Baker v Smith Snack Food Company Ltd

[2009] NSWDC 11

CITATION:	Baker v Smith Snack Food Company Ltd [2009] NSWDC 11
HEARING DATE(S):	2 - 5, 13 February 2009
JUDGMENT DATE:	20 February 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for the plaintiff in the sum of $521,011.69
CATCHWORDS:	MOTOR ACCIDENT - "injury" - MOTOR ACCIDENT - weight to be attached to documents of Medical Assessment Service - EVIDENCE - admissions - effect of acknowledgment by workers compensation insurer
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Heuston v Yore Contractors Pty Limited (9 March 1992; BC9203270) Olsen v Identix Australia Pty Limited [2002] NSWSC 157 Pham v Shui [2006] NSWCA 373 Fox v Wood (1981) 148 CLR 438 Woolage v New South Wales [2001] NSWCA 256 Watts v Rake (1960) 108 CLR 158 Purkess v Crittenden (1965) 114 CLR 164
PARTIES:	David Baker (Plaintiff) Smith Snack Food Company Ltd (Defendant)
FILE NUMBER(S):	4820 of 2006
COUNSEL:	A Lidden SC with E Welsh (Plaintiff) L T Grey (Defendant)
SOLICITORS:	Bryden's Law (Plaintiff) Sparke Helmore Lawyers (Defendant)

JUDGMENT

Issues

1 David Baker says that on 27 February 2001, while he was at work as a warehouse operator in Smiths warehouse, he was involved in an accident, which exacerbated an injury to his left knee.

2 Smiths say that if there was an accident, first, it did not involve any breach of duty on its part towards Mr Baker, and, secondly, that even if there was a breach of duty, this was not causally related to Mr Baker's current condition.

3 Mr Baker has been assessed by the Medical Assessment Service as not crossing the threshold established by the Motor Accidents Compensation Act in a way that would entitle him to damages for non-economic loss. He does claim economic loss, including out of pocket expenses, past and future, loss of earnings and of future earning capacity, and the cost of domestic assistance, which has been provided by his wife and children.

4 Mr Baker is now 43 years old. He has been married since 1995 and has two young sons. His wife works part-time in retail sales. They are paying off a mortgage on their home, which has a garden and swimming pool. They have two vehicles.

Work history since February 2001

5 Since February 2001, Mr Baker has been able to do some work. Until February 2004, Smiths provided light work for him on a part-time basis, and the workers compensation insurer made up his pay to the amount he was receiving before his injury, but this did not include significant overtime for which he was being paid before his injury.

6 After Smiths terminated Mr Baker's employment, he was out of work for three months, but then qualified as a trainer of forklift drivers and worked in that capacity and in some other capacities. His first employer (AFT) employed him as a driver trainer for a little more than two years. That company then reorganised and Mr Baker was off work for some months until he obtained casual work as a forklift operator for about nine months. Since late May 2007 he has worked as a forklift driver trainer for TCP. He is currently working two shifts each week as a shift supervisor and is in charge of three other trainers. He is able to do this work, although because of the condition of his left knee, it is illegal for him to drive a forklift, because he cannot keep the whole of his body within the driver's enclosure. There is no evidence as to whether this was also the position before 27 February 2001. He has to drive with his left leg extending beyond the cabin because he cannot bend the knee enough. He is able to instruct and train the students. The students (normally up to 7) do a course, which normally lasts for three days. The last afternoon is taken up with an assessment conducted by assessors from WorkCover. The remainder of the course consists of classes in theory and in the practical operation of forklifts. Mr Baker does have some difficulty doing this work towards the end of the week, and gave evidence that he was apprehensive about changes to the system of qualification for forklift drivers, because this might require him to re-qualify, and he doubts that the condition of his left leg would allow him to complete the practical assessment.

Mr Baker's medical and work history

7 Mr Baker completed his School Certificate and then obtained work with a construction business owned by his family. He then found another position with another family business, which carried out screen printing. While he was in this work, he was involved in a serious motorcycle accident in 1983, as a result of which he lost his job. In the accident he broke his left tibia, fibula and femur. He was hospitalised for a long time and underwent a number of surgical procedures including bone grafts. After these injuries he was left with an impairment to his left leg. He did not have full flexion or extension in his left knee. However, he was able to lock his left leg in position, and to move about relatively freely. He could drive cars with a manual clutch, he could play touch football and soccer on a social basis, and he also played competition golf on a regular basis.

