Attard v Aberwood P/L
[2003] NSWSC 984
•3 November 2003
CITATION: Attard v Aberwood P/L & Anor [2003] NSWSC 984 HEARING DATE(S): 14 & 15 October 2003 JUDGMENT DATE:
3 November 2003JURISDICTION:
Common LawJUDGMENT OF: Master Harrison DECISION: (1) The defendants are to pay the plaintiff the sum of $151,776.00 for damages; (2) Costs are reserved. CATCHWORDS: Rehearing - Arbitrator's sward - Assessment - motor vehicle account LEGISLATION CITED: Motor Accident Act 1988 CASES CITED: Bridge Printery Pty Ltd v Jose Mestre [1999] NSWCA 342
Dykstra v Head (1989) Aust Torts Rep 80-280
Malec v Hutton (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1PARTIES :
Anthony Attard
(Plaintiff)Aberwood Pty Ltd
Michael John Cassells
(First Defendant)
(Second Defendant)FILE NUMBER(S): SC 20598/2001 COUNSEL: Mr TDF Hughes
Mr GJ Bellew with
(Plaintiff)
Mr LK Crowley
(Defendants)SOLICITORS: Ms Caroline Clarke
Ms A Mahoney
GH Healey & Co
(Plaintiff)
Sparke Helmore
(Defendants)
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
MASTER HARRISON
20598/2001 - ANTHONY ATTARD vMONDAY, 3 NOVEMBER 2003
- ABERWOOD PTY LTD & ANOR
- Assessment; motor vehicle accident)
1 MASTER: This matter comes before me by way of a rehearing of an award of an Arbitrator. The plaintiff seeks damages for personal injuries sustained in a motor vehicle accident which occurred on 30 June 1998. The plaintiff was born on 3 September 1952 and was 45 years of age at the time of the accident. He is now 51 years of age.
2 On 30 June 1998, at approximately 5.40pm, the plaintiff was travelling in a southerly direction along Regent Street, Riverstone. The second defendant Michael Cassels was driving a truck. He proceeded through the intersection of Regent and Oxford Streets, travelling along Oxford Street in an easterly direction. The second defendant failed to obey giveway signs on Oxford Street and collided with the plaintiff’s red four-wheel drive after the accident occurred. The plaintiff’s car veered onto the left hand side of the road and came to rest on the footpath next to a fence. His vehicle was damaged on the driver’s side from the door along the bonnet. The photograph in Ex A depicts the plaintiff’s damaged four-wheel drive. The accident caused the bull bar on the plaintiff’s vehicle to become partially dislodged. The plaintiff’s car travelled about 60’ after the impact. The plaintiff estimates that he was travelling at about 55 mph when the collision occurred. As a result of the defendants’ negligence, the plaintiff sustained injuries to his neck, shoulders left arm, back and left leg. Breach of duty of care is admitted. Contributory negligence is not in issue.
3 The plaintiff and his wife gave evidence and were cross examined. By way of background, the plaintiff was born on 3 September 1952 in Gozo, Malta. He is married to his wife Rita. They have four children who are now adults. Between 1965 an 1967 the plaintiff attended high school for three years. He is right hand dominant. The plaintiff left school in 1967 and went to work for his father who was a builder and truck driver. He did not obtain formal trade qualifications. In March 1971 the plaintiff migrated to Australia. The plaintiff’s working life has centred on carpentry and labouring type work. Within two weeks of arriving, the plaintiff obtained a job working for Metal Protectives in Granville and has been in full-time employment ever since. At Metal Protectives he was carrying out physical work doing sandblasting. In 1973 the plaintiff worked with a company in the city involved in putting epoxy resin on floors.
4 From the end of 1973 until February 1975, the plaintiff was employed at Shore Time Industries. Again he was performing physical work making chicken feeders. On 8 February 1975 the plaintiff married his wife Rita. Between 1975 and 1979 the plaintiff went back to work for Metal Protectives where he carried out painting and crane driving. Between 1975 and 1981 the plaintiff worked for a company called Perlow at Smithfield. He was involved in physical work, such as the painting and driving of cranes.
