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Lubbering v Bougainville Copper Ltd [1977] PNGLR 183 (23 June 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 183 - Wilhelm Lubbering v Bougainville Copper Ltd

[1977] PNGLR 183

N97

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WILHELM LUBBERING

BOUGAINVILLE COPPER LIMITED

Waigani

O’Meally J

26-29 April 1977

2 May 1977

23 June 1977

MASTER AND SERVANT - Liability of master for injury to servant - Common law liability - Safe system of work - Duty of employer to devise, institute and maintain safe system of work - Necessary to give warnings of risks of injury and provide suitable equipment - Failure to warn of risks and provide suitable equipment renders system unsafe - Delegation of duty to provide safe system of work - Delegation must be reasonable, concurred in and accepted by employee.

MASTER AND SERVANT - Liability of master for injury to servant - Breach of statutory duty - Mines and Works Regulations - Strict liability for injury caused by breach - Employer can escape liability only where duty to comply with statutory provisions is cast upon employer by operation of law - Mines and Works Regulations; reg. 122[clxxi]¹.

MASTER AND SERVANT - Liability of master for injury to servant - Common law liability - Contributory negligence - Plaintiff exposing himself to risk of injury - Necessary to prove causal connection between risk and particular injury sustained - Contributory negligence not established.

DAMAGES - Measure of damages - Personal injuries - General principles - Mitigation of damages - Failure to undergo surgery - Onus on defendant to show plaintiff’s failure to undergo surgery unreasonable - Consequences and comparative value of surgery to be examined to ascertain whether failure unreasonable - Unreasonableness of refusal not established.

DAMAGES - Personal injuries - Particular pecuniary damage - Journey to Europe - Journey not proved reasonably necessary for purposes of medical treatment - Cost of journey not allowed.

DAMAGES - Personal injuries - Particular pecuniary damage - Medical expenses - Medical treatment in Europe - Treatment and cost of treatment reasonable - Cost of treatment allowed.

DAMAGES - Personal injuries - Particular pecuniary damages - Accommodation in Europe - Accommodation reasonably incidental to treatment wherever undertaken - Cost of accommodation allowed.

DAMAGES - Measure of damages - Personal injuries - Loss of earning capacity - Evidence of - Difficulty of quantifying loss of earning capacity without evidence upon which assessment can be made - Desirability of adducing evidence of work which plaintiff may do and remuneration therefore.

DAMAGES - Personal injuries - Particular awards of general damages - Traumatic amputation of forefoot - Arthrodesis on ankle joint necessary - Loss of 70% efficient use of leg - Initiation or aggravation of degenerative back condition - Continuing intermittent back pain and foot infection - Loss of ability to engage in active sports - Pre-injury employment permanently excluded - Future employment limited to areas where can stand or sit as comfort demands - Single male aged 29 (32 at trial) employed as heavy duty fitter - Award of K45,500 general damages (including K20,000 for reduced earning capacity and K500 for future replacement and repair of surgical boots).

The plaintiff a single man aged 29 (32 at trial) was employed by the defendant company as a heavy duty diesel fitter at power houses owned and operated by the defendant for the supply of electricity in connection with its mining operations. In the course of his employment, the plaintiff, who had been responsible for the maintenance of generating equipment for about a month prior to the accident, was required to check the water levels in certain radiators from a height of about eight feet from ground level, such radiators being situated at either end of an engine which was about six feet in length and cooled by a rotating fan encased by circular guards of meshed expanded metal situated between the engine and the radiator.

The plaintiff was shown how to check the radiator by his supervisor who mounted the engine by side steps, walked or scrambled along the engine to the radiator and dismounted by placing his foot upon the fan guard. Some ten days later the plaintiff (having mounted and dismounted the radiator in the manner adopted by his supervisor on a number of occasions), whilst dismounting placed his foot upon the expanded metal fan guard, which gave way, bringing his foot in contact with the rotating fan and causing a traumatic amputation of his forefoot. Although a ladder was available outside the area where the particular work was performed, its existence or useful purpose had never been demonstrated to the plaintiff.

After surgical treatment in Papua New Guinea, the plaintiff went to Brisbane for further treatment and some 3 months after the accident flew to Germany (his native country) for further treatment. Upon returning to Brisbane an arthrodesis was performed upon his ankle joint and later there developed lumbar back pain which was diagnosed as indicative of degenerative back disease either initiated or aggravated by his altered gait. It was estimated that the plaintiff who is required to wear a surgically constructed shoe had lost approximately 70% efficient use of his leg, and would continue to experience intermittent pain in the back and foot with episodes of infection. In addition he had lost the agility for active sports such as soccer, skiing and bushwalking; his pre-injury employment was permanently excluded and his future employment was limited to areas where he could stand or sit as comfort demanded (his educational background and mental ability precluding clerical work). Although some of the medical specialists had recommended a further surgical procedure known as a Syme amputation which would involve the amputation of the entire foot at a level of about a quarter of an inch above the ankle joint, and enable the better fitting of a prosthesis, the plaintiff refused to undergo this operation.

On the question of liability:

Held

(1) A system of work includes such matters as the layout of the job, the sequence in which the work is to be carried out and the provision of special warnings and notices:

Speed v. Thomas Swift and Company, Ltd. [1943] K.B. 557 at p. 563 followed.

(2) The employer has a duty to devise, institute and maintain a safe system of work, and this duty is personal to himself and cannot be delegated:

Wilsons & Clyde Coal Company, Ltd. v. English [1937] UKHL 2; [1938] A.C. 57 followed.

(3) The employer’s duty to provide a safe system of work imposes a responsibility upon him to co-ordinate his employee’s activities in any given operation, the methods in which those operations are to be executed and the use of particular equipment and machines. It also requires the provision of proper equipment and safety devices, the arrangement of their use and the giving of adequate warnings and instructions in relation to the operations in which an employee is engaged:

(4) An employer cannot escape his responsibility to provide a safe system of work because his men are experienced and might, if they were in the position of an employee, be able to lay down a reasonably safe system of work for themselves:

General Cleaning Contractors Ltd. v. Christmas [1953] A.C. 180 at p. 190 followed.

(5) But where an employer has handed over to an experienced and skilled employee the whole duty of providing a safe system of work, which by implication absolves the employer from liability if the employee is injured by his own failure properly to fulfil the delegated task, it must also be shown that the delegation was a reasonable one, that it was made with the employee’s concurrence and that it was accepted by him:

Witham v. Shire of Bright [1959] VicRp 99; [1959] V.R. 790 at p. 791 followed.

(6) In the circumstances, no system of work safe or otherwise, was devised to apply to the operations in which the plaintiff was employed, no instruction was given to carry out the work in any manner other than that adopted; no warning was given that it was dangerous and it was in the circumstances reasonable for the plaintiff to adopt the method used by his supervisor; nor was the plaintiff informed or aware of the existence of a ladder which might have been used, and these failures to instruct, warn and inform were breaches by the defendant of its duty to provide a safe system of work.

(7) In the circumstances, the defendant had not established a reasonable delegation of its duty to provide a safe system of work which had the concurrence and acceptance of the plaintiff.

(8) The operations in which the plaintiff was employed were operations to which the Mines and Works Regulations applied.

(9) The duty to observe the provisions of the Mines and Works Regulations being a strict one, proof of a breach renders the defendant liable for any injury caused as a result:

Galashiels Gas Co. Ltd. v. O’Donnell (or Millar) [1949] UKHL 2; [1949] A.C. 275 followed.

(10) However, an employee cannot rely upon a breach of a statutory duty if the responsibility for carrying out that duty was imposed upon him and his obligation was co-extensive with that of his employee:

Shedlezki v. Bronte Bakery Pty. Ltd. (1970) 92 W.N. (N.S.W.) 151 followed.

