New South Wales Supreme Court CITATION : Rowney v Chambers Logging Pty Ltd [2000] NSWSC 254 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 100/86 HEARING DATE(S) : 27-29 March 2000 JUDGMENT DATE : 3 April 2000 PARTIES : Warren Peter Rowney (Plaintiff) Chambers Logging Pty Limited (Defendant) JUDGMENT OF : Studdert J COUNSEL : C. Callaway QC/S. Harben (Plaintiff) W. Austron (Defendant) SOLICITORS : Whitelaw McDonald (Plaintiff) Hunt & Hunt (Defendant) LEGISLATION CITED : Workers' Compensation Act Humberstone v Northern Timber Mills (1949) 79 CLR 389 CASES CITED : Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561 Stevens v Brodribb Sawmilling Co. Pty Lltd (1985-86) 160 CLR 16 Bryce v Tapalis (unreported, NSWCA, 10 February 1989) DECISION : See paras 81-82 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION STUDDERT J NEWCASTLE: Monday 3 April 2000 100/86 WARREN PETER ROWNEY v CHAMBERS LOGGING PTY LTD JUDGMENT 1 HIS HONOUR: Warren Peter Rowney is seeking damages from Chambers Logging Pty Limited. He claims to have been injured when struck by a tree or part of a tree on 21 May 1985. At the time of the happening of this event the plaintiff was engaged in cutting timber in the Wyong State Forest. 2 The plaintiff's evidence was that he was one of a team of four men engaged in the operation in the forest. The other men with whom he was working the plaintiff identified as Bob Clarke, Neil Onley and John Hamilton. According to the plaintiff, Mr Clarke was in charge of the team, and the timber getting operations started some weeks before his accident. The plaintiff described the particular compartment where the men were working as being in the Watagan Mountains. The plaintiff said that he and the other members of the team occupied a house some distance from the work site and that Mr Clarke drove the team to the work place each day in a four wheel drive vehicle. The plaintiff said that the work place was some thirty kilometres from the main road, although in cross examination he conceded that it may have been as little as fifteen kilometres away from the such road. In any event, the team travelled to the work site each day in the vehicle which Mr Clarke drove. 3 The plaintiff said that work started with daylight and it ceased when Mr Clarke, who the plaintiff regarded as the team foreman, decided that it should cease. 4 There were a number of machines used in the timber getting operation, consisting of a bulldozer, a skidder and an excavator. Mr Onley was the excavator driver, Mr Hamilton shared with Mr Clarke the job of driving the skidder and Mr Clarke drove the bulldozer. The plaintiff's task was to cut timber. 5 According to the plaintiff, the work went on for some weeks before the weather caused a period of disruption. Work had to cease because of wind and rain which rendered it too dangerous to carry on. It was the plaintiff's recollection that the disruption extended for two weeks and then a decision was made to work again, that decision being taken by Mr Clarke. The plaintiff said that work was performed on the Monday but the weather deteriorated that evening and on the following day it was wet and windy. Discussion took place at 4.30 am in the premises where the four men were staying and Mr Clarke decided that the men would work that day, although there were protests about this. Indeed, the plaintiff said that he protested that they would all be killed. Notwithstanding the protests from the plaintiff and his companions, Mr Clarke said that they would work and he drove the men out to the workplace. There was further discussion on the way and the vehicle collided with a tree on the wet and slippery road. The men arrived at the landing and, once again, the plaintiff said that he objected to working but Mr Clarke insisted. The weather did abate from time to time but not, in the plaintiff's opinion, to the stage where it was actually safe to undertake logging operations. 6 The plaintiff said that conditions were very difficult and the wind tendered to make it difficult to cut the timber because the saw kept getting caught. Again the plaintiff said he complained to Mr Clarke about the way the trees were leaning back but Mr Clarke said to keep going, and the plaintiff did so. 7 The plaintiff felled a tree and when he was about to cut the first limb off it after it had fallen, he was struck by what he later observed to be a piece of timber eight to twelve inches thick and fifteen to twenty feet long. He had not seen it come down on him, but he said it "smashed his safety hat to pieces" and drove him into the ground. 8 The plaintiff was subjected to a long and searching cross examination in the course of which he was asked about two statements which he made after the accident. The earlier of these in point of time was a notice of injury form which he completed on 2 June 1985 and in which in his handwriting he briefly stated that he had been injured when "hit on the head by a small dead tree". In cross examination it was suggested that this description was inconsistent with the description he gave in evidence as to the size of the timber which had struck him but in relative terms the plaintiff explained that a length of timber fifteen to twenty feet was small. 9 The later statement, which was made on 12 July 1985 at a time when the plaintiff was in hospital, contained no complaint about the plaintiff being required to work in dangerous conditions. In that statement, which the plaintiff signed, he said that work was delayed on 21 May because of rain and wind but that the wind died down about 7.30 am and it stopped raining and thereafter he felled twelve trees without incident. It was put to him that such a description of events was inconsistent with his evidence in chief. 