5 In 1981 the plaintiff and his wife purchased a bread run business which operated between Wentworthville and Schofields. They conducted this bread run for two years. In 1983 the plaintiff returned, for the third time, to Metal Protectives where he carried out maintenance work. Between 1985 and 1989 the plaintiff was self-employed carrying out fire proofing work.
6 In 1989 the plaintiff injured his right shoulder as he was using a heavy hose to spray ceilings. He took two to three months off work and then he and his wife purchased a delicatessen business in Wentworthville. The pain in his right shoulder eased off after about six to eight months. With the change in work the plaintiff and his wife ran the delicatessen business, seven days per week from 7.00am until 700pm. The delicatessen business was closed down in 1994.
7 In 1994 the plaintiff commenced working with Fleetwood Engineering Pty Ltd (Fleetwood) at Riverstone where he remained until 2001. The plaintiff was employed on a sub-contracting basis through his company Attard Nominees. Fleetwood was and is involved in the business of constructing and maintaining wooden footbridges and walking platforms. Usually the constructions are made from mixed hardwoods, but they also constructed some metal footbridges. The plaintiff performed heaving labouring work on a full-time basis of five days per week. He would leave for work at about 7.00am, and attend the site where the bridge was to be built.
8 The logs would have been already craned in to the site. If the footbridge was located across a creek, logs would already have been placed across the creek. The Fleetwood employees would cut the timber sleepers to the prerequisite size on site. He, together with other employees, would be responsible for erecting the joists and assembling the timber deck. The timber had to be cut to the required lengths on site. The assembling of the bridge or platform was secured by bolts, which would be drilled into the construction. In order to do this the plaintiff was obliged to place his body in awkward positions, such as crouching underneath the bridge. I accept that prior to the accident the previous symptoms experienced in the plaintiff’s right shoulder had fully resolved and that he was fit and in good health. He was capable of performing a very physically demanding full-time job in addition to the work he performed outside those work hours.
9 At the time of the accident, the plaintiff was a company director for Attard Nominees Pty Limited, and worked as a cabinetmaker and carpenter. As noted above, the company was sub-contracting the plaintiff’s services to Fleetwood Engineering Pty Limited. Apart from sub-contracting to Fleetwood, the company also undertook two types of work namely, firstly, the reconditioning of tanks for Castrol, and secondly, the kitchen cabinet making business on a hobby basis.
10 Meanwhile in 1994, the plaintiff undertook additional work on a sub-contract business with Castrol. He carried out the reconditioning and renovation of metal tanks. These tanks were about 200mm x 1200mm x 600mm in depth and stood on legs. When he had tanks that required reconditioning he would spend three to four hours per day carrying it out. He would leave the business at about 4.00pm and work on the tanks until about 7.00pm and then return to pick up his wife from the delicatessen when it closed. Later that evening the plaintiff would do some more work on the tanks at home. That tank work involved collecting the tanks from the site and transporting them home. He then would unload the tanks and cut a big hole in the tank with a jigsaw. He would empty the oil out of the bottom of the tank and then clean the inside of the tank with degreaser, dry the tank out, put the lid back on and weld it. He would make sure that all the repairs to the tank were carried out. If necessary he would repaint the tank. The rejuvenated tanks were then transported back to Castrol. His wife would come outside to assist when he requested her to do so and watch him when he climbed inside the tank to degrease it. She would hand him tools, but otherwise he would do all the physical work involved in restoring the tanks (t 6.20-32).
11 Both the kitchen work and Castrol tank reconditioning work were carried out at the plaintiff’s residential premises at Toongabbie after work. He would come home from work at about 5.00pm, have a cup of tea, (presumably eat dinner) and then return to his backyard shed to work until about 7.30pm or 8.00pm each night. The amount of time he spent working from home depended on how many, if any, tanks he had to recondition. If he did not have to carry out work on the tanks he would focus his efforts on his kitchen cabinet making activities. The plaintiff estimated that aside from the time he spent with Fleetwood, he was spending three to four hours per night working when the tanks were there (t 7.42). As an average, the plaintiff estimated that he would spend between 20 to 25 hours per week working on the tanks and cabinet making (t 10.15).
