Baker v Tolsat P/L
[2002] NSWSC 407
•10 May 2002
CITATION: Baker v Tolsat P/L [2002] NSWSC 407 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20207/2001 HEARING DATE(S): 19 March 2002 JUDGMENT DATE: 10 May 2002 PARTIES :
Tolsat Pty Limited t/as
Mitchell Stanley Baker
(Plaintiff)
Everson Wholesale Meats
(Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr P Doherty
Mr G Charteris
(Plaintiff)
(Defendant)SOLICITORS: Garrett Walmsley Madgwick Lawyers
P W Turk & Associates
Port Macquarie
(Plaintiff)
(Defendant)CATCHWORDS: Personal injury - negligence - damages CASES CITED: Purkess v Crittenden (1965) 114 CLR 164
Jeffries v Roads & Traffic Authority of NSW (NSWCA, unreported 28 November 1997)
State Government Insurance v Oakley (1990) Aust Tort Reports
Van Gervan v Fenton (1992) 175 CLR 327
Sullivan v Gordon (1999) 47 NSWLR 319
Malec v J C Hutton Pty Limited (1990) 169 CLR 638DECISION: See para 50
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
MASTER HARRISON
JUDGMENT (Personal injury; negligence;20207/2001 - MITCHELL STANLEY BAKER v
TOLSAT PTY LIMITED t/as EVERSONS
WHOLESALE MEATS
damages)
1 MASTER: The plaintiff seeks damages for a personal injury sustained in an accident that occurred during the course of his employment with the defendant. The accident occurred on 25 November 1998. The plaintiff claims that the defendant was negligent and breached its contractual and statutory duty. The defendant denies negligence.
2 The plaintiff was born on 1 November 1962 and is currently 39 years of age. The plaintiff attended school in Kempsey until Year 9 of high school when he was expelled for fighting. He described himself as a good student. After the plaintiff left school he obtained employment as an offsider to a mechanic. He also performed some labouring work in potato planting and boat building. His wife, Jennifer Waters described her husband as easy going prior to the accident. The plaintiff and his wife have been together for 16 years and have two children.
3 The defendant operates an abattoir service known as “Everson Wholesale Meats” at premises situated at 60 Collombatti Road, Frederickton, New South Wales. Between 1990 and 1996 the plaintiff was employed by the defendant as a slaughterman. He worked in the abattoir on the “kill” floor and boning room. He was involved in the slaughtering of animals, working in the boning room, slicing meat, gutting the cattle and trimming the bodies of meat. The plaintiff was retrenched for a short while in 1996. On 19 February 1997 he was re-employed by the defendant as a slaughterman. He resumed worked in the kill room and boning rooms.
4 It is convenient at this point to record that both the plaintiff and his wife gave evidence and were cross examined. I observed them closely while they gave evidence and formed the view that they were both truthful witnesses. The plaintiff was cross examined about a prior injury to his lower back but does not recall this injury. The plaintiff admitted that he has had about six visits to a chiropractor since 1988 up until 1996. He remembers having a shoulder problem. He may have attended the chiropractor on two occasions in relation to his back although he could not be sure. However, any injury the plaintiff may have had to his back never stopped him from working (t 16). The plaintiff said that he may have had a twinge here and there. This is largely consistent with Dr Morse (1 February 2002, p 4) reporting that the plaintiff told him he had attended a chiropractor for twinges in his back first in 1988 and then on a number of occasions in the 1990s, the last in 1996. He reported that he would have some treatment and recover and it did not affect his work or other activities. The plaintiff’s evidence was that he had always worn a brace when performing heavy work but conceded that he recommenced work as a slicer in the boning room as it was less stressful on his back (t 17). Nevertheless, he actually worked in the boning room and the kill floor (t 17). Later in cross examination the plaintiff said that he might have mentioned that he wore the kidney belt to Ms Everson because of an injury to his back. I accept that prior to the accident the plaintiff may have had an occasional twinge in his back but this did not prevent him from working.