10 Mr Austron submitted that I should not accept the plaintiff's account in the witness box because it differed from his earlier statements made so close to the accident. He also drew attention to the fact that no other member of the work team had been called and since there was evidence that Mr Onley had been present at court during the hearing, I should infer his evidence, had he been called, would not have advanced the plaintiff's case. Moreover, whilst a handwritten statement was introduced from Mr Clarke as Exhibit D the plaintiff did not call him and the statement did not accord with the plaintiff's account of events on the day of the accident. 11 So far as the failure to call Mr Clarke is concerned, I do not consider that I should draw any inference adverse to the plaintiff because of this. In the statement of claim filed on 18 February 1986 the plaintiff included as particulars of negligence an allegation that the plaintiff was required to work in unsafe and dangerous weather conditions and he had previously described Mr Clarke as his foreman in the notice of injury form upon which Mr Austron cross examined the plaintiff (Exhibit 1). I accept Mr Callaway's submission that it is to be expected that the defendant would have interviewed Mr Clarke in 1986, but in any event the evidence received when Exhibit D was admitted into evidence was that Mr Clarke's present whereabouts are unknown. As to the failure to call the other members of the team, there was no explanation placed before the Court as to why these men were not called and I am mindful that the plaintiff's account in the witness box has not been supported by Mr Onley or by Mr Hamilton. I heed that in his statement (Exhibit D) Mr Clarke made no reference to the protests the plaintiff claimed he had made to Mr Clarke about having to work on the day of the accident. I also have regard to the content of the statement made by the plaintiff when he was in hospital (Exhibit 2) as well as the earlier notice of injury form (Exhibit 1). 12 I approach the assessment of the plaintiff's evidence with the earlier documents and the above considerations very much in mind. I heed the various criticisms Mr Austron made of the plaintiff's evidence. 13 Notwithstanding all that Mr Austron has urged to the contrary, I formed a favourable impression of the plaintiff in the lengthy period he was in the witness box. Mr Austron submitted that I should reject his evidence as being mistaken because of the passage of time or, alternatively, as being deliberately untrue. Because the plaintiff made quite specific assertions as to the nature and the detail of his protests to Mr Clarke about working that day, it is difficult to treat this evidence as being the result of mistake through the passage of time. The plaintiff was clear about his protests to Mr Clarke. For instance, he said that before the men set out from the house on the morning of 25 May he said to Mr Clarke (T10): "…Bob, there is no way we are going to turn around and get up there because we'll all get killed." Then later, after cutting had begun, the plaintiff said he complained to Mr Clarke (T13): "Look all the trees are leaning back. The saw is getting caught all the time. It is unreasonable to turn round and expect carrying on logging operations." To that Mr Clarke replied: "Well, come on, let's keep going." 14 I do not consider there is room for rejection of the plaintiff's utterances to the above and the like effect because his memory has been rendered unreliable by the passage of time. He asserted specific recollection of those matters and a clear recollection of the events leading up to the injury. Moreover I do not accept the submission that the plaintiff was deliberately setting out to deceive the Court in his description of the events of 21 May 1985. On the contrary, I regard the plaintiff as having given an honest and generally reliable account of those events. Accordingly I am satisfied on the balance of probabilities that the plaintiff was injured when he was struck by falling timber in the circumstances he described. I accept that he regarded the working conditions as unsafe and dangerous that day and that he made the protests to Mr Clarke about which he gave evidence. 15 What was the relationship between the plaintiff and the defendant pursuant to which the plaintiff was working in the Wyong State Forest? 16 It is the plaintiff's case that he was working there under a contract of service. The defendant does not accept that this was so, and Mr Chambers, who was the defendant's manager in 1985, said that the plaintiff's services were engaged as subcontractor. 