12 Prior to the accident, the company’s income was almost entirely derived from the plaintiff’s carrying out the physical activities in the three types of jobs described above. Before and after the accident Attard earned income from the rental of a Central Coast property. This income plays no part in this assessment of damages.
13 In about 1994 the plaintiff built his own house on his property at Toongabbie. He carried out most of the labour with the exception of tradework involving plumbing and electrics. Prior to the accident the plaintiff had purchased a property on the Central Coast. He and his wife have plans to redevelop the site by building three townhouses on the site. He does not intend to perform any of the labour. There is no claim for the costs of this townhouse redevelopment.
14 I now return to consider the accident and the plaintiff’s subsequent injuries. The plaintiff waited 1 to 1½ hours for an ambulance to transfer him to Westmead hospital, as the passenger in the other vehicle was trapped. The plaintiff was placed on a bed and placed in a brace in the casualty department of Westmead hospital. After waiting a number of hours and not having been examined by a doctor, he discharged himself. His son drove him home. The plaintiff was in pain throughout the night and could not sleep (t 12. 43 - 13.13). The next day he consulted his general practitioner, Dr Becker. On 2 July 1998, Dr Becker provided a medical certificate which recorded that from examination the plaintiff was suffering from neck strain and stated that the plaintiff was involved in a motor vehicle accident on the way home from work. Dr Becker recommended physiotherapy. The plaintiff attended physiotherapy at premises next door to Dr Becker each day for about four weeks. At the time he found physiotherapy of assistance. Dr Becker provided further medical certificates (Ex G).
15 Dr Becker’s clinical notes also of 2 July 1998 reveal that upon examination the plaintiff experienced pain in both shoulders, tenderness on left side of neck and both trapezia muscles. On 6 July 1998, the doctor’s records noted that the plaintiff was improving. On 28 July 1998, a record was made that the plaintiff had pain in the left shoulder and trapezius. The next entry, namely on 28 January 1999, records the plaintiff’s complaint of pain in the neck and left shoulder (Ex 4).
16 Dr Phillips reported on the ultrasound of the cervical spine and left shoulder taken on 29 January 1999. The ultrasound of the cervical spine showed that there was loss of normal lordosis, and that degenerative change was developing at the C4/5 and C5/6 disc levels. The ultrasound of the left shoulder showed the biceps and rotator cuff tendons outlined normally. There was no evidence of tendonitis, tear or degeneration, and no calcification or fluid collection and normal movement was seen without impingement.
17 Dr Yuen, the plaintiff treating general practitioner in 1999, recorded a number of consultations for various complaints. From time to time in 1999, the plaintiff sought medical assistance for the pain in his left shoulder. On 11 March 1999 there is a record of the plaintiff’s consultation concerning his left shoulder pain. He was prescribed Voltaren. Likewise, on 8 April 1999 Dr Yuen recorded that the plaintiff experienced pain in both shoulders after heavy lifting two days previously. On 18 August 1999, the doctor’s notes record that the shoulder pain was much better. The left shoulder pain had flared up again on 21 December 1999 (at this time, some 18 months had elapsed since the accident), because Dr Yuen recorded “left trapezius pain after heavy lifting four days ago” and there was restricted left movement and mild muscle spasm. From January 2002 to date, the plaintiff has sought medical treatment from his current general practitioner Dr Alam. Dr Alam gave brief evidence to the Court. Since January 2002, the plaintiff has attended Dr Alam once per month for his neck and shoulder pain. Dr Alam provides treatment including a neck manipulation, which the plaintiff finds relieves his neck pain. However, the plaintiff’s neck pain returns about one week after the treatment.
18 Overall, from the plaintiff’s evidence and the treating general practitioners’ notes, the plaintiff after a few weeks off work has been able to carry out physical work on a full time basis, but from time to time if he carries out heavy lifting he experiences pain in his left shoulder and at the base of the left side of his neck. Sometimes this pain is severe enough to cause him to resort to taking painkillers. The pain he experiences in his neck and left shoulder radiates down into his low back, extends down his left leg to his two biggest toes on his left foot. Those toes sometimes go numb. This pain also radiates down his left forearm to his elbow and across to the right shoulder from time to time. He said that the neck pain is always there.