(11) Where, however, an employer seeks to escape liability for breach of statutory obligations on the ground that the duty of ensuring compliance with those obligations is upon the employer it must show that the duty so cast upon the employer is one cast by operation of law:

Ginty v. Belmont Building Supplies Ltd. [1959] 1 All E.R. 414, Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 C.L.R. 36 and Imperial Chemical Industries Ltd. v. Shatwell [1964] UKHL 2; [1964] 2 All E.R. 999 referred to.

(12) In the circumstances there were established breaches of each paragraph of reg. 122 of the Mines and Works Regulations.

(13) In the circumstances the defendant had failed to establish that it was the plaintiff’s duty to ensure compliance with the defendant’s statutory obligations.

(14) Accordingly, the defendant was liable to compensate for the damages suffered by the plaintiff.

On the question of contributory negligence:

(15) In the circumstances of the plaintiff’s employment and his experience in the particular operation he was undertaking it was reasonable for him to adopt the method he did and he was not failing in the duty he owed to himself in not seeking out a ladder or in not requiring the defendant to carry out its obligations:

Finch v. Telegraph Construction and Maintenance Co. Ltd. [1949] 1 All E.R. 452 referred to.

(16) In the circumstances no causal relationship being shown between the accident suffered and the risks run in approaching the particular operation (Semble the risk of contact with hot pipes or of being sucked into the radiator if loose clothing were worn, being more probable risks), the plaintiff could not be said to be exposing himself to the risk of injury caused by the collapse of the fan:

Fitzgerald v. Penn [1954] HCA 74; (1954) 91 C.L.R. 268 referred to.

(17) Accordingly the plaintiff was not guilty of contributory negligence.

On the question of damages:

(18) In order to establish that the plaintiff’s refusal to undergo further surgery constituted a failure to mitigate his damages it was necessary for the defendant to prove that the failure to undergo the surgery was unreasonable, (Steele v. Robert George and Company (1937) Limited [1942] A.C. 497 and Fishlock v. Plummer [1950] SAStRp 18; [1950] S.A.S.R. 176 at p. 180 followed); or that such surgery would improve the plaintiff’s condition; McAuley v. London Transport Executive [1957] 2 Lloyds Rep. 500 followed.

(19) In ascertaining whether the failure to undergo surgery is unreasonable it is necessary to consider the consequences of such surgery and the comparative value of relief from discomfort and the effect that the radical nature of the procedure might have.

(20) In the circumstances the defendant had failed to establish that the refusal to undergo further surgery was unreasonable.

(21) In the circumstances it was not reasonably necessary for the plaintiff to go to Germany for treatment (the particular type of treatment not being available only at that place) and a claim for K1000 representing fares to and from Germany should be disallowed:

Carnsew v. Bruhn [1966] S.A.S.R. 397 at p. 401 referred to.

(22) In the circumstances it was reasonably necessary for the plaintiff to undertake treatment whilst in Germany and the claim for K230 therefore was reasonable and should be allowed.

(23) Accommodation expenses being reasonably incidental to the treatment required by the plaintiff whether it was received in Australia or Germany (such treatment not being available in Papua New Guinea) a claim for K1410 for accommodation expenses whilst in Germany should be allowed.

(24) In a claim for damages for personal injuries where loss of earning capacity is alleged a plaintiff should prove what particular jobs are within his capacity and what remuneration such employment will return.

(25) In the absence of any evidence as to the plaintiff’s future earning capacity, and basing an estimate of loss of earning capacity upon level of wages and such like information within the general knowledge of the Court, damages for reduced earning capacity should be assessed at K20,000.

Allan v. Loadsman [1975] 2 N.S.W.L.R. 789 and Biggin & Co. Ltd. v. Permanite Ltd. [1951] 1 K.B. 422 at p. 438 referred to.

(26) Damages for pain and suffering, loss of enjoyment of life etc. should be assessed at K25,000 and future replacement and repair of surgical shoes at K500.

Trial

This was an action for damages for personal injuries suffered by the plaintiff in the course of his employment with the defendant company.

Counsel

J. A. Griffin, for the plaintiff.

J. C. Hartigan, for the defendant.

Cur. adv. vult.

23 June 1977

O’MEALLY J: Wilhelm Lubbering, the plaintiff in this action, seeks to recover damages from Bougainville Copper Limited for personal injuries sustained on 22nd October, 1974, in the course of his employment with that company. The incorporation of the defendant and the employment of the plaintiff as a heavy duty diesel fitter are admitted on the pleadings. It is also admitted that on 22nd October, 1974, the plaintiff was required to check oil and water in a certain radiator at the Ikara or Itikara Power House, which is owned and operated by the defendant.

The following facts have been established to my satisfaction.

The plaintiff is a single man who was born on 13th October, 1944, in Haselunne, Germany, and accordingly is now aged thirty-two years. At the age of fourteen, after eight years of primary schooling in which he displayed no outstanding scholastic ability, he entered upon an apprenticeship in agricultural machinery and equipment. This apprenticeship occupied him between 1959 and 1962. He has not undertaken any course of secondary schooling. Upon completing the apprenticeship he was employed for a time in connection with agricultural machinery and later, and until 1966, was employed by various employers in Germany engaged in construction work. His work was connected with the erection of bridges and this involved the maintenance of high rise cranes, large concrete mixers, dozers and compressors. Apart from maintenance he was also involved in construction. All of this employment could fairly be described as heavy work which required agility and mobility and the ability to lift heavy loads, climb formwork and other structures. He performed the tasks allotted to him with satisfaction to his employers and a reference from one, Oyckerhoff and Wilmann Pty. Limited, indicated that “he performed his given tasks with great interest and diligence.” At no stage in his life has he had what was called “a desk job”; his educational limitations and lack of scholastic achievement excluding him from that form of employment. In 1966 he entered the Marist Order of the Catholic Church and became a lay brother. Religious studies were required but he did not excel in that part of his new vocation, both because he could not cope and because studies produced headaches. However, he devoted his labours to the maintenance and repair of agricultural machinery used on a farm attached to the Marist institution at Meppen, where he was stationed before and after going to Bavaria for religious studies. In 1971 the Order sent him to Bougainville. He agreed that his main reason in entering the Order was to enable him to come to a developing country. In Bougainville he was placed in charge of a sawmill which was operated by the Mission there. In the course of that work he was required to maintain and repair equipment in the mill and to supervise logging activity. This work also demanded agility and mobility. Under his management the number of employees at the mill increased from twenty-five to forty-five, and an amount of his time was devoted to imparting knowledge to those with whom he worked. Whilst engaged at the mill he again displayed an inability to carry out office work and another was assigned to perform that task. For reasons which are not relevant to any matter I have to consider he left the Marist Order in 1973 and on 10th July that year commenced employment with the defendant. Between then and late 1974 he was employed on the maintenance of heavy machinery, mainly in the field. For four weeks he was engaged in work of a similar character on the concentractor which is used by the defendant to separate ore and chemicals from waste. That work involved climbing and lifting. In September, 1974, he was transferred to what might be called the power house section. It appears that electricity was supplied to the defendant only from generators owned and operated by itself. It was said that in all it used some sixty power houses, though the main one was at Panguna and is called the “Eleven Megawatt”. At Itikara the defendant had a power house which supplied electricity to its subcontractors. In this power house were three Caterpiller 399 generators each of which was about ten to fifteen feet in length, about four or five feet in width and the engines of which were about six feet in length. At one end of each engine was a radiator about eight feet high and between the radiators and the engines was a fan which had a diameter of approximately six feet, the object of which was to cool water in the radiator which in turn cooled the engine. The fans were encased by circular guards the circumferential surfaces of which were of meshed expanded metal. They were in two parts and bolted together at their top and bottom, that is at 360 degrees and 180 degrees, by angled brackets which were bolted to part of the radiator housing and to which the expanded metal was spot welded. At the point where the two parts met they were bolted together through the angled brackets and at various intervals about the circumference were other metal bars bolted to the housing. No part of the expanded metal was secured to the housing. The horizontal surface of the guards consisted of what appears to be a wire mesh. The three generators were housed in a building of corrugated iron opened at the end where the radiators were located. Here there was a wire fence about one foot distant from the radiators. There is no precise evidence of the height of the fence, though by reference to photographic exhibits and the evidence that the radiators stand eight feet from the concrete floor of the power house, one is able to conclude that the fence stood about six feet high from the ground. It was surmounted by three strands of barbed wire angled outwards from the fence. In between each of the three generators at a point adjacent to the radiators stood a forty-four gallon drum mounted on brackets which would restrict access to the front of the radiators from the engines. Adjacent to at least the No. 2 generator was a metal stand holding two steps, the second of which was about three feet above the ground. The steps were not in fixed position and could be moved. Again there is no evidence of the floor space occupied by those steps but, by reference to other evidence, I conclude they were about eighteen inches or two feet in length so that it would not be possible to place them in front of a radiator between it and the wire fence.