17 According to the plaintiff he had been working in New Zealand and he flew back to Australia to take up work with the defendant. Having arrived in Sydney, he flew to Newcastle where he was picked up by the other three members of the team and taken to Hawkes Nest where he spoke with Mr Chambers. According to the plaintiff Mr Chambers told him he was to start work on the following Monday and that the timber to be cut was "big hardwood". Mr Chambers also told him, the plaintiff asserted, that Bob Clarke would be the foreman in charge and that pay would be at the rate of $2-3 per ton. The plaintiff said that he spent the Saturday night at Mr Clarke's house at Hawkes Nest and the following day the four team members went to stay at a house which was provided by the defendant near the work site. Work proceeded in the forest for some weeks and was then interrupted by the bad weather earlier referred to. The accident happened on the second day after work resumed. In the period that the plaintiff worked under his contract with the defendant he said he was paid by the defendant by cheque. Payments were based upon records which Mr Onley kept of the tonnage of timber cut, and, according to the plaintiff, he was paid by cheque with "fifteen percent tax" deducted. 18 Mr Chambers' version of the arrangement was a different one. He said he offered the plaintiff a position "as a subcontractor", and that when the plaintiff arrived at Hawkes Nest Mr Chambers said there was discussion that the men would be on "so much per tonne" and that this was how they were paid, with no deduction for taxation. Mr Chambers said that the defendant was doing contract work for Sawmillers Export to whom the compartment to be worked was allocated by the Forestry Commission. Mr Chambers said he would not have told the plaintiff that Mr Clarke was his foreman because it was not the fact. He may have said (T121): "Bob [that is Mr Clarke} would look after you." 19 The criteria for determining whether a relationship is one of master and servant or of principal and independent contractor have been considered in a number of cases including Humberstone v Northern Timber Mills (1949) 79 CLR 389; Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561; and Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16. As the cases stress, an important factor in defining the relationship between one person and another for whom work is done is the extent of control over the person actually performing the work. The particular significance is the right of control even though it may not always be practical to exercise it as the circumstances in Zuijs illustrate. 20 In Stevens Mason J said at 24: "But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation (145) 70 CLR 539 at 552; Zuijs' Case; Federal Commissioner of Taxation v Barrett (1973) 129 CLR at 401; Marshall v Whittaker's Building Supply Co. (1963) 109 CLR 210 at 218. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee." 21 Another test considered in the authorities is the organisation test but this is of lesser importance than the control test: see again the judgment of Mason J in Stevens at 27. 22 Mr Austron submitted that I should find that the plaintiff was an independent contractor, pointing to what he submitted were features established by the evidence: (i) the method of remuneration with no deduction for tax; (ii) that the plaintiff provided his own equipment, being the chain saw and his safety equipment; (iii) that the defendant imposed no obligation to work in inclement weather; (iv) that the plaintiff could pursue other employment; (v) that there was no set time for holidays and there were no set hours; (vi) the defendant had no authority to direct how work was to be carried out; (vii) the plaintiff could decline to work if he chose to do so. 23 Further, he submitted that if Mr Clarke held himself out as foreman this was without the agreement of Mr Chambers. 24 To the contrary Mr Callaway submitted that the status of the plaintiff as established by the evidence was that of a casual employee paid on a piecework basis. The plaintiff was not employed by anyone else and having regard to where he was required to work and the location of the accommodation provided, it would not have been practicable for him to have done so. Taxation was deducted from his pay and the only equipment the plaintiff provided was equipment which Mr Chambers agreed was equipment provided by a person who cut timber whether he was an employee or a subcontractor. His work was controlled because he was dependent upon being taken from the accommodation to the work site, he was provided with the accommodation, he followed the instructions of Mr Clarke and he worked the hours dictated by Mr Clarke. Moreover, the heavy machinery necessary to carry out the work was provided by the defendant, as were the fuel and the cables. 25 I find as facts the following: (i) that the defendant selected the members of the team in which the plaintiff worked; (ii) that the plaintiff had no say in the selection of the team members; (iii) that Mr Clarke had worked with the defendant for thirteen years; (iv) the defendant's remuneration depended upon the timber production of the team in which the plaintiff was working; (v) the defendant provided the house where the team was staying; (vi) the defendant provided the vehicle which Mr Clarke drove and in which the team travelled to and from the compartment in the forest; (vii) that the remuneration of each member of the team depended upon the quantity of the timber cut; (viii) the defendant provided the heavy machinery employed in the operation, namely the excavator, the bulldozer and the skidder; (ix) the defendant provided the fuel and the cables; (x) the plaintiff provided his own saw and safety equipment, but it was the custom in the industry for a tree feller to do this, whether an employee or a subcontractor; (xi) Mr Clarke in fact exercised authority over the other team members as to the starting and finishing times of work in the forest for the team and on the day of the accident in directing that work proceed; (xii) Mr Chambers