8 While he was working in the screen printing business he obtained a forklift driver's licence.

9 He was off work for nearly 2 years after the motorcycle accident. He then obtained various positions, including work as a concreter, installing fireproof walls, landscaping, labouring and truck driving. In about 1989 he began a series of jobs as a forklift operator/storeman and he continued to do this work, interspersed with periods of working as a labourer and similar manual occupations. He started work with Smiths in July 2000.

10 Mr Baker's evidence is that he was completely able to do all the work required of a forklift driver/warehouse operator, including some lifting and some bending, although he did have restrictions on the movement of his left knee. Before he was employed he was medically examined by Dr Perla, and was employed on the condition that his work did not involve heavy lifting or bending.

11 About Christmas 2000, Mr Baker and his family had a holiday in the caravan park at Lake Conjola. Late in December, while Mr Baker was walking near the lake, he and a companion crossed a boat launching ramp. The surface of the ramp was slippery and Mr Baker lost his footing, landing on his buttocks. He cannot recall the details of this incident. He says that he felt some pain in his left knee. He went into the water and stayed there for some time, walking towards the caravan park. When he emerged from the water at the caravan park, he got a cold can of soft drink can and applied this to his left knee. Later he returned to his campsite and put an ice pack on his knee. His wife does not remember the incident, and Mr Baker says that within a few days the effects of the injury had disappeared. He went back to work in January 2001.

12 Mr Baker's evidence is that while he was on holidays he had a conversation with another person about the possibility that acupuncture could provide relief and greater flexibility in his knee, and that some new technology was available. For this purpose he decided to seek advice from the family GP, Dr Sam Puglisi. He made an appointment to see Dr Puglisi. Mr Baker's evidence is that Dr Puglisi has now retired, but that the doctor was sceptical about acupuncture, and instead referred him to the orthopaedic surgeon, Dr Kirsh.

13 Dr Puglisi made some notes of a consultation he had with Mr Baker on 17 February 2001, that is before the incident at the distribution centre. These notes refer to the fall at the boat ramp and record that the doctor prescribed Celebrex, an anti-inflammatory medication. They also referred to Mr Baker's left knee and the problems with flexion. They record a referral to Dr Kirsh. These notes do not refer to acupuncture or alternative technology. Mr Baker's evidence was that Dr Puglisi told him that he did not take acupuncture seriously.

The incident of 27 February 2001

14 Mr Baker's evidence was that shortly before 5 p.m. on that day he was "picking" stock from the racks in the distribution centre. This meant that he had a list of the required items. He would walk along the rows of stock, pulling a pallet jack, on to which he would place the required items, which he would then take to the distribution area. He gave evidence about the layout of the distribution centre. There was also a photograph in evidence, which, although taken recently, shows the centre largely as it was in 2001. The stock is stacked on racks up to 5 m high. Between the racks there are aisles. Some of the aisles are intended to be used by warehouse operators using pallet jacks. Other aisles are designed for the exclusive use of forklifts, which are used to replenish the stock on the shelves from the rear. At right angles to these aisles there are cross aisles, some of which are intended for pedestrian use.

15 Mr Baker gave evidence that it was standard practice that when a forklift operator drove his machine up an aisle to a pedestrian crossing, the operator was required to sound the horn and bring the forklift to a halt, in order to avoid collisions with pedestrians. Mr Baker said that he learnt this during an induction course, which he did when he started work at Smiths. Mr Jones, who also gave evidence, confirmed this practice, but denied that he had ever undertaken an induction course. The practice was something that he had learnt on the job and by the exercise of commonsense.

16 Mr Baker's evidence was that on the occasion in question he came to the end of the aisle where he was working and, out of the corner of his eye, noticed a forklift driven by Mr Jones moving towards him. The evidence is clear that any person would not have seen the forklift until he was at the corner of the aisle and the access area. In cross-examination Mr Baker said that the forklift may have entered the access area, but in chief his evidence was that after he stopped, the forklift also stopped, about an arm’s length from him. Mr Baker was surprised because he had not heard any horn sounded. He stopped immediately, but the pallet jack continued to roll forward and struck him in the buttock. He moved rapidly sideways to the right, but did not fall, feeling some pain in his left knee. There was no collision between Mr Baker and the forklift, but as the legislation stood at the time, “injury” includes an injury suffered in the course of avoiding a collision.