After commencing employment with the defendant on 10th July, 1973, and until September, 1974, the plaintiff was, as I have observed, exclusively employed in connection with heavy equipment and machinery. In September, 1974, he was transferred to the power house section and in that capacity he was responsible for the maintenance of generating equipment at various power houses. He was based at the Eleven Megawatt station, though from there went to different locations as required, including the station at Itikara.

I have observed that at Itikara were three generators. They were used in rotation but so that one ran for a fortnight and was then shut down for one week. Thus two were in constant use. There was some uncertainty as to time in the plaintiff’s mind, though I find that about ten days prior to 22nd October, 1974, the oil cooler on the No. 2 generator blew. The plaintiff was directed by his supervisor, Mr. King, to repair and replace it and when the task was complete to inform Mr. King so that he might come and a test run would be carried out. When later the test run and an inspection were being carried out Mr. King mounted the engine by the side steps and walked or scrambled along the engine and the fan casing to examine the contents of the radiator. He indicated to the plaintiff that he should join him and, by the same method which had been employed by Mr. King, the plaintiff mounted the engine and proceeded to the radiator. As a consequence of the cooler having blown there was still oil and water together in the radiator. Mr. King left the radiator by placing his foot upon the fan guard and the plaintiff did the same. The plaintiff was then given instructions by Mr. King to go to Itikara twice each day and fill the radiator with water so that the oil might overflow. On a number of occasions he mounted and dismounted the radiator in the manner adopted by Mr. King. He had seen Mr. King use only that method and on more than one occasion.

On 22nd October, 1974, the plaintiff went to the Itikara Power House. He mounted the engine and proceeded to the radiator as he had done before. As he was dismounting he placed his right foot on the expanded metal guard to the left of the bolted angle irons to which it was spot welded. The guard gave way and his foot came in contact with the rotating fan causing a traumatic amputation of his forefoot at about the level of Choparts joint. After having extricated himself he was later admitted to Arawa Hospital. At this stage I should observe that it was suggested to the plaintiff in cross-examination that the No. 2 generator was to be shut down on 22nd October and there was, therefore, no reason for his inspecting the contents of the radiator. However, it is admitted on the pleadings that he was required to check the oil and water in the radiator. There was also a difference in the evidence as to whether the plaintiff came down on his own or with assistance. A consideration of each of these two matters does not materially affect any issue which I am to determine; at most they could go only to credit, but no reliance was placed upon them by counsel for the defendant in his submissions to me.

The plaintiff in seeking to establish liability in the defendant relies upon breaches by it of its common law duty to him as one of its employees. He also relies upon certain breaches of statutory duty. The pleadings were amended at the beginning of the case to allege breaches of paragraphs (c), (d), (i), (g) and (e) of s. 29 and paragraphs (a) and (b) of s. 30, each of the Industrial Safety, Health and Welfare Act 1961. At the conclusion of the defendant’s case the plaintiff again amended his pleadings by simply alleging breaches of ss. 29 and 30 of that Act without specifying breaches of particular paragraphs. No objection was taken on that account by counsel for the defendant. The plaintiff also alleged breaches of reg. 122 of the Mines and Works Regulations. The defendant denies that it was guilty of negligence and says the plaintiff was guilty of contributory negligence.

The plaintiff in his statement of claim alleges in a number of paragraphs acts and omissions which are said to constitute breaches of its common law duty to him. Whilst particular matters are alleged what in substance the plaintiff says is that the defendant failed to provide a safe system of work, failed to warn him of the dangers to which he was exposed and failed to provide suitable equipment for the carrying out of his employment. He also relies upon the statutory breaches referred to as being evidence of common law negligence. However, whether there were such statutory breaches may conveniently be considered separately.

A system of work includes such matters as the layout of the job, the sequence in which the work is to be carried out and the provision of special warnings and notices: Speed v. Thomas Swift and Company, Limited[clxxii]². An employer’s duty to provide a safe system of work imposes a responsibility upon him to co-ordinate his employees’ activities in any given operation, the methods in which those operations are to be executed and the use of particular equipment and machines. It also requires the provision of proper equipment and safety devices, the arrangement of their use and the giving of adequate warnings and instructions in relation to the operations in which an employee is engaged. A duty is imposed upon an employer to devise, institute and maintain a safe system of work. Thus an employer must plan and supervise a method of carrying out particular operations. The duty imposed upon an employer is personal to himself and cannot be delegated: Wilsons & Clyde Coal Company, Limited v. English[clxxiii]³. A distinction was made in Witham v. Shire of Bright[clxxiv]⁴ in relation to the nature of that non-delegable duty. It was there said that where an employer has handed over to a skilled and experienced employee the whole duty of providing a safe system of work the employee by implication absolves the employer from liability if the employee is injured by reason of his own failure properly to fulfil the delegated task. But it must also be shown that the delegation was a reasonable one, that it was made with the employee’s concurrence and that it was accepted by him. Some reservation on the validity of this principle has been expressed by text writers: see Glass & McHugh The Liability of Employers 1966 pp. 261-262. But, accepting its validity, an onus is still cast upon a defendant to establish reasonableness, concurrence and acceptance. An employer cannot escape his responsibility to provide a safe system of work because his men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work for themselves: General Cleaning Contractors Ltd. v. Christmas[clxxv]⁵. However, in some cases the experience and skill of a particular employee who chooses to perform a task by an unsafe method when an alternative safe method is available will operate to relieve his employer from liability for injury sustained as a consequence of his choosing a dangerous method: O’Connor v. Commissioner for Government Transport[clxxvi]⁶.

In submitting in this case that the defendant failed to provide a safe system of work, Mr. Griffin, counsel for the plaintiff, points to the total lack of any instruction given to the plaintiff on the method to be adopted by him in checking the contents of the radiator. The plaintiff asserts that the only method of performing the task of which he was aware was that previously adopted by Mr. King and no instruction was given by Mr. King or by anybody else in the defendant’s employ that any other method was to be adopted. On the occasions when Mr. King mounted the engine to inspect the radiator the generator was in use and the situation was the same on each occasion the plaintiff made an inspection.

The plaintiff also relies upon the failure of the defendant to provide a ladder to enable the inspection and filling to be carried out which had to be done while the engine was running. I have already found it would have been impossible to place the moveable steps in front of the radiator because of the close proximity of the exterior wire fence and, by reason of other equipment including the forty-four gallon drums placed between the generators, it would have been impracticable to place them at the side. At this stage I should mention that there was a difference in the evidence between the plaintiff and Mr. Nelson, who was called by the defendant, as to the distance between the fence and the radiator but it will be obvious from what I have said above that on this aspect I prefer the evidence of the plaintiff, Mr. Nelson never having measured it.