19 As previously stated, the plaintiff had two weeks off work due to the injuries suffered in the accident. After that period, the plaintiff returned to work for Attard Nominees and Fleetwood Engineering on the same sub-contracting basis. At first he attempted to perform light duties but that became impossible because there were only three to four other employees, so he was obliged to return to his normal duties. Occasionally he had to take days off work due to his neck and shoulder pain. He found it difficult to drive the forklift. He also became reluctant to look over his shoulder when reversing a vehicle due to neck pain. Nevertheless, the plaintiff continued to work with Fleetwood until April 2001. His wife gave evidence that he kept the same hours at Fleetwood after the accident (t 22.35-45). Between December 2000 and March 2001, Fleetwood weekly work sheets (Ex 2) show that over this period the plaintiff was working, on average, about 33 hours per week.
20 As previously stated by 1998, the plaintiff was constructing kitchens after work in his backyard shed as a hobby. Prior to the accident, the plaintiff’s wife Rita rendered some little assistance with his cabinet making and tank renovation activities. She did not ever play a role in his employment activities with Fleetwood. I shall refer to these activities in more detail later in the judgment under the heading of past economic loss.
Medical reports
21 Doctors Coffey, Mahoney, Alam and Middleton attribute the plaintiff’s neck symptoms as being consistent with the after effects of a soft tissue injury to his cervical spine. The accident caused aggravation of an underlying spondylitic change in the plaintiff’s neck, which was asymptomatic prior to the accident. Doctors Cummine and Matheson disagreed with this view. They attributed the plaintiff’s condition as arising principally from underlying degenerate change.
22 Dr Coffey (reports 8 July 1999 and 4 February 2002) noted that the plaintiff complained of fluctuating pain and stiffness in his neck and discomfort in the left shoulder, spreading down into the arm and forearm. The plaintiff also had discomfort in the left lower back, flank and hip region, particularly after long hours of bending at work. Dr Coffey commented that the plaintiff’s neck symptoms and low back pain were consistent with the after effects of a soft tissue injury to his cervical spine, with probable aggravation of mild underlying degenerative disease in his neck. He said that the plaintiff’s shoulder symptoms were consistent with capsulitis of the shoulder joint itself. Dr Mahoney (reports 16 July 1999, 5 February 2002 and 22 January 2003) and Dr Middleton (report 18 March 2002) expressed a similar view. These doctors stated that the plaintiff’s neck, left shoulder, left hip and leg pains will most likely continue with some pains in the affected areas, increasing particularly with very manually demanding activities, and limit his capacity to undertake such activities at his pre-injury level. They opined that there may be some further gradual progressive reduction in capacity for the more demanding lifting and manual types of work. All agreed that the plaintiff is medically fit to perform full-time light duties.
23 On the other hand, Doctor Cummine (reports of 22 April 2002 and 25 September 2003) stated that as a result of the motor vehicle accident the plaintiff sustained minor soft tissue injuries but that in the “normal course of events” he envisaged a “gradual resolution of all symptoms with no late complications or permanent impairment attributable to the accident”. In respect of the cervical spine, Doctor Cummine said that it showed a mild degenerate change and that this was constitutional and pre-existent and had not been significantly altered in the plaintiff by his accident. Dr Matheson (report 15 February 2002) stated that the plaintiff’s accident had aggravated an existing neck condition and also caused some soft tissue injury to the left hip. Dr Matheson was prepared to apportion some of the plaintiff’s symptoms in his neck and left trapezius to the accident but not to his spine or legs. Dr Matheson felt that the plaintiff had “hung on” to his symptoms longer than would be expected.