17 Mr Baker said that he had a conversation with Mr Jones. He could not recall the exact content of the conversation, but he believed that he may have asked why Mr Jones had not sounded the horn. He says that Mr Jones apologised, and then drove the forklift truck away. Mr Baker decided to continue working, but he did report the incident. It is quite clear from the evidence that he did report the incident and that the operations supervisor made a record of it.

18 Mr Jones gave a different account. He said that he had stopped his forklift to replace a card in a cardholder. This was normal practice, as it was the way in which the operators recorded how the racks had been filled with stock. He says that while he was stationary, about 2-3m from the end of the aisle, he leaned forward. His evidence was that, as a result of this movement, the brakes on the forklift would have engaged automatically and there would have been an audible sound or click. He denies that the forklift was moving.

19 In a conversation with Mr Robert Hooper, the supervisor, Mr Hooper recorded Mr Jones as having apologised. In his cross examination Mr Jones admitted that he probably said something like "sorry mate" to Mr Baker, although he originally denied this.

20 Where there is a conflict between the evidence of Mr Baker and that of Mr Jones, I unreservedly prefer that of Mr Baker. Although Mr Hooper was not called to give evidence, the notes he made at the time are a business record and were admitted into evidence, and they are entirely consistent with the evidence of Mr Baker. Mr Jones, in my view, was an entirely unsatisfactory and unreliable witness. He asserted that he was not asked about these events until about five or six years after 2001, and his evidence in chief appears designed to exculpate himself from any accusation that he had not followed proper safety procedures. I cannot blame him for having indefinite memories of matters that happened so long ago, but I find that, for whatever reason, he was not making a serious or genuine effort to tell the truth.

Findings on liability

21 In my view the version of events given by Mr Baker was correct, and I accept it as the most accurate version of what happened. I find more probably than not that Mr Baker stopped suddenly and twisted because Mr Jones had driven his forklift in a way that did not comply with the standard safety procedures applying in the distribution centre. Mr Baker has discharged the onus of establishing on the balance of probabilities that an incident occurred on 27 February 2001 while he was at work, and, for reasons I shall give, that this incident was causally connected to his current physical condition. In this sense Mr Jones, and, vicariously, Smiths as Mr Jones’ employer, failed to take reasonable care to prevent injury to people in the position of Mr Baker. I find on the balance of probabilities that a breach of duty has been established, and that any injury suffered by Mr Baker as a result was an “injury” for the purposes of the Motor Accidents Compensation legislation as it applied at the time. It was not disputed that what the plaintiff alleged fell within the scope of that legislation.

22 There is no evidentiary basis on which I could find that Mr Baker failed to take reasonable care for his own safety.

Mr Baker’s present and future condition

23 The current condition of Mr Baker's left knee cannot, on any view of the circumstances, be regarded as solely the result of the incident at work on 27 February 2001. The issue is whether, and if so to what extent, the breach of duty on the part of Smiths has led to Mr Baker’s current condition. If the incident was a causal factor in Mr Baker’s subsequent condition, that is sufficient.

Dr Kirsh's evidence

24 Dr Kirsh provided a large number of reports and gave extensive oral evidence. I was extremely impressed with him as an expert witness. His answers were thoughtful and careful. He was in no sense an advocate for his patient.

25 When Mr Baker was originally referred to him, his recollection was that he was on holidays and that his locum Dr Lunz, a recently qualified orthopaedic surgeon, saw Mr Baker on three occasions. Mr Baker cannot recall Dr Lunz, although he believes that he may have seen another doctor at Dr Kirsh’s rooms on one occasion. There is one report in evidence from Dr Lunz, together with his handwritten notes, which form part of Dr Kirsh's records.

26 Apparently, Dr Lunz formed a working hypothesis that Mr Baker's pain was due to a muscular injury, and that there was no fluid or swelling in the knee. He did, however, refer him for a bone scan and an ultrasound. The radiologist's reports, particularly the ultrasound, did reveal the presence of fluid in the joint. Dr Kirsh formed the view that this was due to trauma. The plain x-ray, which was taken after the boat ramp fall, but before the work-related accident, did not show any such fluid, but the ultrasound, which was taken after the work incident, did. This led Dr Kirsh to the conclusion that any traumatic injury to the knee was due to the work-related incident. This view was strengthened by the history given to him by Mr Baker in respect of both falls. That history was consistent with the evidence Mr Baker gave in court. When he fell on the boat ramp, he said that both feet gave away from under him and he fell on his buttocks. In the course of the work related injury, there was no collision between Mr Baker and the forklift, and although there was a sudden twisting movement, Mr Baker did not fall to the ground. Dr Kirsh formed the view that this incident would have caused "torsion", and that it was therefore more likely to cause trauma.