visited the work site from time to time and if he saw anything being done in a dangerous way he perceived it to be his obligation to intervene (T112): "Q. So if you took the view that on a particular day felling trees in this area was dangerous, you would recognise an obligation to say to the men, 'Stop, it's too dangerous to go ahead'. That is so, is it not? A. I have done that in the past, yes. But it is also the men, the contractors, that's what they are doing, to recognise dangers and to - it's an obligation of theirs also. Q. Yes, but you -- A. Everyone has an obligation. Q. You recognise your primary obligation to do it; that is so, is it not? A. If I am there. I can't be everywhere at once." 26 The evidence as to the plaintiff's status is meagre, and there is no documentary evidence that facilitates the task of determining that status. However I do accept that the plaintiff believed that Mr Clarke was his foreman, as Exhibit 1 records. I find it more probable than not that the plaintiff's belief was due to what Mr Chambers had told him at the time of his discussion at Hawkes Nest. 27 Where the accounts of the plaintiff on the one hand and of Mr Chambers on the other differ as to the terms of the discussion, I prefer the account given by the plaintiff. I prefer the plaintiff's assertion that tax was deducted from his cheque to the contrary assertion of Mr Chambers. Mr Chambers proved to be mistaken when he said that tax was not deducted from Mr Onley's wages at any time. When shown, in the course of cross examination, an invoice dated 17 October 1986 addressed to "N. Onley", Mr Chambers acknowledged that it recorded that tax was retained. He also acknowledged that the writing on the docket (which became Exhibit G) was, at least in part, his. True it is that the docket referred to payment details in the following year, but I found the evidence that Mr Chambers gave about this document and its significance to be unsatisfactory and this has, to some extent, influenced my assessment of the reliability of the evidence which Mr Chambers gave. 28 It is my understanding that timber cutters were often engaged in the industry as subcontractors and I am mindful of the particular features of the Workers' Compensation Act 1926 consistent with my understanding. However I must determine the relationship between the plaintiff and the defendant upon the evidence that has been introduced in this case and I am persuaded on the balance of probabilities by Mr Callaway's submissions that the plaintiff was a casual employee of the defendant who was paid on a piecework basis with his tax deducted. 29 I find, consistent with the plaintiff's version, that Mr Clarke was employed by the defendant and that in requiring that the plaintiff work on the day of the accident Mr Clarke failed to exercise reasonable care because the wind rendered conditions unduly hazardous. Further, accepting as I do the plaintiff's evidence as to the circumstances in which he was injured, I am satisfied that he was injured as a result of the negligence of Mr Clarke, for which I find the defendant to be vicariously liable. 30 It follows from this that the plaintiff is entitled to succeed. 31 If I am wrong in the conclusion that I have reached as to the relationship between the plaintiff and the defendant, and the defendant ought to be regarded as a principal who engaged the plaintiff's services under a contract for services, it would not follow that the defendant owed to the defendant no duty of care. The principal who engages an independent contractor in circumstances where he is able to exercise a measure of control over the work to be performed has an obligation to address the safety of the system employed. The following statement of principal to be found in the judgment of Mason J in Stevens at 31 is directly in point: "Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines." 32 The work which the plaintiff was engaged to perform was hazardous work, as Mr Chambers readily acknowledged. It was work the performance of which was rendered more hazardous by adverse weather conditions, particularly high wind. Mr Chambers recognised an obligation to tell those felling trees that it was too dangerous to perform this activity if he considered the weather had this effect. Mr Chambers was aware of the difficult weather conditions that had been encountered by this work team. Mr Chambers controlled the equipment without which the timber cutting activity could not be performed. It seems to me that in these circumstances the defendant owed to the plaintiff a duty to prescribe a safe system and to inform him that he was not expected to work and should not work in conditions which he regarded as being unduly hazardous. Such instruction should have been given directly to the plaintiff and the other team members. 33 The absence of such instruction was, in my opinion, significant. Although the plaintiff protested about doing the work because of the conditions, he ultimately did it because he considered if he did not do so he did not believe he "would have a job after that" (T94). I accept such was the plaintiff's belief. 34 If therefore the relationship between the plaintiff and the defendant ought to have been regarded as one of principal and independent contractor, I am satisfied in the circumstances the defendant owed a duty of care to the plaintiff to prescribe a safe system of work and in particular to give directions as to when the work was not to be done, that is to say in conditions of high wind. The breach of that duty of care which I am satisfied has been proved resulted in harm to the plaintiff. 