Mr. Hartigan, counsel for the defendant, in his submissions to me said the defendant denied that Mr. King had ever been on the engine before and in particular said it denied that any inspection had been carried out by him. Mr. King was not called as a witness; he was apparently unwilling to co-operate either with the plaintiff or the defendant, but the suggestion that Mr. King had not done what the plaintiff said he had done was not put to him in cross-examination. In this respect I accept the plaintiff. In addition Mr. Hartigan said that if, in fact, Mr. King did instruct the plaintiff to inspect and fill the radiator in the manner adopted by the plaintiff it was beyond Mr. King’s authority as an employee of the defendant. It is sufficient to observe that Mr. King was the plaintiff’s supervisor; it was within his authority and capacity as an officer of the defendant not only to tell the plaintiff what to do, but how to do it.

The defendant says that a safe system of work was devised, instituted and maintained and that it was entitled to rely upon the plaintiff’s own skill and experience as being sufficient to qualify him to perform the task of checking oil and water in the radiator, that is, that the plaintiff ought to be in the same situation as was the plaintiff in O’Connor v. Commissioner for Government Transport[clxxvii]⁷. It is implicit in this submission that the defendant expected the plaintiff himself to devise the system of work to be followed in this operation.

It was also argued by Mr. Hartigan that there was in operation a safe system of work from which the plaintiff departed, that this departure was entirely as a result of the plaintiff’s own choice and as a result the defendant is not responsible for any injury suffered by the plaintiff by reason of his departing from the system laid down. The evidence of the particular system adopted by the defendant came from two National witnesses and from Mr. Nelson to whom reference has been made. In essence what was established was that a ladder was provided by the defendant to enable the contents of the fuel tank in which diesel fuel for the operation of the generators was contained to be checked by operators whose responsibility it was to do so. The operators were also responsible for checking from time to time the water level in the radiators and for that purpose used the same ladder by placing it outside the wire fence and resting it above the barbed wire onto the radiators. The ladder was usually kept near the fuel tank which as one looks towards the generators from outside is located to their left. There is no direct evidence that the ladder was available for use on 22nd October, 1974, though the evidence discloses it was there before and after the plaintiff’s injury and I would infer it was outside the power house in the vicinity of the fuel tank on that day. However, that evidence, in my view, really only establishes that a system of work was devised for the operators.

It has been established to my satisfaction that no system of work, safe or otherwise, was devised to apply to the operations in which the plaintiff was employed. It is true he was a qualified tradesman, but his experience in the maintenance of generators was limited to his work in the employ of the defendant and that experience was of less than two months’ duration. I accept he was given no instruction to carry out the work in any manner other than that which he adopted. I accept he was given no warning that it was dangerous and my view is that in the circumstances it was reasonable for him to adopt the method used by Mr. King. He had not seen operators use the ladder nor was he informed or aware of its presence so that he might have used it to inspect and fill the radiator and, though there is evidence he had seen an operator checking the water level in a radiator on one occasion there is no evidence of the method employed. The failure to instruct, warn and inform him were each breaches by the defendant of its duty to provide a safe system of work. It is not sufficient for the defendant to rely upon the plaintiff’s experience and skill as a heavy duty diesel fitter to relieve it of its duty to provide for him in the particular operations he was required to carry out a safe system of work. Nor has the defendant established a reasonable delegation of that duty which had the concurrence and acceptance of the plaintiff. (See Witham v. Shire of Bright[clxxviii]⁸.)

In determining the safety of the system of work it is necessary to consider also the provision of proper equipment to carry out the work. While the plaintiff alleges the failure to warn him of the dangers to which he was exposed and the failure to provide proper equipment as separate heads of common law liability they are each an ingredient of his allegation that the system of work was unsafe. Accordingly while I have concluded upon the matters I have so far considered (which include the failure to warn) that no safe system was provided it is convenient to deal with the third of his allegations of common law negligence under this heading because it is a necessary concomitant of it. The plaintiff alleges the defendant failed to provide him with a ladder to inspect the radiator, failed to provide a glass fluid level so as to obviate the necessity of climbing up to inspect the radiator and failed to provide proper and adequate equipment for the work. Insofar as the first of these allegations concerns a moveable ladder it has been already dealt with. In relation to the provision of a level the plaintiff in evidence said that though one had been installed after his injury it would not have affected the necessity of his having to get to the top of the radiator, and I assume this was because a hose had to be placed into it to flush out the oil. However, the evidence demonstrates that at other power houses owned and operated by the defendant radiators were installed and fixed to these radiators are perpendicular ladders. There is no more evidence in relation to them than that, but though Mr. Nelson was reluctant to admit it in frank terms it seems to me that there was, and is, nothing to prevent fixed metal ladders being placed upon, or bracketed to, the radiators in the Itikara Power House to enable inspections to be carried out. The provision of such a ladder could reasonably and easily have been made and the failure to provide one was a failure to provide safe equipment rendering the system of work unsafe.

The plaintiff relies also upon breaches of statutory duty which have earlier been referred to. Though in the pleadings as they now stand he alleges in broad terms breaches of ss. 29 and 30 of the Industrial Safety, Health and Welfare Act 1961 he could properly allege only those breaches contained in the first amendment to his statement of claim. The provisions of this Act apply to factories which for the purposes of the Act include “any building or place in which employees are engaged directly or indirectly ... in the generation of power”. However, its provisions do not apply to or in relation to a mine, matter or thing to which the provisions of the Mines and Works Regulation Act apply. Thus the plaintiff cannot rely upon breaches both of the Industrial Safety, Health and Welfare Act 1961 and of reg. 122 of the Mines and Works Regulations.

When the plaintiff was permitted to amend his statement of claim for the second time leave was also granted to him to re-open his case and call evidence in relation to the application of the Mines and Works Regulations. The plaintiff gave evidence that power generated at Itikara was supplied to the defendant’s subcontractors including two companies described simply as Hastings Deerings and Morgan Equipment. Hastings Deerings used power supplied to it in the repair and overhauling of mining equipment owned by the defendant and used by it in its mining operations. Morgan Equipment used power in repairing mine mainhole trucks. Power was also supplied to caterers who catered at camps for single employees of the defendant. The Mines and Works Regulation Act 1935, and therefore the Regulations made thereunder, apply to every mine under whatsoever tenure held and to every works operating in connection with mining or in the winning or the treatment of minerals. The defendant owns and operates a copper mine. The repair of its equipment used in mining is work in connection with mining and the Mines and Works Regulations therefore apply to its operations at Itikara.

Regulation 122 of those Regulations is in the following terms:

“122(1) All exposed machinery which when in motion may be dangerous to any person shall be securely fenced off.

(2) All electrical machinery and conductors shall be so placed and fenced, or guarded, that any person cannot be injured by inadvertent contact with any part of the machinery or conductors.

(3) An effective guard, which shall not be removed while the machinery is in motion, shall be provided for every part of the machinery and conductors which, without the guard may be a source of danger to any person.”

There is no doubt that a breach of this regulation gives rise to a private right of action: O’Connor v. S.P. Bray Limited[clxxix]⁹; Australian Iron and Steel Limited v. Ryan[clxxx]¹⁰. Apart from its duties at common law there is imposed upon the defendant by this regulation specific requirements to protect its employees. The requirements imposed by this regulation are not subject to a qualification to observe them “insofar as is reasonably practicable” or to other qualifications which sometimes appear in Acts or Regulations imposing statutory duties. Accordingly the duty to observe its provisions is a strict one and once a breach has been established liability for injury caused as a result attaches to the defendant: Galashiels Gas Co. Ltd. v. O’Donnell (or Millar)[clxxxi]¹¹. However, a plaintiff cannot rely upon a breach of a statutory duty if the responsibility for carrying out that duty was imposed upon him and his obligation is co-extensive with that of his employer: Shedlezki v. Bronte Bakery Pty. Ltd.[clxxxii]¹².