27 Dr Kirsh was closely cross-examined about his conclusions. He did not depart from his original conclusions, although he did concede that it was not impossible that the boat ramp fall had caused greater pain, and pain which persisted for a longer time than he had originally thought.

28 Apparently, the first appointment with Dr Kirsh was on 2 March 2001. In the notes of this meeting, prepared by Dr Lunz, Dr Kirsh’s locum at the time, there is a reference both to the boat ramp incident in which Mr Baker recorded a history that he was unable to bear weight, and that the injury had improved, but that he was still unable to use the clutch of his car. There are slightly more extensive notes of a later accident (the warehouse incident) on 27 February 2001 where Mr Baker pulled up quickly and "same occurred again". Mr Baker now reported that he had pain all the time, and it caused him to wake at night. He reported that he was unable to work. On examination Dr Lunz found no effusion. There is a report of x-rays, and the treatment plan to continue the Celebrex and to order a bone scan. Dr Lunz saw him again on 12th March with the scan results. There was no effusion, a reference to the left "v l." and a plan for physiotherapy. A further note dated 23 March refers to an ultrasound suggesting a key and of "V lateralis", and a reference to an MRI scan. This is consistent with a tentative hypothesis formed by Dr Lunz that Mr Baker's pain was due to a problem with the muscle or the tendon.

29 Dr Kirsh's evidence was that when he returned from leave he reviewed the radiological studies and Dr Lunz's notes. He formed the view that there was some fluid in the joint. The plain X-ray did not reveal this, but the bone scan did. Dr Kirsh gave evidence that different types of radiological studies show different aspects of the body and are not directly comparable. His conclusion was that the presence of synovial fluid could only be the result of trauma.

30 The fresh history taken by Dr Kirsh the first time he personally saw Mr Baker was that the "boat ramp" injury settled within two or three days and that Mr Baker had returned to work. The doctor then took a detailed history of the incident in the warehouse.

31 Dr Kirsh's opinion, as expressed in his reports, was that the warehouse incident was responsible for the trauma. This was based on his interpretation of the radiological studies, and also on what he understood to be the circumstances in which the two incidents had occurred. He understood - and this is consistent with the account given on each occasion by Mr Baker - that Mr Baker had fallen on the boat ramp when both his legs gave way and he fell on his buttock. He understood that in the warehouse incident, there had been no collision or fall, but a twisting or torsion in the left knee. Dr Kirsh's opinion was that trauma to the left knee was much more likely to be caused by torsion than by the type of fall Mr Baker described on the boat ramp. In cross examination, Dr Kirsh conceded that it was possible that the boat ramp fall might have caused trauma, but as I understood his evidence, his opinion remained substantially unchanged and that the warehouse incident was the most likely cause.

32 Dr Kirsh was questioned extensively about Mr Baker's pre-existing knee condition. He said that following the arthroscopy and knee replacement which he had carried out on Mr Baker, the range of flexion and extension of Mr Baker's left knee had not changed significantly from the restrictions that had existed in, say, October 2000. Other aspects of Mr Baker's condition had changed, in that he was no longer able to do his work or carry out activities that he could do previously.

33 Dr Kirsh expressed the view, that if Mr Baker's condition had not been exacerbated, it was highly likely that he could have continued to work as a warehouse operator - that is, the work that he was doing before the exacerbation - until the age of 60 or 65.

34 Dr Kirsh is the treating medical practitioner. At all material times he was aware both of the boat ramp fall and of the warehouse incident. He was aware of Mr Baker's condition at all relevant times. In my view a court should be extremely cautious in rejecting the medical opinion of a treating practitioner, especially when it has been tested, as it was in this case, by vigorous cross examination. The other medical practitioners, whose opinions are relied on by Smiths, are not treating practitioners, and in most cases - especially the cases of Dr O'Keefe and the medical practitioners who prepared reports for the Medical Assessment Service or the Workers Compensation Commission - prepared reports for a purpose other than a medico-legal opinion to be used in these proceedings. The other reports relied upon by the plaintiff are the reports of Dr Conrad. These do not refer to the boat ramp incident, and for that reason should be given less weight than that of the opinion of Dr Kirsh.