35 I conclude that whatever the relationship between the plaintiff and the defendant the plaintiff was injured as a consequence of the breach of the defendant's duty of care towards him. 36 Mr Austron submitted that the plaintiff failed to exercise reasonable care for his own safety. In the first place it was submitted he ought not have worked at all since he regarded the conditions as being unduly hazardous. However, I am not persuaded that in working under protest as I find that he did, the plaintiff was guilty of contributory negligence. I accept that it was his perception that he had no choice in the matter because to decline to work he perceived would cost him his position. 37 Mr Austron next submitted that I should find the plaintiff was guilty of contributory negligence in exposing himself to the risk of being struck by the timber which fell on him. The plaintiff was an experienced timber cutter and was able to elect where to stand. He was required as a experienced cutter in his own interests to check the area surrounding the workplace and if there was any timber which presented a potential hazard Mr Austron submitted he should have brought up plant to have the potential hazard removed. 38 I am not satisfied that contributory negligence has been proved. There is no evidence as to where this timber that fell on the plaintiff came from or whether it, by its location or appearance, ought to have alerted the plaintiff to the potential hazard it presented at any time before it fell. Further, I am not persuaded in the absence of any evidence as to how close the various trees were to one another and as to where this particular timber was standing, that it would have been practicable to use machinery to remove it before the plaintiff's accident. 39 The defence of contributory negligence fails. 40 This brings me to damages. 41 The plaintiff was born on 20 October 1956, so that at the time of the accident he was twenty-eight years of age and he is now forty-three years old. From the accident scene he was taken to Wallsend Hospital, experiencing pain in the head, the right shoulder and the abdomen during the journey. After a brief stay at Wallsend Hospital the plaintiff was transferred to Royal Newcastle Hospital and admitted on the same day as the accident. There is in evidence a comprehensive report from the Director of Medical Services of that hospital which records the diagnosis and treatment of the plaintiff's injury in the period from 21 May 1985 until 1 March 1986. 42 Immediately following admission to Royal Newcastle Hospital the plaintiff went to the operating theatre and a large laceration of the liver was found and sutured. Post operatively the plaintiff developed a fever which was effectively treated and he was discharged on 3 June 1985 for review at the outpatient's clinic. The diagnosis recorded at the time of discharge was that the plaintiff had sustained a lacerated liver followed by intra-abdominal abscess. In addition there was a contusion of the right shoulder. The shoulder condition settled relatively quickly, and this injury assumes no long term significance. 43 On 6 June 1985 profuse discharge from the wound was noted and in the following month, on 9 July 1985, the plaintiff was readmitted to hospital complaining of pain in the right side of the abdomen and sweating. Once again the plaintiff was taken to the operating theatre and two abscess cavities were found posterior to the liver. The abscesses were drained. The plaintiff was discharged next on 26 July 1985 and after this he was reviewed clinically from time to time. 44 On 26 September 1985 it was decided he could return to work but on 2 October 1985 the plaintiff was readmitted to hospital with acute pain in the abdomen. This time on operation on 3 October numerous adhesions were encountered that compromised the small bowel. All the adhesions were freed and the plaintiff was discharged from hospital on 10 October 1985. 45 However he was again admitted on 25 December 1985 with a history of sweating and fever and abdominal pain and on 27 December 1985 there was a further operation and the muscle of the rectus was divided. The diagnosis for the condition that had led to that period in hospital was a right sub-hepatic abscess. The plaintiff remained in hospital until 7 January 1986. 46 There was a further admission three days later because of a complaint of abdominal pain and the plaintiff was kept in hospital until 16 January 1985. This time though there was no surgery. 47 On 1 March 1986 it was considered at the hospital that the plaintiff was fit to return to work. 48 The plaintiff said that the abdominal symptoms persisted and he experienced sharp stabbing pains from time to time. In 1986 the plaintiff went to Myrtleford in Victoria following an opportunity of employment there. With the exception of some short period in South Australia the plaintiff has resided in Victoria over the past fourteen years. He has there consulted a general practitioner, Dr Richards, and reports from Dr Richards have been tendered. The plaintiff first saw Dr Richards on 10 April 1987 after the plaintiff had earlier seen another doctor at the same group practice on 27 November 1986. There is a document which schedules some 130 attendances upon Dr Richards or one or other of the doctors at the particular group practice between 27 November 1986 and 10 March 