24 Dr Ho provided two reports dated 27 March and 2 April 2002. In the report of 2 April 2002, Dr Ho relayed findings on an X-ray of the cervical spine, the left shoulder, the left elbow, a CT scan of the cervical spine and a CT scan of the lumbar spine. He noted in respect of the X-rays and the CT scan of the cervical spine only that there was a “mild narrowing” of the C4-5 and C5-6 discs of the cervical spine. He also said that a cervical uncodisc arthrosis had developed and there were mild degenerative changes noted in the C7-T1 facet joints. Dr Frank Yuen prepared a report of 24 March 2000. Dr Yuen found that in X-ray the plaintiff had early cervical disc degeneration. The reports of Dr Allan and Dr Yuen do not address the issues of causation and prognosis. I prefer the views of Drs Coffey, Mahoney and Middleton to those of Drs Matheson and Cummine. Drs Mahoney and Coffey’s views are consistent with those of the treating general practitioner’s and that of the plaintiff. They are also consistent with the general practitioner’s clinical notes. The car accident caused the pre-existing asymptomatic degenerative changes of the neck and left shoulder to become symptomatic.
25 Both Dr Maguire (report 6 August 2002) and Sam Borenstein psychologist (report February 2002) agreed that the plaintiff suffered an adjustment disorder with mixed anxiety and depressed mood. Mr Borenstein stated that the plaintiff could benefit from psychological consultation of eighteen sessions at $161.00 per hour. Whereas Dr Maguire stated that the plaintiff could benefit from a low dose of Tricyclic anti-depressant and six sessions of relaxation training. Dr Maguire stated that the mild disorder was not a permanent impairment. The plaintiff suffered an adjustment disorder which is not permanent.
26 This assessment of damages is made in accordance with the provisions of the Motor Accident Act 1988.
Non economic loss
27 I have referred to the plaintiff’s injuries to his neck and left shoulder, back, left arm and leg and right shoulder and adjustment disorder previously in this judgment and the medical opinions expressed above. I have taken these into account.
28 Prior to the accident, the plaintiff went rock fishing with his son on Sundays. On Saturday evenings the plaintiff and his wife attended Church and sometimes went out to dinner afterwards. He was a happy man. After the accident, the plaintiff found this past time physically difficult such that he no longer enjoyed it. He prefers to work. Prior to the accident, the plaintiff’s wife described him as being happy with a good sense of humour. She gave evidence that after the accident the plaintiff changed. He angers more easily.
29 After the accident the plaintiff’s sleeping habits have changed markedly. He used to sleep very well. Now on at least three nights per week, he has disturbed sleep. He cannot sleep well on his left hand side and his arm goes numb. He has a repeated nightmare involving a motor vehicle accident, which causes him to wake up feeling hot and very sweaty. His wife says that she sometimes hears the plaintiff shouting. The plaintiff at this time gets out of bed and watches television until he falls asleep. Hence when he wakes up in the morning he sometimes feels tired. At the shed, if the plaintiff has not had enough sleep the previous night he sleeps for about half to one hour during the day in the back of the trailer.
30 The plaintiff’s wife has observed him rubbing his neck and left shoulder. She massages the plaintiff’s shoulder three to four times per week for five to ten minutes. The plaintiff’s wife has observed that in the last two years, the plaintiff’s productivity at work has decreased. It now takes longer to do the same job and he is always tired. The plaintiff gets tired more easily and has some difficulty with concentration and angers more easily.
31 The plaintiff suffers from headaches about twice per week, but some weeks he does not get any (t 21). He never experienced headaches prior to the accident. His current complaints are that he has constant pain at the back of his neck on the left hand side. He experiences lower back pain and when he keeps pushing himself at work he experiences pain from time to time which radiates down his left leg and to the two biggest toes on his left foot. If he pushes himself at work the pain may also spread across to his right shoulder. The plaintiff is capable of performing domestic duties, lawn mowing and gardening.
32 The plaintiff was absent from full-time work for two weeks. He is still able to work long hours doing physical work, albeit with pain, sometimes it is worse than at other times. Sometimes he has had to rest at work for half to one hour during the day. Taking all of this into account, I assess non economic loss as being 25% of a most extreme case, which equates to $21,500.00.