The duties imposed by reg. 122 are designed in part to ensure that employees are kept out, not that the machine is kept in. It is not necessary successfully to rely upon these provisions for the plaintiff to establish how it was that the expanded metal constituting the fan guard gave way. Once it is proved that it gave way and he was injured as a result the defendant is liable. It is obvious that machinery was not securely guarded when its guard gave way. It is obvious that the electrical machinery was not fenced and guarded so that the plaintiff could not be injured by inadvertent contact with any part of the machinery, namely the fan blade, when its guard gave way. And it is also obvious that without a guard the fan blade would be a source of danger when in motion so that its guard which gave way cannot be said to have been effective. The plaintiff has established to my satisfaction breaches of each paragraph of reg. 122.

But it is argued on behalf of the defendant that the plaintiff is not entitled to rely upon any breach of these provisions because he was the person charged with the responsibility on behalf of the defendant to ensure they were carried out. In support of this submission Mr. Hartigan relies upon what he says are admissions obtained by him in cross-examination of the plaintiff. At p. 66A of the transcript appears the following of the plaintiff’s cross-examination:

“MR. HARTIGAN — Apart from the adjustment of tappets and possibly oil changes, what else did you do on the visits to Itikara power station? ... Mainly look around the machines and make sure nothing leaking.

And that everything was in a safe condition, correct? ... If we take the safe condition means that things were there put on by the manufacturer, yes.

It was your job as the expatriate heavy duty diesel fitter visiting these branches to ensure that everything at these branches was in a safe condition, was it not? ...

HIS HONOUR — Do you mean safe to operate or safe from the point of view of employment?

MR. HARTIGAN (to witness) — If it involved moving parts, to ensure safely guarded? ... Yes, if they were manufactured but not anything that I would look for something that I think the manufacturer should have put on because before anything can be commissioned the Mine Warden comes in and inspects it. The company will provide in this case a Caterpiller does everything before the company or whoever passes the engine can say that is what we recommend or that is the way they should be put up, and after that you will have no trouble with operating it.

I am suggesting you will look at the various guards even though installed by the manufacturer to ensure in good condition, would you not? ... That they were not taken off, yes.

That was your job, was it not? ... That would come automatically if you see something missing then you replace it.”

Mr. Hartigan also relies upon answers given by Mr. Nelson during his cross-examination by Mr. Griffin. At p. 109 of the transcript is the following:

“MR. GRIFFIN — Whose responsibility was it within the company to check that type of casing at the Itikara power house? ... It would have been the mechanic servicing the units.

In this case then you say, taking the situation with Mr. Lubbering, who was working on the units, you say, it would have been his responsibility? ... Yes.

HIS HONOUR — The mechanics are obliged, you say, to check the guards of the machines amongst other things, is that right? ... Yes.

MR. GRIFFIN — Have you ever checked that type of joint yourself? ... Apart from checking bolts are tight, that is the only check we make.”

Now it is important to remember that the defendant is not a family company. It is a consortium of international corporations as is shown by Exhibit “6” and its operations, as is well known, are responsible for a significant amount of the development of the whole island of Bougainville over a large amount of which those operations are conducted. In Lennard’s Carrying Company, Limited v. Asiatic Petroleum Company, Limited[clxxxiii]¹³ Viscount Haldane said:

“A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation.”

The evidence does not persuade me that the plaintiff, as a heavy duty diesel fitter, was the mind and will of the defendant to ensure compliance with its statutory obligations. Nor do I conclude, as Mr. Hartigan invites me to, that the plaintiff admitted his was the sole responsibility to ensure guards were securely placed and provided. The view I take of his evidence is that he accepted he had a general duty in common with all employees, patriate or expatriate, to ensure to the level of his skill and experience that nothing obviously unsafe would be done; if he observed a fellow employee conducting himself in such a manner he would, in common with all employees, accept the responsibility to draw to that other employee’s attention the folly of so conducting himself; if he noticed something was unsafe about the machinery and equipment he would, in common with all employees, set about making or having it made safe. It was significant also that the defendant led no evidence to prove that the responsibility of ensuring compliance with statutory provisions was the plaintiff’s. The evidence of Mr. Nelson quoted above was perhaps an unexpected but pleasant surprise to counsel for the defendant and, as always, alert to the interests of his client, not improperly, he sought to rely upon it to the defendant’s advantage. But Mr. Nelson did not, in my view, prove that the responsibility of ensuring compliance with statutory obligations fell upon people employed in the category of the plaintiff. He qualified the first expression of his view of the responsibility by limiting it to one of simply checking that bolts were tight. He did not say that it was the responsibility of an employee in the position of the plaintiff to ensure that guards were secure and effective, nor did he say that he ever exercised that responsibility. The plaintiff’s contract of employment with the defendant is in evidence. There is nothing contained in that contract which could or did impose upon the plaintiff any obligation in or of the nature now contended for. In my view where a defendant seeks to escape liability for breaches of statutory obligations on the ground that the duty of ensuring compliance with those obligations is upon a plaintiff it must show that the duty so cast upon the plaintiff is one cast by operation of law (Ginty v. Belmont Building Supplies Ltd.[clxxxiv]¹⁴; Darling Island Stevedoring and Lighterage Co. Ltd. v. Long[clxxxv]¹⁵; Imperial Chemical Industries Ltd. v. Shatwell[clxxxvi]¹⁶.) A defendant cannot avoid liability for breach of its statutory obligations merely by proving (though it did not do so here) that an instruction was given to a plaintiff to carry them out. The defendant has failed to satisfy me that it was the plaintiff’s duty to ensure compliance with its statutory obligations.

It is clear that the plaintiff has satisfied me that the operations in which he was employed were operations to which the Mines and Works Regulations applied. Accordingly, he cannot rely upon breaches of the Industrial Safety, Health and Welfare Act 1961.

Negligence on the part of the defendant has been established. However, the defendant says that the plaintiff was guilty of contributory negligence. It was argued for the defendant that the entire method adopted by the plaintiff was fraught with danger; in conducting himself as he did he failed to take reasonable care for his own safety and unnecessarily exposed himself to the risk of injury. In essence two matters fall to be considered in determining whether the plaintiff was guilty of contributory negligence.

The first of these concerns the use of the ladder which was kept for use by the operators in checking the contents of the diesel fuel tank and the radiators. The same considerations apply which have already been dealt with in relation to the safety of the system of work and the provision of suitable equipment. But the question arises whether there was, apart from the obligation of the defendant to make the presence of the ladder known to the plaintiff, an obligation on the plaintiff to seek one out and use it. Mr. Nelson has been employed in the same category as the plaintiff both before and after the plaintiff was injured. In the course of his evidence he said that if he were required to inspect the contents of the radiator he would approach it from its front. On further questioning he said he would adopt that approach if the engine were running, but if it were not running there would be no danger in approaching the radiator by climbing onto the engine and walking to its front. He has never made an inspection from the front in the manner which is said ought to be adopted by the plaintiff, nor is there any evidence that he has ever made an inspection by means other than used by the plaintiff. It does seem, however, that he has been onto the engine when it was not operating. In the circumstances of the plaintiff’s employment and his experience in the particular operation he was then undertaking it was, as I have previously observed, reasonable for him to adopt the method he did and I do not think he was failing in the duty he owed to himself in not seeking out a ladder or in not requiring the defendant to carry out its obligations. (See Finch v. Telegraph construction and Maintenance Co. Ltd.[clxxxvii]¹⁷.)