1994. The plaintiff says that he has seen Dr Richards since 1994 also. The scheduled visits are variously described as concerning abdominal pain and the prescription of medication for it. The plaintiff was referred by Dr Richards for specialist assessment to Dr Geddes in 1988, and the plaintiff was admitted under Dr Geddes' care for assessment at Wodonga Hospital in June. At that time the doctor decided not to operate again, but in August 1988 he readmitted the plaintiff to hospital for an operation, and he found numerous intra-abdominal adhesions between the loops of small bowel, to the liver and to the anterior abdominal wall. Dr Geddes divided these adhesive bands. He was guarded in his prognosis following that procedure in August 1988, and in November 1988 reported that the development of acute small bowel obstruction was possible in the future, but unlikely. In September 1990 Dr Geddes reported that the plaintiff was fit for his pre-accident occupation as a timber getter but considered that this would at times be difficult because of attacks of abdominal pain which he felt were due to scarring in the abdominal wall musculature. Dr Geddes regarded the plaintiff's capacity to pursue his pre-accident work to have been diminished by some ten percent. 49 In the most recent report from Dr Richards dated 4 October 1999 the doctor said: "This unfortunate man continues to suffer recurrent attacks of abdominal pain. They are very frequent but he is a stoic individual and he only seeks medical help when the attacks are particularly severe. As you are aware they are due to episodes of sub-acute intestinal obstruction associated with intra-peritoneal adhesions, which have resulted from the multiple surgical procedures, which he has undergone. Essentially Mr Rowney's condition is unchanged. If anything he has become a little more depressed than previously. He still maintains full time employment in a supervisory capacity, with Carter Holt Harvey, despite the fact that his disability results in him missing occasional days at work. He continues to see a psychologist intermittently but this treatment has not resulted in a significant improvement. Similarly the physical medicine specialist who saw him last year (Dr Hilton Sheppard of Wangaratta) was unable to suggest an effective therapy. An anaesthetist, Dr Russel Bourne, has seen him. On 6th October 1998 he inserted a T8/9 epidural analgesic block. Over a period of 4-5 days, with this in place, Mr Rowney was pain free. He was concerned about the possible adverse effects, and so declined Dr Bourne's offer of an implantable epidural device for pain control. However he has decided to reconsider this in the near future, and is going to see Dr K. Vallaparam in Melbourne for future advice. There is little prospect that Mr Rowney's underlying abdominal condition will ever improve. He is at risk of a catastrophic intestinal obstruction, which does not relieve itself. Should this occur he would require life saving abdominal surgery which will be technically very difficult, and which will involve significant risk. It is possible that better pain management techniques can be found which may result in an improved quality of life." 50 Whilst Dr Richards referred to depression, the plaintiff made little of this complaint in his evidence. He was referred by his solicitors for assessment by Dr Lambeth in October 1988 and there was a report from Dr Lambeth in evidence. The doctor considered at that time that the plaintiff was suffering from depression which he regarded as being a direct result of the accident and his subsequent surgery and pain. 51 The plaintiff said that his condition was improved by the operation carried out by Dr Geddes but since then he has continued to suffer symptoms in the abdomen. The plaintiff however said that he takes pethidine and morphine only when the pain is unacceptable. This might happen once a week or once a fortnight or sometimes as often as twice a week. 52 The plaintiff married in 1990 and he has an eight year old son. The plaintiff is in regular employment and he plays golf occasionally. He did try to play football. He said he thought this was in 1991 when he had approximately eight games. There is a hospital note (in Exhibit 10) that indicates he may also have played early in 1986. 53 The plaintiff has pursued fairly regular employment since he went to Myrtleford in 1986 and he has a regular position at the present time. 54 I assessed the plaintiff as a person who has not attempted to overstate his symptoms and it seems to me on the evidence that the plaintiff has done his best to adjust to his problems. The injury to the shoulder was relatively insignificant and I do not regard the depression as being a major feature of the plaintiff's case. Nevertheless, the abdominal injury was followed by complications of infection and adhesions, I accept that the plaintiff is genuine in the complaints of pain that he has expressed and I am satisfied that those complaints are referable to the abdominal injury he sustained and the complications that followed in the course of his treatment. I so conclude having considered all the medical evidence, including all the reports tendered by Mr Austron. 55 My assessment of the plaintiff as a person who is genuine in his complaints and who has not sought to exaggerate them is fortified by the reports of specialists qualified by the defendant. 