Past out of pocket expenses
33 The day after the accident, the plaintiff commenced physiotherapy for a period of four weeks on a daily basis. During this time he found physiotherapy of assistance. The plaintiff has provided a schedule of medical expenses which amount to the sum of $4,946.00. The defendant disagrees with this amount. The schedule does not include the daily physiotherapy referred to above. I allow the amount of $4,946.00 as being necessary and reasonable.
Economic loss
34 As previously stated, the income made by Attard Nominees has earned has been through the plaintiff’s physical exertion. In cross examination the plaintiff and his wife said that the plaintiff is still working the same hours as before the accident, but he is working at a slower pace. Attard’s business income for the year ending 1996 was $64,720.00; 1997 - $70,766.00; 1998 - $56,997.00; 1999 - $74,633.00; 2000 - $103,333 and 2001 - $65,835.00. Mr and Mrs Attard both drew wages from Attard both before and after the accident. In the year ended 30 June 1998, the plaintiff’s total nett earnings per week for assessment purposes were $322.00 nett per week. For the income year ending 1999 the plaintiff earned $334.00 nett per week; for 2000 he earned $444.00 and in 2001 he earned 271.00 nett per week. For the same period the plaintiff’s wife earned nett weekly wages in the sum of $134.00, $257.00 and $125.00.
35 The plaintiff and defendant both relied on accountants’ reports. The plaintiff relied upon the report of Forensic Economic Loss Report dated 28 March 2002. Mr Dolman assessed the plaintiff’s current nett weekly loss at $534.00 and calculated future economic loss at $301,710.00. Alternatively, Mr Dolman calculated the plaintiff’s future economic loss on the basis of replacement labour. Initially Mr Dolman calculated the loss on the basis that he will have to employ an apprentice carpenter. By using this method the plaintiff’s future economic loss is calculated at $143,510.00. When it was drawn to Mr Dolman’s attention that the plaintiff was not a qualified carpenter, and could not employ an apprentice, he assessed the loss on the basis of an unskilled worker and arrived at a figure of $321,564. This figure did not include vicissitudes. When vicissitudes are included at 15%, Mr Dolman’s figure comes to $273,329.40. Both of these scenarios assume that the plaintiff will retire at 65 years. Mr Dolman made calculations in court should the plaintiff retire at 70 years of age.
36 The defendant relied on the report of Mr B Flint of Cogent Management dated 9 January 2003 which assessed the plaintiff’s past economic loss at nil and future economic loss at nil. According to Mr Flint, the plaintiff’s estimated net weekly earnings were $322.00 per week but for the accident, which was derived from earnings of the year ending 30 June 1998, based on income split methodology. As a result of the new taxation regime commencing 1 July 2000, the plaintiff’s estimated net weekly earnings was $330.00, based on an income split methodology. Likewise, for future economic loss Mr Flint stated that the plaintiff’s estimated net earnings before net present value calculations was based on the plaintiff’s net actual estimated earnings of $391.00 per week offset against his estimated net weekly earnings of $330.00, and because the estimated actual estimated earnings are higher than the estimated net weekly earnings, the plaintiff’s future economic loss is assessed at nil.
37 Attard Nominees (Attards) income for the financial year ending 1998 (the accident occurred on 30 June 1998) was $56,997.00 which was almost $14,000.00 less than the income for the year ended 30 June 1997, namely $70,766.00. The plaintiff’s expert uses the 1997 as a basis for his calculations, because 1998 was the year he pursued the cabinet making business and had to buy material. According to Mr Dolman it was not a typical year. In 1999, the Attards’ income was now about the same as 1997, and in the year ended 30 June 2000 the Attards’ income peaked at $103,333.00. The plaintiff’s evidence was that the business was expanding and he no longer felt that he could carry out the cabinet making from his garage at Toongabbie, in part due to the effect the noise had upon the neighbours. As a result he purchased a property at Berkshire Park upon which he had built a large shed. He carried out light work involved in the construction of the shed. Photographs (12) depicting the inside of the shed and cabinet making equipment and process are shown in Ex B. At this time the plaintiff sold the Toongabbie property and moved house.
38 In December 2002 the plaintiff ceased carrying out work for Castrol because it was getting too much for his shoulder and his shed burnt down. After he rebuilt the shed he just could not do it anymore. It was getting too much (t 20.30).