Findings on causation

35 The plaintiff bears the onus of proof to show more probably than not that the exacerbation of his injury was the result of the work-related incident.

36 I find that the central thrust of Dr Kirsh's opinion, namely, that the exacerbation of Mr Baker's condition is due to the injury he received in the warehouse incident, is correct, and that incident and its consequences are a significant causal factor of Mr Baker's condition after February 2001. It appears that the fall on the boat ramp in December 2000, on the balance of probabilities, should be regarded as a minor incident, and, at its highest, its consequences are a further symptom of the ongoing injury and degenerative condition of Mr Baker' s left knee, which had existed to some degree since 1983. However, I conclude that it was one of several factors that led Mr Baker to consult Dr Puglisi early in 2001, though there were other factors. It would be consistent with what Dr Puglisi records in his notes for early February that Mr Baker complained of the fall at the boat ramp, but also that he wished to consider ways of making improvements to his knee. Either or both of these factors might have led the GP to refer him to the specialist, Dr Kirsh.

37 I also find to the same standard, that before both the boat ramp incident and the work-related incident, Mr Baker's ability to move his knee was limited. As Dr Kirsh said in his evidence, the degree of limitation varied from time to time. Nevertheless, it became more symptomatic after that incident and leads me to consider further questions in this matter.

38 I accept Mr Baker as an honest witness, who did his best to tell the truth. His recollection is incomplete, but he cannot be blamed for that. I accept that by the beginning of 2001, he was concerned about the restrictions on the movement in his left knee. The other evidence corroborates most of this evidence, both about the incident on 27 February 2001 and about his medical history. If there are inconsistencies between Mr Baker’s evidence in court and the histories given to the many doctors he has seen, they rarely deal with significant matters and may be described as memory lapses, which are quite understandable.

39 There is no evidence that at February 2001 his ability to play golf, to engage occasionally in games of touch football, or to play with his children had been more significantly impaired than had been the case of some years.

40 I find, on the balance of probabilities, that the fact that Mr Baker had chosen to see his general practitioner, Dr Puglisi, at this time was not in any way related to the incident at work. The visit may have been related or consequent to the boat ramp fall, which, although Mr Baker does not remember, certainly was discussed with Dr Puglisi, but the visit occurred some 6 weeks after that incident, which was not, in my view, a major factor in Mr Baker’s seeking medical advice. I accept his version of his reasons for seeing the doctor.

41 Mr Baker says that he felt pain, took some time off work after the warehouse incident, and treated his knee with ice packs and rest.

42 Smiths argues that the aggravation of Mr Baker's knee was a consequence of the boat ramp fall, rather than the warehouse incident. I would be satisfied, on the balance of probabilities, that the boat ramp fall caused some pain and swelling to Mr Baker's knee, but I find that it was not sufficiently severe to prevent him from returning to work, or even, on his evidence, from playing games at the caravan park and on the beach.

43 What the medical evidence does show it is that by the time Mr Baker was involved in the incident at work, there was a serious restriction on movement in his left knee, which appeared to be getting more severe. This was also the case before the boat ramp fall. This was either a result of the motor cycle accident and its consequences or of degenerative change due to some other cause.

44 The evidence is that, after the warehouse incident, there was a major change in Mr Baker's condition. He could not return to his ordinary work as a warehouse operator and was restricted to light duties. He was no longer able to drive a car with a manual clutch. He stopped playing golf and his other physical activities. The inference I draw is that the sudden and noticeable change in his condition was the result of the exacerbation of his knee condition caused by the incident at work. I find that the incident at work was a significant causal factor in his current condition.

45 Two other matters reinforce my conclusion. The first is that the notes made by Mr Hooper, the operations supervisor, immediately after the warehouse incident, recorded that Mr Jones acknowledged the incident. This expression is rather cryptic, but it does provide corroboration of the plaintiff's evidence and does constitute an admission by the defendant that there was an incident in the workplace, which is not consistent with the evidence given by Mr Jones, and is consistent with that given by Mr Baker. The second matter is that the workers compensation insurer, who for this purpose represents Smiths, signed an acknowledgement that Mr Baker suffered an injury at work, and continued to pay makeup wages, at least, to Mr Baker until shortly before the commencement of the hearing in this matter. This is not an admission of liability, but it is an admission that there was an incident in the workplace in the course of which Mr Baker suffered an injury. Smiths’ case, as I understand it, is that there was no injury at the warehouse. See Heuston v Yore Contractors Pty Limited (Hunt CJ at CL, 9/3/1992; BC9203270), and in this case the defendant did not offer any explanation, so the admission stands: see per Einstein J in Olsen v IdentixAustralia Pty Limited [2002] NSWSC 157 at [192].