56 In his report of 30 January 1989 Dr Morris wrote, following a then recent assessment: "This man suffered a ruptured liver with recurrent surgery for repair of the liver and drainage of two subphrenic abscesses, relief of a bowel obstruction due to adhesions and division of adhesions. He has made a remarkably good recovery from all of this and I would regard his continuing symptoms as entirely believable." 57 Dr Sturrock, on 31 January 1989, reported having seen the plaintiff the previous day: "This young man, as a result of being struck by a falling branch from a tree suffered severe abdominal injuries which has given rise to complications. I have no doubt that the pain that develops periodically in his shoulder associated with abdominal pain is the result of his abdominal injury and is not the result of any injury to his shoulder. It is well known that upper abdominal conditions on the right side, such as inflammation of a gall bladder give rise to pain in the shoulder and certainly any irritation of the sub phrenic region would give rise to shoulder pain. It is greatly to this young man's credit that he is now back working in the logging industry…" 58 Dr Puflett saw the plaintiff on 30 January 1989 and concluded his report of 6 February 1989: "This man is a very good type, who is trying to make a life of his own in spite of serious medical problems. On the whole the problem of recurring obstructions from adhesions does get less with time. It is difficult to give a generalisation on a particular case. It seems to me that it is a precarious situation where he is getting intestinal obstructions and which may become complete, or may not become complete. One can only wait and see how he fares. 59 The most recent medical assessment made on behalf of the defendant was that of Dr Morris who saw the plaintiff on 7 February 2000. Dr Morris opined: "My views regarding this man have already been set out to you; he complains of recurrent severe attacks of pains principally in the right upper quadrant and it seems these attacks have continued according to the account given today. My general impression is that overall at the present they are neither any better or any worse than when I saw him previously, and when I put this to him he was in complete agreement. As indicated previously it is very hard to place any definite diagnosis on this and I did in my previous report consider a number of possible explanations outlining the difficulties with each of these explanations; I think these difficulties remain. From a practical point of view he certainly appears to be fully fit for work and given his general demeanour and attitude I think it is highly likely that he will remain, and it may well be that with the conclusion of litigation his symptoms such as they are, will fade into the background." 60 There may be further improvement in the future, as Dr Morris stated, but there is some risk of further adhesions, which ought to lessen as time goes on. Nevertheless the risk of obstruction requiring surgery remains and the plaintiff faces the prospect of persistence of abdominal pain in the future. His body is badly scarred, as shown by photographs tendered, although the plaintiff makes no complaint about this. 61 I consider that the case is one that calls for a substantial allowance for the non economic aspects of general damages. The plaintiff will require medication and medical review from time to time. Mr Callaway has not submitted that it is possible on the evidence to arrive at a discrete allowance with mathematical precision and I do not propose to attempt any such exercise. Nevertheless I recognise that there will be some need to be addressed, and I take this into account in my assessment of general damages in the sum of $70,000. 62 The parties are agreed on past economic loss up to September 1999. The loss up to that time is agreed in the sum of $43,777 and no claim was made, and no allowance was included, in the above figure for any loss between 1989 and 1999. 63 However the plaintiff does make a claim for loss of earnings since 22 September 1999. That claim is resisted. The plaintiff has been employed in the timber industry by Carter Holt Harvey in Myrtleford. He has been so employed for approximately nine years and he advanced in that employment to the position of leading hand on rotating shifts. However he said that he found that with night shift he was "having a lot of sickies" so he took the initiative to be downgraded to a fork lift driver's position, earning some $90 per week less. 64 The work that the plaintiff was required to do as a leading hand was responsible work and most of his time was spent in directing others to do the physical work and in "overseeing the smooth operation of making plywood" (T29). It was put to the plaintiff that there were family considerations which influenced the decision to move away from shift work and the evidence disclosed that the plaintiff's wife now works for the same employer and the plaintiff has an eight year old son with whom he is involved in activity on Saturdays. In cross examination (T29) it was put to the plaintiff that the downgrading of his activities at work was not related to stomach symptoms and the plaintiff's response was that this was "not totally correct". 65 Whilst I have generally formed a favourable opinion of the plaintiff, I am not satisfied on the evidence that his injury related disabilities rendered him incapable of carrying on with the shift work position as a leading hand, particularly since that work was, on the plaintiff's own description of it, essentially supervisory. The plaintiff has not satisfied me on the balance of probabilities that the accident in 1985 has made him unfit to do the work he had been doing for a considerable period of time prior to last September. 