39 Prior to the accident, the plaintiff’s wife gave a little assistance to the plaintiff with the assembly and construction of kitchen cabinets because the plaintiff could do it on his own and never did that much of it anyway (t 23). The plaintiff may attend the client’s premises to carry out the measurements for the new kitchen. The process of making kitchen cabinets starts with the delivery of large sheets of particleboard. The boards can be 1200mm wide by 2400 high. The plaintiff, with the assistance of his wife, cut the boards up into the prerequisite sizes. The cupboards are assembled on the bench and then put down onto the floor. When everything is ready, the doors are affixed to the cupboards. The cabinets are carried out to the trailer and transported to the customer’s place. The cabinets are then assembled in the kitchen.
40 Since the accident, the plaintiff has become aware that when he lifts the large sheets of plywood his left shoulder starts aching. He can lift one to three of these sheets, but if he is required to lift ten he has this problem. There is no problem with 600mm cupboards, but problems develop with the 900mm cupboards (t 23). He requires his wife’s assistance when the large sheets are cut into smaller sizes. This cutting process can take up to 1½ days for each kitchen. He needs his wife to assist him with the lifting of larger cupboards such as those the size of a pantry. He also requires her help when he has to deliver a kitchen to a customer’s house. At the customer’s house, the plaintiff needs his wife to help him affix the overhead cupboards and the large pantry type cupboards.
41 In about 2001 when the cabinet making process was relocated to the shed at Berkshire Park, the plaintiff’s wife commenced accompanying him for five days per week. The plaintiff works 7 days per week. They attend the shed from 7.30am until 7.30pm. They work Saturdays and Sunday. The plaintiff’s wife looks after her grandchild on Monday and Tuesdays. The plaintiff’s wife assists him on and off throughout the day, but on average she provides physical assistance for three to four hours per day (t 25).
Retirement age
42 The plaintiff’s evidence is that he would have worked until 70 years of age, as he did not intend to retire in a hurry. He intended to continue as a carpenter and doing odd jobs here. He was happy working long hours. He has no other real interest aside from his family.
43 In Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 24 McHugh J stated:
- “There is no reason why the plaintiff's impairment of earning capacity should be treated as ceasing at the age of sixty-five. However, the financial loss, which flows from that impairment in respect of the period beyond age sixty-five, is of a different measure from the loss for the period up to age sixty-five. It will be necessary to look at all the circumstances, including the intentions of the plaintiff, to determine what, if any, post-retirement remunerative activities the plaintiff would probably have engaged in if the accident had not occurred and for how long he would have continued engaging in those activities. Once that has been done, the court must determine the extent to which the plaintiff's capacity to engage in these activities has been impaired and the loss which flows therefrom.”
44 And in Dykstra v Head (1989) Aust Torts Rep 80-280 Samuels JA at 68,985 said:
- “It is not uncommon for plaintiffs to be asked specifically what they had in mind, and the answers may be accorded various degrees of weight. In a great many cases the plaintiff has probably never considered the matter, or did not until injury introduced a handicap which had not previously been contemplated.”
45 In Bridge Printery Pty Ltd v Jose Mestre [1999] NSWCA 342 at paras [4], [5] and [6], the Court of Appeal per Mason P stated that there are at least three reasons for discounting the weight of a plaintiff’s answer to the question “How long would you have worked if uninjured?” First, it is necessarily hypothetical. Secondly, the question is usually posed at a time well in advance of the date on which the plaintiff would be faced with the reality of retirement on pension or continuing to work. Thirdly, capacity to work is as relevant as intention to do so.
46 Mr Mestre was injured when he was fifty one and he gave evidence when he was sixty three, over ten years since had had last worked. Shortly before the accident, he had applied to join a superannuation fund and had nominated 65 as his retirement age. His stated intention to work until seventy because “money is never too much” was held to be of little weight in the circumstances. It was the cardiac condition and the need to treat it that persuaded Mason P that the Master erred in calculating future economic loss on the basis of retirement at seventy. It was his Honour’s view that the probabilities strongly support the “normal” age as the upper limit.
