge the likelihood of that particular scenario playing out, but I accept that it exists as a risk.
89	Further, I am not wholly persuaded that should Mr Coughlan lose his current employment and be unable to obtain a similar role in another building company he could not, because of his injuries, return to any form of employment of the kind he has performed in the past.  While he may have felt uncomfortable working as a gantry crane operator or a forklift driver soon after his accident five years ago, if they the only roles available to him now I am not convinced that he could not or would not take them – especially if a job was available that did not involve quite so much challenge as handling massive swinging concrete panels.  There are other forklift and hoisting type jobs that would be of a more benign nature.  On the medical evidence, his incapacity is not wholly physical in nature but equally consists in a greater sensitivity to risks to his safety (which I do not mean to deny).  Importantly, I reiterate my view that Mr Coughlan is by nature well motivated to obtain employment and has shown himself to be adaptive.
90	Clearly, though, if such alternative jobs were only unavailable because of an adverse industry situation then the risk of Mr Coughlan being unable to obtain alternative employment to a construction supervisor would not be attributable to his injuries, except to the extent that he had been put off his construction supervisor job in the first place because of his work incapacity.
91	This short discussion of the possible future outcomes, and the different potential causal threads, serves to reinforce the inherently speculative nature of estimating the value of Mr Coughlan’s loss of earning capacity due to his injuries. The prediction I am seeking to undertake is also one that extends over a period of time that will hopefully outlast the current economic downturn.  There could be several cycles of upturn and downturn over the duration of Mr Coughlan’s future working life.  
92	I accept the argument that Mr Coughlan’s workplace injuries have, to some degree, injured the ‘capital asset’ which is his income-earning capacity.  His injuries have diminished that asset by rendering him less flexible and agile in the roles he is suitable for performing.  He has fewer options than he had before.  But I do not consider them quite as limited as was argued on Mr Coughlan’s behalf.  While I do accept that Mr Coughlan has suffered a diminution of his income-earning capacity, the question is whether that diminution exposes him to a significant risk of loss of income in the future, or otherwise.  It is very difficult to say with any degree of confidence.  Nevertheless that difficulty is no reason to shirk the task of awarding damages as best as I can evaluate them.
93	In my opinion, looking ahead, it is not useful to try and assign some percentage figure to Mr Coughlan’s current discounted weekly earnings as a means of estimating his loss, as has been argued on his behalf.  Such a method involves the assumption of a percentage risk that some specific future event might occur, namely that there will be particular periods of time of no income at the rate of a construction supervisor’s earnings.  More realistically, I think Mr Coughlan faces a degree of risk that, because of his injuries, he will face some periods of time without earnings, should he lose his job before he can obtain another one;  and, perhaps, some periods of reduced income in alternative, lesser-paid employment before he can be re-employed at the equivalent rate to his present rate of pay as a construction supervisor.  It is possible that such a cycle, or something like it, could repeat more than once over the next 27 years.  
94	To fairly compensate Mr Coughlan for that risk, being neither too generous nor too mean, I think it is more appropriate that he be awarded a reasonable and moderate sum for the mere chance or risk of future unemployment or less remunerative employment.  Because that chance or risk will be permanent and ongoing over a long period of time, and the chance is real and not fanciful, the amount should be substantial and not de minimis as United Precast would have it.  
95	In my opinion, an appropriate sum to compensate Mr Coughlan for that risk is $200,000.  
Conclusion
96	For the reasons stated, I assess Mr Coughlan’s damages consequent upon the injuries he sustained on 12 February 2015 as follows:
(a)	$400,000 for pain and suffering and loss of enjoyment of life;
(b)	$30,000 for past pecuniary loss (as agreed by the parties); and
(c)	$200,000 for future pecuniary loss.
97	I will hear the parties on the appropriate orders to give effect to these conclusions.