66 Accordingly the allowance which I make for past economic loss is limited to the figure about which agreement was reached, namely the sum of $43,777. 67 Medical and hospital expenses have been paid by the defendant's insurer in the sum of $30,182. There is a further sum of $8719 (omitting cents) which represents the cost of additional treatment as disclosed in a schedule from the Health Insurance Commission (Exhibit H). Out of pocket expenses I therefore allow in the sum of $38,901. 68 The Fox v Wood adjustment for the defendant's statutory defence is $1200. 69 Mr Callaway makes a claim for loss of earning capacity for the future. I am invited to measure that claim at $90 per week for the remainder of the plaintiff's working life. However, as already indicated, I do not consider that the plaintiff has made good the claimed inability to continue with the leading hand shift work. Nevertheless, it seems to me that the plaintiff does have some physical restriction. I accept, as Dr Geddes said, that by reason of his abdominal problems the plaintiff's capacity for his pre injury occupation as a timber getter has been diminished by ten percent. The plaintiff is not working as a timber worker and I do not understand he has any intention of seeking such work in the future, being happy and seemingly secure in his present position. Nevertheless, there is a restriction on the plaintiff's work capacity should he be forced on to the open labour market. Moreover, there is the risk that the plaintiff may have flare ups in his abdominal symptoms from time to time. I accept the evidence, for instance, that the plaintiff spent a week in Wangaratta Hospital in 1998 and that he has had time off for which he has claimed sick pay in recent years. 70 It seems to me that I should make some provision to reflect such limitation as there is upon the plaintiff's physical capacity for work and to afford a buffer against the risk that there will be disruptions in his work in the future because of his abdominal problems. I propose to allow the sum of $20,000 for this. 71 Accordingly, I summarise my assessment as follows: General damages (non economic loss) $70,000 Medical and hospital expenses 38,901 Loss of earnings to date 43,777 Loss of earning capacity for the future 20,000 Fox v Wood adjustment 1,200 $173,878 72 The defendant has made payments to and on behalf of the plaintiff under the Workers' Compensation Act affording a defence under that statute in the sum of $36,047. That reduces the defendant's liability to $137,831. 73 This leaves the issue of interest. 74 There has been extreme and unexplained delay in this matter coming on for trial. The statement of claim was filed on 18 February 1986 and a defence was filed promptly on 11 April 1986. At that time the defendant requisitioned a jury. For some reason, which has not been explained, the plaintiff did not set the matter down for trial until April 1993. 75 Had this matter proceeded with due expedition the plaintiff could have expected his case to be heard within five years of the accident. In fact a period of fifteen years has elapsed. Is the plaintiff to be allowed interest for the whole period? 76 What interest should be awarded is a discretionary matter. My task is to fashion an order which does justice and gives due consideration to all the circumstances. 77 One consideration is that the plaintiff has been deprived in the past of the damages which I have now assessed. Whilst he, by reason of the delay, enjoys the benefits of inflation in the allowance for the non economic aspects of general damages, the allowance for loss of earning capacity to date is an allowance which in its entirety accrued by 1989. 78 On the other hand, it seems to me that there are public policy considerations to be addressed: see as to this the judgment of Kirby P in Bryce v Tapalis (unreported, NSWCA, 10 February 1989, in particular at p 10). Parties to litigation are, as the President there observed, to be encouraged to bring their cases to trial expeditiously. The longer the delay in a matter reaching a hearing the more difficult it may become to determine factual issues that arise. In the present case, one consequence of the delay is that all financial records which the defendant held and which may have evidenced the relationship with the plaintiff have been lost. 79 The delay in this case has been so great that I consider it would be unjust in the exercise of my discretion to allow interest for the whole period. What I propose to do is to allow interest for five years. Of the allowance for the non economic aspects I apportion $50,000 to the past. I therefore allow interest at two percent for five years in the sum of $5000. 80 There must be offset against the wage loss the sum of $6946 which the plaintiff has received by way of weekly payments under the statute. I therefore allow interest on $36,831 for five years at the agreed rate of 12.5%. For interest on the allowance for past economic loss I therefore award $23,000, rounding the calculation off. 81 Accordingly, the sum for which judgment is to be entered is increased by $28,000 and there will be judgment for the plaintiff in the sum of $165,831. 82 I order the defendant to pay the plaintiff's costs. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.