The substantial argument of the defendant is that the method of inspection adopted by the plaintiff was inherently dangerous. It relies upon the fact that safety lectures were constantly held under its auspices and ought to have been attended by the plaintiff. Armed with knowledge from those lectures, and in any event, he ought to have known, so it is argued, that he was exposing himself to the risk of injury when he climbed over an operating engine to inspect the radiator. But what was the risk of injury to which he was exposing himself? It is amply demonstrated that in close proximity to the radiator was a number of coolant and exhaust pipes which became extremely hot (1200 degrees fahrenheit was mentioned) when the generator was in use. The fan rotated at sufficient speed to create significant suction. Mr. Nelson was asked why it was he would approach the radiator from the front. He replied that on the front of the engine was the fan housing a set of four “v” belts and if one did slip, the suction of the fan would make it quite easy to be sucked into the radiator if one had a loose shirt. Mr. Achterberg, who gave evidence for the plaintiff, conceded to Mr. Hartigan in cross-examination that he also would have approached the radiator from its front. The reason compelling him to so approach it was that by any other means one would be liable to come into contact with either the coolant or exhaust pipes and care would need to be exercised by anyone using the method used by the plaintiff to ensure that no such contact were made. It seems, therefore, that the plaintiff was exposing himself to a risk of injury when he approached the radiator as he did. But the risk was one of injury from contact with extremely hot pipes or of being sucked into the radiator if he were wearing a loose shirt. In relation to safety lectures the evidence only proves that it was the defendant’s policy to conduct them. It was not proved that any lecture was given to or attended by the plaintiff in relation to the matters now relied upon by the defendant.

If a plaintiff fails to take reasonable care for his own safety the defendant cannot rely upon that failure unless a causal connection between the plaintiff’s conduct and his injury is shown. The causal connection must exist not merely between the injury and the plaintiff’s negligent act, but between the injury and that aspect of his conduct which is negligent. If the occurrence is unrelated to the rule of prudence he violated his negligence cannot be held against him. See Fleming Law of Torts, 4th edn., p. 226, and Fitzgerald v. Penn[clxxxviii]¹⁸. Had the plaintiff in this case suffered burning injuries as a result of contact with hot pipes or had he been sucked into the radiator while wearing loose clothing the defendant could successfully have relied upon his conduct to defend any claim brought by him for damages for such injuries. But no causal relationship has been shown between the accident he suffered and the risks he ran in approaching the radiator as he did. He was not thereby exposing himself to the risk of injury caused by the collapse of the fan guard and accordingly contributory negligence has not been established.

It would be proper to add here that there is an overlapping of matters which form the bases of submissions that the defendant was guilty of negligence and that the plaintiff was guilty of contributory negligence. I have not in this judgment referred to them all successively though I have, in reaching the conclusions I have expressed, considered each such matter in the determination of each issue.

The question now arises of the amount of damages to which the plaintiff is entitled. The following facts were proved to my satisfaction.

Following his injury the plaintiff was admitted to the Arawa Hospital where he remained an in-patient for sixteen days. While there he underwent an operation by Dr. Harrison, though the evidence does not disclose its nature. He was in pain and lost weight. He was then transferred to a hospital at Brisbane and was an in-patient for three days under the care of Dr. Fergus Wilson. Infection had set in and was treated and he was discharged on crutches. On 17th December, 1974, he left for Germany and remained in Germany until 2nd February, 1975. Whilst he was in Germany he consulted Professor Kuhn who was said to be an orthopaedic specialist. Upon returning to Brisbane Dr. Wilson performed an arthrodesis of his ankle joint. Later he developed lumbar back pain and in April, 1975, he returned to employment with the defendant on Bougainville in its spare parts section. By this time he had been supplied with and was wearing a surgical shoe. In May of 1975 he was able to abandon crutches, though for a period of time thereafter he moved about with the aid of one crutch or a stick. He had difficulty with the clerical aspects of that work and those parts which demanded mobility. He continued with this work until 7th October, 1975, when he did a ten day course in maintenance of office machinery and then changed sections so he was now employed in maintaining office equipment such as type-writers, photo-copying machines and the like. For a while he had assistance in that work but nevertheless encountered difficulties in mobility and in carrying certain objects such as type-writers. During this period he also had difficulty with his footwear which caused discomfort and pain by reason of it being ill fitting. He again went to Brisbane to have new boots made and returned to Bougainville in July, 1976. Following this return he lost the assistance previously afforded to him so that the difficulties he had in the work he was then doing increased. He was not satisfied with the footwear obtained in Brisbane and on a number of occasions complained to Mr. Wellington, an officer in the defendant’s personnel department, initially requesting, then demanding, that something be done to obtain for him more comfortable and better fitting footwear. During this period also he was having not infrequent absences from work which he said were occasioned by painful back symptoms. Mr. Wellington then offered to make arrangements for the plaintiff to go to Melbourne at the defendant’s expense, undergo a course of retraining and consult Dr. Cullen, a leading orthopaedic specialist, with a view to ascertaining whether any improvement could be effected in the plaintiff’s condition. He was to remain on full pay and accommodation would be provided. The course of retraining did not eventuate though, having seen Dr. Cullen, a new boot was prescribed and provided. He returned again to Bougainville, still not satisfied with the vocational and medical treatment proffered. He continued to complain to Mr. Wellington and on 10th December, 1976, he was given one month’s notice. Thereupon he ceased work. He has not worked since. He returned to Brisbane, attended for a fortnight at the Rehabilitation Centre and registered for employment with the Commonwealth Employment Service. He currently lives in Brisbane though upon the conclusion of this case intends to return to Germany.

Since the accident he has complained of phantom pains in that part of his foot which has been amputated as well as hypersensitivity in the remaining part of the foot. No prognosis has been expressed in relation to the phantom pains. Following the arthrodesis of his ankle joint back pain developed and radiographs show narrowing of the L4-5 disc space which is indicative of degenerative back disease. He complains of pain radiating caudally from the lumbar area circumferentially about his left thigh and cephalically over his scalp to his eyes. This pain distribution does not follow any dermatome and it would be difficult therefore to find it is organically based. However, his back was previously asymptomatic and his altered gait would undoubtedly be responsible for initiating or aggravating the degenerative condition. Clinical tests exclude nerve root compression. He also complains of aches and pains in his abdomen, but there is no mention of these in any medical report which has been tendered and again it is difficult to appreciate how they could be organically related to his injury. He has developed a phobia of moving machinery, a resentment towards the defendant and an apprehension about his future working ability. The phobia can be treated and it is expected by Dr. Proctor that the resentment and apprehension will subside with the conclusion of litigation.