46 Smiths argues that I should agree with the Medical Assessment Service that the condition is entirely due to the pre-existing condition. I am unable to accept that contention, because the evidence shows that in February 2001 there was a marked change - indeed, a marked deterioration - in Mr Baker's condition, and that the most likely reason for this was some trauma to the knee.

47 The defendant tendered a number of reports from the Medical Assessment Service. That service determined that the plaintiff did not cross the threshold established by the Motor Accidents Compensation Act to entitle him to an award of damages for non-economic loss. The plaintiff does not challenge that assessment and, indeed, could not do so, because of s 61(2). The plaintiff contends that the assessments are irrelevant to any issue in these proceedings. This is so even though s 61(3) provides that the certificate can be non-conclusive evidence of matters it contains.

48 The certificate relates to the degree of whole person impairment, and the plaintiff says it cannot be of great or any relevance to any other issue in the proceedings. Those issues include causation and the degree to which the plaintiff was affected by any pre-existing condition.

49 The Court of Appeal considered a similar issue in Pham v Shui [2006] NSWCA 373. In that case the Medical Assessment Service had issued a certificate upon which a party sought to rely in relation to an issue of causation. After considering previous decisions, Santow JA, with whom the other members of the court agreed, made some general comments about the use of certificates prepared for a quite separate purpose. He said, at [97]:

"If it be capable of being non-conclusive evidence in the latter category, it must even so be used with extreme caution; that is especially given the very different methodology for assessing degree of impairment under Pt 5.3, to which the certificate is directed."

50 It is necessary to exercise extreme caution in the use of this material. It is logically possible that it might rationally affect the decision of an issue of the case, and therefore must be considered and is admissible, but the weight to be attributed to such a certificate is a matter to be considered in the light of all the other evidence, after the exercise of extreme caution. Smiths rely primarily on the certificate issued by the review panel. This certificate was issued only on the basis of documentary evidence. The panel did not physically examine or interview Mr Baker, and it relied materially on a number of certificates, which were prepared for the purpose of determination of a whole person impairment, rather than the issues that I have to consider in this case. Further, neither the review panel nor the medical assessors had the benefit of Dr Kirsh's oral evidence, particularly his cross-examination, to which I attach significant weight. In the circumstances, while I have considered the certificates issued by the Medical Assessment Service, and particularly by the review panel, I cannot accept the conclusion that the review panel reached in relation to causation, in particular the conclusion that the injury in the warehouse had no more than a negligible effect on Mr Baker's overall condition. For the reasons I have given, and in particular, because of the marked changes in that condition which were present, as I conclude from the evidence after, but not before, the warehouse incident, I find, on the evidence before me, that that incident was a significant cause of Mr Baker's condition.

What is the extent of Mr Baker's incapacity?

51 In evidence there are extensive reports from various treating doctors, medico-legal experts, allied health professionals and rehabilitation providers. All these are consistent with Mr Baker's own evidence that he is able to perform his current duties, and is not, and is unlikely ever to be, capable of working in many of the roles that he fulfilled before the accident. He is certainly not able to do the physical work of a warehouse/forklift operator. His evidence was that although he obtained his School Certificate, and is able to do some clerical work, such work would result in a significant loss of earnings.

52 Mr Baker's unchallenged evidence, and that of his wife, is that before February 2001, although to some extent impaired in his knee movements, he was able to mow the lawn, service motor vehicles, do gardening work and household maintenance. Since February 2001, the extent to which he is able to do those tasks has been extremely limited, and his wife and family in fact undertake the whole of the tasks or complete tasks that he is unable to complete. Both Mr and Mrs Baker accept that if paid assistance were available they would accept it.

53 I find that Mr Baker has not totally lost his capacity to earn. Given the unchallenged evidence that he gave about overtime before February 2001, and the evidence provided by tax returns, it is clear that he has lost significant earnings between the date of the incident and today, and that his future earning capacity is also significantly restricted.