The accident
5 On 25 November 1998 the plaintiff was cleaning up the “kill room”. He was sweeping the floor to clean up fat and meat pieces in preparation for the steam cleaning of the floor. There was a tub in the corner of the room which was about two feet long by three feet wide and about one foot high, full of metal hooks. The plaintiff had some time previously seen this tub being moved around on a trolley by the “hook bloke”. However, there was no trolley available on the day of the accident. The plaintiff was attempting to move the tub on the floor from the corner of the room so that he could sweep and clean debris from underneath it. The floor had been treated with a surface coating that endowed it with improved slip resistance. The bottom of the tub had a large waffle pattern with sharp raised edges (Adams p 3). The plaintiff bent down and gave the tub a pull when he twisted his back and had instant pain to his legs which took his legs from under him (t 3). He found himself on his knees. He was in excruciating pain and laid across the tub (t 4). The plaintiff’s description of the accident is consistent with the employer’s report of injury (Ex A, doc 1). The plaintiff’s evidence was that normally in a day 64 forequarters of meat moved along the chain and each forequarter was attached to the chain by a hook. After the forequarters were taken off the hooks and processed the hooks were placed in the tub. Each hook weighed 500 grams. Thus the tub would have weighed around 32 kilograms.
6 The plaintiff’s fellow employee “Flewy”, who was also cleaning the floor, saw the plaintiff lying across the tub and went to his assistance. Flewy tried to get the plaintiff back on his feet and grabbed him by one arm and tried to lift him up but was unable to do so. The supervisor “Morrie” came over to assist. They both lifted the plaintiff to his feet. Morrie lifted the plaintiff from the back and Flewy got in front. They lifted the plaintiff back to his feet and the plaintiff stood gingerly leaning on the table. He was in a lot of pain.
7 The plaintiff alleges that the defendant breached its duty and obligations by firstly, failing to provide adequate or any proper equipment for the performance of the tasks as directed by the defendant; secondly, failing to give any or any adequate instructions to the plaintiff to perform the task as directed; thirdly, failing to provide any or any adequate supervision of the plaintiff in performance of the task as directed; fourthly, exposing the plaintiff to a risk of injury which could have been avoided by reasonable care on the part of the defendant; fifthly, failing to limit the weight of the tub by using a smaller receptacle in the circumstances; and sixthly, failing to ensure enough staff were employed to assist the plaintiff so as to minimise the risk of injury. As a result of the defendant’s negligence and breach of its duties and/or breach of its statutory obligations, the plaintiff has suffered injuries, loss and damages.
8 It was reasonably foreseeable that there was a real risk of injury to the plaintiff’s back if he was required to bend and push a tub full of metal hooks which would weigh around 32 kilos across a non-slip floor. I find that it was reasonably foreseeable that there was a real risk of injury.
9 The plaintiff gave evidence that he did not receive any training and/or instruction on safe handling or lifting of heavy objects while employed by the defendant. He had never attended a course on these topics.
10 Dr Neil Adams in his report dated 1 February 2001 (Ex C) canvassed the possible responses to the foreseeable risk of injury. The defendant did not serve an expert’s report. As a response to foreseeable risk the preventative measures that could have been implemented are firstly, through appropriate direction or supervision the employer could have ensured that the appropriate trolley was always placed in a position in preparation of the day’s work so that the used hooks could be deposited in the trolley; secondly, in accordance with the established work practice relating to the movement of tubs into which fat was thrown at the slicers’ work station, the employer could have directed that if a tub containing hooks was to be moved it must be moved between two workers; and thirdly, the plaintiff should have been given thorough training, supervised practice and appropriate education in relation to safe lifting and manual handling techniques. Included in the training would have been information that would have enabled the plaintiff to evaluate for himself the risk of injury inherent in any task and would have empowered him to refrain from undertaking a task that he could evaluate as holding too great a risk of injury. Each of these alternatives is a cheap and practical response to the risk. A reasonable person, a person in the position of the defendant would have adopted any of these alternatives as a response to the risk. I find that the defendant breached its duty of care to the plaintiff and was negligent. At the hearing no allegation of contributory negligence was made.