A number of doctors whom he has seen has suggested a further surgical procedure known as a Syme amputation. This operation involves the removal of all remaining tarsal bones, the calcaneus, talus and each malleolus so that the entire foot is removed at a level about one-quarter of an inch above the ankle joint. The skin and tissues of the heel are rotated forwards and the patient then walks upon a cushioned pad of fat. It seems a prosthesis can more easily be fitted following a Syme amputation than following a Chopart’s amputation. The plaintiff has declined to undergo this surgery and intends not to undergo it. Mr. Hartigan argues that this refusal by him is unreasonable and constitutes a failure to mitigate his damages. The onus of proving that the failure to undergo surgery is unreasonable lies upon the defendant: Steele v. Robert George and Company (1957) Limited[clxxxix]¹⁹; Fishlock v. Plummer[cxc]²⁰ and cases there cited. It is of importance therefore to ascertain what results this operation might bring about. Initially Dr. Wilson thought it desirable to assess the effect of the ankle arthrodesis in order to ascertain whether a satisfactory prosthesis could be fitted. He thought that if a functional prosthesis could not be fitted consideration would need to be given to performing a Syme amputation. In December, 1975, his opinion was that the prosthesis which had then been fitted was moderately satisfactory, though in June, 1976, he was still considering the possibility of a Syme amputation. In March of 1976 he said the plaintiff was “now walking on a peg leg arrangement and this is sufficing, although there could be some future prospect of his having this operation”. There is nothing in the reports of Dr. Wilson which indicate that the plaintiff ought to undergo further surgery of this type. Dr. Hopkins, the Director of Medical Services in the Australian Department of Social Security at Taringa expressed the view in April, 1977, that the plaintiff ought to be fitted with a Chopart’s prosthesis. He made no mention of a Syme operation. The plaintiff was seen in Melbourne on the defendant’s behalf by Dr. Reid, a specialist in artificial limb fitting. His opinion was that the plaintiff should undergo a Syme amputation to more easily facilitate the fitting of a prosthesis. Dr. Cullen concurred. But neither of these two doctors expressed any opinion, apart from ease of prosthetic fitting, why he should undergo it. The plaintiff gave evidence that he did not intend to have the operation because he had been advised against it by Professor Kuhn in Germany. Dr. Martin, who has not examined the plaintiff, gave evidence before me of the procedures involved in this surgery. It was his opinion that the operation if carried out would prevent the aggravation of his degenerative back condition. But no other doctor has expressed that opinion and those who favour the operation seem to do so for reasons connected with the fitting of a prosthesis. Dr. Cullen’s view is that whilst it may reduce some of the strain upon his back it is unlikely a complete cure could be effected. Degenerative back disease is progressive; the process of degeneration is irreversible. I am not persuaded that the operation if carried out would bring about any improvement in the plaintiff’s physical condition or capacity; all it would do is facilitate the fitting of a prosthesis and relieve him of some discomfort. In considering whether he ought to undergo this surgery regard must be had to the comparative value of relief from discomfort and the effect the radical nature of the procedure suggested would have upon him. It is probable he would still be left, at least for a time, with phantom pains in the amputated foot and the psychological trauma would probably be increased. Those opinions I express as a jury. Weighing these considerations in the balance, continued discomfort would be preferable to the consequences of the radical surgery proposed. The defendant has failed to establish either that the operation suggested would improve the plaintiff’s condition or that the plaintiff’s failure to undergo it is unreasonable. See McAuley v. London Transport Executive[cxci]²¹.

Before the accident the plaintiff played soccer, went bushwalking, enjoyed dancing and in Germany, from time to time, went snow skiing. It could not be said he was expert in any one of these fields though they formed a significant part of his relaxation. In Germany he played soccer in local competitions and it was his main form of recreation. He played soccer while he was at the Mission’s sawmill, though not when employed by the defendant because there was no time. Since his accident he has attended dances though has been unable to dance because of the amputation and he feels embarrassed by it. Because of the nature of his injury most forms of sport and bushwalking and dancing are beyond him. He says he does not now drive a motor car because he cannot properly manage the foot controls. However, it is well known that cars can be adapted for use by injured people and it is not uncommon to see a paraplegic driving a motor vehicle which has been modified to enable him to get about.

There is little evidence which might assist me in relation to the plaintiff’s future pain and suffering. The evidence does not disclose for what period of time his phantom pains will persist nor whether those pains which I have found difficult to find are organic in origin will continue. Experience shows that such pains subside with the passage of time and in the absence of any prognostic evidence it cannot be concluded they will be permanent. Dr. Cullen in his report of 30th November, 1976, expresses the opinion that the only forms of treatment which can reasonably be anticipated are prosthetic care and intermittent treatment with analgesics, anti-inflamatory agents, rest and perhaps physiotherapy for future back pain. It seems safe to conclude, therefore, that the plaintiff will permanently continue to experience intermittent pain in the back and foot with episodes of infection.

Dr. Cullen expresses the view he has lost 60% of the effective use of his leg. Dr. Wilson’s view is that there is a 75% loss of its effective use. I have not had the benefit of observing either doctor in the witness box and it is difficult, therefore, to prefer one opinion against the other. I do not believe it would be unreasonable to accept a percentage loss in the middle of these two figures. The assessment of the loss would be of greater significance in a claim for a lump sum under the Worker’s Compensation Act than in one for damages. However, the percentage loss illustrates that the plaintiff has suffered a significant interference to his mobility and agility.

The plaintiff has suffered a severe injury which has left him with permanent pain and restriction. His enjoyment of life and of its amenities has been substantially interfered with. Doing the best I can, by way of general damages for such loss, I would award him the sum of K25,000.00.

I have not been informed of the amount of medical and hospital expenses which have already been paid by the defendant under the provisions of the Worker’s Compensation Act. It has been agreed between the parties that no deduction will be made from the verdict in relation to these expenses. However, upon proof of payment it was agreed that the plaintiff is entitled to the sum of K200.00 for rehabilitation treatment and K50.00 for taxi fares to and from the Rehabilitation Unit in Brisbane. The plaintiff sought treatment in Germany and for this paid the equivalent of K230.00. This figure is disputed, though, in my view, it was reasonable to seek treatment and the cost also is reasonable and it shall be allowed. The plaintiff is entitled, therefore, to an additional sum of K480.00 for medical and associated expenses. Though there is evidence that future medical treatment will be required there is no basis disclosed upon which any assessment of its cost can reasonably be made and no allowance will be made under this head.

A claim is also made for the cost of surgical shoes to be supplied in the future. The evidence is that to date the defendant has paid for these shoes. The first pair were supplied at a cost of $A104.86 and the second at $A86.00. It was said by the plaintiff that he would need a new shoe every three weeks if he wore it eight hours each day. In this respect I believe the plaintiff was exaggerating particularly as he later conceded a new one would be required only every six to eight weeks if he used shoes at the rate he was using them recently and also because the evidence is that since his accident he has had them replaced only on about three occasions. However, undoubtedly he would need to repair or replace them from time to time and I am prepared to allow a sum of K500.00 for the future purchase and repair of surgical footwear.

A claim is made for the cost of fares of his return journey to Germany in the sum of K1,000.00. The evidence does not persuade me that it was reasonably necessary for him to go to Germany for the purpose of treatment and this claim is disallowed. See Carnsew v. Bruhn[cxcii]²². In cases where it is established that treatment of a particular type is available only at a particular place and such treatment is reasonably necessary then the cost of fares to that place may be allowed to a plaintiff who has received or intends to receive treatment of that type.

He also claims K1,410.00 as accommodation expenses in Germany. This is disputed by the defendant. However, while he was in Brisbane the defendant was meeting the cost of his accommodation and had he not gone to Germany would still have done so. He could not during this period of time have returned to Bougainville and in my view accommodation was reasonably incidental to his treatment whether he received it in Brisbane or Osterbrock. The figure here claimed is not extravagant by comparison with hotel charges in Papua New Guinea or Australia and if anything is less. Accordingly, he is entitled to have the sum of K1,410.00 which he has already paid included in his verdict.

It has been agreed that the plaintiff was entitled under his contract of service with the defendant to the sum of K192.00 being the cost of his airfare to Melbourne upon termination of his employment. I cannot find any such clause in the contract which is in evidence, though his contract was renewed and it may have been provided for in the later one. Because it was agreed he will be allowed that amount.