47 The plaintiff is now 51 years. He has always been a hard working man. He does not have any interests outside work and family. It is my view that when he reached the age of 65 years it was more likely than not, that he would not have continued to perform heavy physical activities on a fulltime basis. Had he not had the accident, it is more likely than not that between the ages of 65 and 70 years the plaintiff would have undertaken some smaller projects from time to time from home. He still will engage in some smaller projects which will be lesser in number than had the accident not occurred. I shall make some allowance for this.
48 I accept that the plaintiff is slower in production at work than he would have been had the accident not occurred. I also accept that the plaintiff now needs some assistance from his wife, as detailed earlier in this judgment. The plaintiff’s accountant has based his calculations on the 1997 income. The year 1998 would have been more appropriate. Further, the plaintiff’s cabinet making business is subject to fluctuations in demand. Whether or not the accident occurred, the fluctuations in demand for kitchen cabinets would have occurred. From time to time the plaintiff would have required additional labour to cope with the increased demands and deadlines. The plaintiff does not have any difficulty carrying out most of the work starting with giving quotations. Thus, I do not think that the plaintiff’s accountant’s approach should be adopted. Doing the best I can, in these circumstances, the best approach is to award a global sum to apportion the need the plaintiff has to employ additional labour for the next 14 years due to the injuries he suffered in the car accident. The appropriate sum is $80,000.00 for both past and future economic loss. I attribute $20,000.00 to the past and $60,000.00 for the future. I also allow a sum of $15,000.00 for his reduced earning capacity for the years when the plaintiff is aged between 65 and 70. The total of future economic loss is $95,000.00.
Interest on past economic loss
49 Interest on past economic loss is calculated at 10% for approximately 5.33 years and halved. This equates to $5,330.00. The plaintiff is entitled to interest on past economic loss and I allow the sum of $5,330.00.
Loss of superannuation benefits
50 Attard Nominees has been making superannuation payments on behalf of the plaintiff. I make an allowance for the loss of superannuation. The plaintiff would have the benefit of more superannuation had he not been injured. I assess this amount at $5,000.00.
Domestic assistance
51 Even though the plaintiff tendered two reports of Evidex (1 September 2003, 4 September 2003), the injuries sustained in the accident have not created a need for the domestic service to be provided to the plaintiff by his wife or a service provider. Hence I make no allowance for domestic assistance.
The plaintiff makes a claim for future hospital, medical, and pharmaceutical expenses. The plaintiff consults Dr Alam once a month at a cost of $45.00 per visit. Dr Alam provides neck and back manipulation which the plaintiff finds helpful. I am not satisfied that the plaintiff will continue to consult Dr Alam on a weekly basis for the rest of his life. As previously stated his wife massages his neck each week and uses Voltaren cream sparingly. Dr Alam, the plaintiff’s current general practitioner (report 24 January 2003), opines that the plaintiff will require intermittent pain killing medication for the expected flare ups.
Future treatment
52 As previously stated, the plaintiff still experiences nightmares concerning a car accident. Both Dr Mahoney and Mr Borenstein agree that the plaintiff has an adjustment disorder and recommend counselling. I considered that counselling may assist the plaintiff. The plaintiff’s evidence is that although he is not keen, he may attend counselling. It is now five years since the accident and as the plaintiff is still having nightmares, it is my view that some allowance should be made for this in accordance with Malec v Hutton (1990) 169 CLR 638. Dr Coffey has suggested that the plaintiff may require local cortisone injections in the future.
It is my view that additional physiotherapy and hydrotherapy are not necessary but an allowance for further treatment from time to time should be made. So an allowance should be made for painkillers, Voltaren, cortisone and counselling. Again the approach I have taken to adopt a global figure which I assess at $20,000.00.
53 Damages total $151,776.00. Costs are reserved.
Judgment
1. The defendants are to pay to the plaintiff the sum of $151,776.00 for damages.
2. Costs are reserved.
Non economic loss Past out of pocket expenses Economic loss Loss of superannuation benefits Interest on past economic loss Future treatment Total Damages
Last Modified: 11/11/2003
0
4
1