Assessment of damages
Non Economic Loss
11 The plaintiff submitted that 45% should be awarded whereas the defendant asserted that the figure should be 30-35%.
12 The plaintiff relied upon the reports of Dr Kleinman dated 21 December 1998, 18 February 1999, 23 February 1999, 1 March 1999, 29 April 1999, 7 May 1999, 29 June 1999, 23 August 2000; Dr Allan dated 1 December 1998; Dr Graham dated 27 January 1999; Dr Pollack dated 24 February 1999, 28 April 1999, 29 June 1999, 27 October 1999 and 5 June 2000; Dr Llewellyn dated 26 May 1999 and 11 July 2000; Dr Davis dated 17 December 1999; Dr McMahon dated 31 January 2002; Dr Morse dated 1 February; and Dr Tchan dated 12 March 2000. The defendant relied upon medical reports from Dr P Limbers, orthopaedic surgeon, dated 7 October 1999, Dr T Parameswaran, orthopaedic surgeon, dated 6 December 2000, Dr J Guest, consultant surgeon, dated 12 December 2000 and Dr F Machart, orthopaedic surgeon, dated 23 October 2001.
13 In about 1980 the plaintiff had a motor cycle accident and suffered a serious compound fracture to his leg. It took 18 months for it to heal but left him with a shortened leg. This has meant that he had to wear orthotics. He had a prior work injury where he suffered third degree burns to his foot and was off work for some time but this resolved. The plaintiff also had a prior shoulder and collar bone injuries. I have already mentioned a prior back injury. All of these injuries had resolved and had no significant effect on his life nor his ability to work.
14 On the day of the accident, the plaintiff attended Kempsey medical centre. His general practitioner Dr Ronald Smith referred him to a chiropractor for treatment. This treatment did not help. On 7 December 1998 the plaintiff’s general practitioner gave him an injection of Celestone Chronodose and Marcain local anaesthetic which provided some relief for a few days.
15 Following a CT scan, he was referred to Dr Kleinman, an orthopaedic surgeon. On 23 February 1999 Dr Kleinman performed a lumbar laminectomy and diskectomy in which an L4/5 disc excision was removed. The plaintiff spent four days in hospital. After the operation he was in severe pain but eventually the operation “straightened him up”, as prior to the operation he was “getting around bent over” (t 6). The plaintiff was bedridden for a while and his wife and daughter Kylie waited on him hand and foot. After discharge the plaintiff commenced physiotherapy and hydrotherapy treatment, in addition to attending a clinical psychologist for relaxation. Although this treatment relieved some symptoms, the plaintiff continued to experience lower back symptoms. By this time, the plaintiff had become accustomed to taking Valium, Prothiaten, Brufen and Panadene Forte as maximum doses. He became aggressive and took his aggression out on his family. As the plaintiff stated “he was not going too well” (t 8.20). He had given serious consideration to killing himself.
16 However by July 1999 the plaintiff had become depressed and his condition had deteriorated. Dr Morse, psychiatrist, diagnosed him as suffering from a quite marked adjustment disorder with depression and anxiety and drug dependence. The plaintiff was referred to the Royal Newcastle Hospital Pain Management Clinic where he remained an inpatient for three weeks between 25 July 1999 to 12 August 1999 undertaking a course in pain management. At this time, his wife described him as being angry, yelling and screaming a lot. According to her he had lost the plot (t 38). The plaintiff’s evidence was that his condition improved after this course. The plaintiff said that this pain management course saved his life. However, he was still hobbling on a walking stick. This assisted in weaning him off most of the drugs with the exception of digesics and Celebrex (now Byrox) which he continues to take.