The plaintiff said that had he not been injured he would have gone onto staff in September, 1974. Because of his injury this change in his status did not come about until 1st November, 1975. Two figures were agreed as being losses he sustained but subject to his promotion. To the date of trial had he remained in the employ of the defendant as a heavy duty fitter, uninjured, he would have earned K7,500.00 more than he did. Had he remained uninjured but been promoted on 1st November, 1974, the date conceded by the defendant when the change would otherwise have occurred, he would have earned a further K10,000.00. These are each net figures. The defendant concedes he would, in the ordinary course of events, have been promoted on 1st November, 1974, and it is proper that he should have the second of these sums allowed to him. The plaintiff is entitled to an amount of K10,000.00 being loss of wages to date of trial.

The last matter remaining to be considered is the plaintiff’s loss of earning capacity. Though I find it somewhat puzzling in view of the agreed figures referred to in the above paragraph, the situation is that as from 1st December, 1976, when he was dismissed, a heavy duty fitter was earning and still earns for a fifty-four hour week, including overtime, K11,500.00 net per annum or K221.20 net per week. A technician in the Technical Services Department, that is a person employed in the same category as the plaintiff was when dismissed, earns a base salary of K9,970.00 net per annum, but with allowances and overtime his actual salary is K12,017.00 net per annum or K321.10 net per week. The plaintiff was earning considerably more as a technician than as a fitter. However, I do not believe that that salary is a true reflection of his capacity to earn on the open labour market. The job was specially created for him and the difficulties he had in carrying it out were accepted by the defendant. It would not be likely that an employer, other than the defendant, to whom the plaintiff came with the disabilities and restrictions caused by his injury, would tolerate his frequent absences, limited capacity and demands for assistance. Moreover, the plaintiff could not have stayed indefinitely in the defendant’s employment even were he not dismissed. It was anticipated that within two years or so that job would be localized. As a direct consequence of the accident the plaintiff is now permanently excluded from all forms of his pre-injury employment. He has lost the capacity for heavy work and for work which requires agility or mobility. He is not trained for clerical work and earlier attempts to engage in that type of employment met with a singular lack of success. However, he is not unemployable and there are many forms of employment within his capacity. He could quite easily perform work sitting at a bench which permitted him to stand or sit as comfort demanded. The difficulty, of course, is to obtain such a job. Employers usually give preference of employment to applicants who do not suffer physical disability. The depressed condition of the labour market, however, is not a matter for which the defendant can be held liable and I must assess as best I can the sum which reflects the interference with the plaintiff’s capacity to earn. The difficulty which confronts me is the total lack of evidence upon which I am to make the assessment. In Allan v. Loadsman[cxciii]²³ Samuels J.A. speaking of the assessment of damages for the diminished earning capacity of an injured plaintiff said at p. 793:

“... the inquiry concerns the difference between what he could have earned without the injury and what he can earn affected by the injury and its consequences. Whether the assessment is made in the conventional way, using the tables as a guide, or by recourse to intuition, it is ultimately a money differential which is in question. It is necessary, therefore, to have evidence as to the extent of the remuneration which the plaintiff remains capable of earning, and this imperative is not satisfied by establishing the nature of the work which the plaintiff is physically capable of performing. There must also be material which translates physical capacity into economic reward.”

In that case his Honour referred to the statement of Devlin J. (as he then was) in Biggin & Co. Ltd. v. Permanite Ltd.[cxciv]²⁴ that where precise evidence is available the Court normally expects to have it. In this case it would have not been impossible for the plaintiff’s advisers to obtain evidence of the likely amount the plaintiff could earn in his injured state either here, in Australia or in Germany. Mr. Griffin, however, relies upon a further passage from Biggin & Co. Ltd. v. Permanite Ltd.[cxcv]²⁵ also at p. 438. Dealing with an assessment of damages for breach of contract where goods had been damaged his Lordship said:

“I think in such a situation the Court is bound to do the best that it can. It is no more difficult to estimate a plaintiff’s loss in such circumstances than it is to estimate the loss of earning capacity caused by physical disablement.”

I am invited in accordance with what was said there to do the best I can. That case was reversed on appeal though no reference was made by their Lordships of the Court of Appeal to the passage above quoted. However, the difficulty still remains. Were I a judge of a tribunal which assessed compensation for injured workers under one of the Workers Compensation Acts I would immediately be entitled and qualified to make an assessment of the reduction in earning capacity: Keane v. Mt. Vernon Colliery Co.[cxcvi]²⁶; Bryer v. Metropolitan Water, Sewerage and Drainage Board[cxcvii]²⁷. My own experience as counsel in Australia qualifies me to make an assessment of the amount which the plaintiff might earn there in both his injured and uninjured condition in that country. However, I know less of salaries which qualified tradesmen command in this country and nothing of the situation in Germany. Mahoney J.A. in Allan v. Loadsman[cxcviii]²⁸ did not exclude that it was open to a judge to base an estimate of loss of earning capacity by regard to level of wages and such like information that had otherwise come to him. With more courage than wisdom demands I propose to make an assessment of the plaintiff’s loss of earning capacity. In so doing I have differentiated between that part of his general damages which relate to pain and suffering and loss of enjoyment of life and that part related to earning capacity so that if the matter is to be considered by another tribunal it may more easily be dealt with.

The plaintiff is now aged thirty-two years and could have expected to have a working life of some thirty years ahead of him. I would think he would have been capable of earning uninjured a weekly equivalent amount in the order of K200.00 to K250.00 on the open labour market in Australia. In his injured state I believe he could find employment which would return him the equivalent of K150.00 to K200.00 each week. In my view he has suffered a diminution in capacity to earn in the order of K50.00 per week. If one used the 8% tables as a guide a sum of K30,523.00 would be required to capitalise K50.00 per week for thirty years. However, investment at rates greater than 8% is readily available and allowance must be made for contingencies. While the figure of K50.00 may represent his loss if he were in Australia that cannot be said to represent his entitlement to damages in Papua New Guinea, nor the loss he may suffer upon his return to Germany. Acting by recourse to intuition, though relying upon my own experience, I think an appropriate figure to allow the plaintiff for loss of earning capacity is K20,000.00.

Thus the plaintiff is entitled to damages of K57,582.00 made up as follows:

Pain and suffering; loss of enjoyment of life	K25,000.00
Additional medical and associated expenses	480.00
Repair and replacement of surgical shoes	500.00
Accommodation in Germany	1,410.00
Airfare to Melbourne	192.00
Loss of wages to date of trial	10,000.00
Diminution of earning capacity	20,000.00
	K57,582.00

It would be appropriate to observe that it may not be in every case that a judge will make an assessment of loss of earning capacity in the manner adopted in this case. It is otiose to say the plaintiff carries the onus to prove his damages. If in some future case no evidence is called to establish either loss of future earnings or loss of earning capacity it well may be that no provision will be made in respect of such matters in the assessment of a plaintiff’s damages. In every case where a loss of earning capacity is alleged a plaintiff should prove what particular jobs are within his capacity and what remuneration such employment will return. The loss of earning capacity is a fact which, like every other fact, ought to be proved. There ought also to be evidence upon which a loss of earning capacity can be expressed in economic terms.

There will be a verdict for the plaintiff in the sum of K57,582.00. I order the defendant to pay the plaintiff’s costs of this action as agreed or taxed.

Orders accordingly.

Solicitors for the plaintiff: Craig Kirke & Wright.

Solicitors for the defendant: McCubbery Train Love & Thomas.

[clxxi]Infra p. 195.

[clxxii] [1943] K.B. 557 at p. 563.

[clxxiii][1938] A.C. 57.

[clxxiv][1959] VicRp 99; [1959] V.R. 790 at p. 791.

[clxxv] [1953] A.C. 180 at p. 190.

[clxxvi](1954) 100 C.L.R. 225.

[clxxvii](1954) 100 C.L.R. 225.

[clxxviii][1959] VicRp 99; [1959] V.R. 790 at p. 791.

[clxxix](1937) 56 C.L.R. 464.