Damages

54 The plaintiff has tendered a schedule of actual and comparable earnings for the past seven years. The amount the plaintiff has lost averages $340 per week, so that the past economic loss for eight years amounts to a total of $141,400. The defendant mathematically agreed to this amount if I should find for the plaintiff on liability. The Fox v Wood component is agreed at $23,120.

55 Past out-of-pocket expenses are also mathematically agreed in the sum of $68,094.69.

56 The plaintiff claims damages for loss of future earning capacity, future out-of-pocket expenses, and past and future domestic assistance. I propose to consider each of these heads of damage in turn.

57 The evidence is that where a plaintiff of Mr Baker's age is required to have a knee replacement, as he did, the replacement joint has a limited life. Dr Kirsh estimated a life for each replacement of between 10 and 15 years. It follows that Mr Baker will require at least two and possibly three further knee replacements if he lives to the expected age. I am satisfied that the exacerbation of the knee injury was a major causal factor as to why Mr Baker required the knee replacement which Dr Kirsh performed. Therefore, he is entitled to recover the cost of these procedures. The estimated cost of each procedure is estimated at $10,000, and in addition Mr Baker may require other medical treatment, and analgesics. I propose to allow a sum of $35,000 for future out-of-pocket expenses.

58 Both Mr and Mrs Baker gave evidence that Mr Baker Is no longer able to work in the garden, mow lawns, or service motor vehicles in the way that he did before February 2001. This work is now being performed on a gratuitous basis, but the evidence is that it only takes two or three hours per week. There is no claim for recovery of past gratuitous domestic assistance, but there is a claim for such assistance in the future. I am prepared to allow a sum, calculated on the basis of a figure of $35 per hour, for two hours each week for gardening and home maintenance, and one hour for vehicle maintenance, for the remainder of Mr Baker's expected life (37.6 years; 5% multiplier 902). The amount is $99,810 ($35 X 3 X 902 = $99,810).

59 The question of loss of future earning capacity was hotly contested and is more difficult. Mr Baker gave evidence that he was anxious about the future of his employment, first, because of apprehended changes in the industry, particularly possible changes in the requirements to obtain a forklift operator's licence, and secondly because of his own physical condition. The evidence is quite clear that at present Mr Baker is quite capable of doing the work he is currently employed to do, on the basis of two shifts per week. There is no medical evidence that would convince me, on the balance of probabilities, that his capacity to do this work is likely to be reduced. The evidence about changes in the requirements for an operator's licence, is at best, speculative. In view of all the evidence, I cannot find any reason to suppose that Mr Baker will be unable to work in his present capacity, subject to the ordinary vicissitudes of life, until he reaches the age of 60 or 65. Because of the nature of his employment I find that the most likely age at which he would cease working is 60.

60 Undoubtedly, in view of the fact that since 2001, Mr Baker's actual earnings have been significantly reduced, I find that his capacity to earn in the future is also reduced, but not by the amount which his counsel suggested. I find there is no evidence which suggests that his loss of earning capacity is any more than his average past loss of earnings, that is the sum of $340 per week net, and his damages for loss of future earning capacity will be based on that figure.

61 Although I accept Dr Kirsh's evidence that Mr Baker is likely to keep working as long as he is physically capable, because he clearly enjoys his work and is psychologically far better while he is working, the evidence is clear that the pre-existing degenerative condition in Mr Baker's left knee, even in the absence of the exacerbation of the injury in the warehouse incident, more probably than not, would have caused him to stop working earlier than would have been the case if he did not have the pre-existing condition. In Woolage v New South Wales, [2001] NSWCA 256 the Court of Appeal approved the principle that in such circumstances, even when it cannot be shown that, but for the wrong the subject of the proceedings, the plaintiff would have ended up in the same condition, (Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164), in cases where there is a pre-existing injury which possibly may reduce the plaintiff’s working life, it is appropriate for a court to discount damages for loss of future earning capacity for the vicissitudes of life by a percentage that is higher than usual. In this case, I propose to discount the damages by a figure of 25% on the basis that I have outlined.

62 The damages for loss of future earning capacity is $153,587, calculated on the basis of $340 X 602.3 (5% multiplier for 17 years) X 75% = $153,587.

63 Accordingly, there will be a verdict for the plaintiff in the sum of $521,011.69.

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