17 From these medical reports, it is common ground that as a result of the accident the plaintiff was rendered not fit to perform heavy labour. The defendant submitted that the plaintiff already had a pre-existing back injury which equally contributed to his back condition and rendered him not fit for his pre-accident employment nor any type of labouring work. According to Dr Kleinman, the plaintiff’s operating surgeon, the plaintiff needed to be retrained for an office job (report 1 March 1999). The plaintiff is unfit for lifting weights of any more than 15 kilograms, repeated bending or standing for a prolonged period of time (reported 29 April 1999).
18 However the defendant asserts that the amount of damages awarded to the plaintiff should be reduced by 50%. This reduction is sought on the basis that the plaintiff suffered from a pre-existing back condition which manifested itself in occasional “twinges” and contributed to the incapacity he now suffers. The correct approach to reduction of damages for incapacity caused wholly or partially by a pre-existing condition is set out in Purkess v Crittenden (1965) 114 CLR 164. In that case, Barwick CJ, Kitto and Taylor JJ stated the principle as follows:
- “…where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant” (at 168).
19 Their Honours continued that it is not enough for the defendant to merely suggest the existence of a progressive pre-existing condition, or a relationship between any such condition and the present incapacity. In order to make such an assertion, the defendant must lead evidence which establishes with a reasonable degree of precision the extent of the plaintiff’s pre-existing condition and it’s likely future effects, apart from the result of the defendant’s negligence (at 168) – see also Jeffries v Roads & Traffic Authority of NSW (NSWCA, unreported 28 November 1997). Jeffries cites State Government Insurance v Oakley (1990) Aust Tort Reports para 81-003 with approval.
20 In the present case, the defendant has not led evidence to establish the precise nature of the plaintiff’s pre-existing condition, nor has it established the likely future effects of that condition. Indeed the defendant’s medical experts, with the exception of Dr Machart, conclude that the plaintiff’s incapacity is wholly attributable to the work-related injury, and not affected by any pre-existing condition. I prefer the majority opinion.
21 Dr Graham, occupational physician, opined (report 27 January 1999) that the changes at the lumbo sacral were old and probably not contributing problems. Dr Graham stated that the plaintiff was “quite unfit” for work and the long term prognosis for returning to his pre-injury duties is pretty guarded.
22 Dr Limbers, Dr Parameswaran and Dr Guest are all in agreement that the plaintiff’s impairment was entirely due to the accident and not due to any pre-existing aggravating condition, nor any constitutional condition. It is only Dr Machart who supports the defendant’s position in opining that only half the plaintiff’s impairment was due to the accident, and half was the result of degenerative changes which were evident on early x-rays and unrelated to the accident. The post accident x-ray (report of 1 December 1998) refers only to early osteophytic lipping being present in the lumber vertebral bodies. None of the defendant’s doctors considered the plaintiff fit to return to his pre-injury employment. It was common ground that the plaintiff was unfit for labouring duties, or work involving heavy lifting or repetitive bending, but was fit to perform restricted sedentary work. I prefer this evidence to that of Dr Machart.
23 The defendant submitted that the pain the plaintiff experiences in his groin and right testicle are caused by functional overlay and will resolve. However Dr Pollack, director of Rehabilitation Medicine at Newcastle Hospital, has a different view. Dr Pollack says that these symptoms are not uncommon and arise from L4/5 disc and/or joint (report dated 28 April 1999). The plaintiff has developed serious sexual problems as a result of the accident. Dr McMahon (report dated 31 January 2002) is of the view that the plaintiff has sustained a 75% permanent loss of function of his sexual organs and it is wholly attributable to the injury. The plaintiff experiences chronic pain and this has had a serious impact on his sexual relationship with his wife. Dr McMahon, whose view I accept, does not say that the plaintiff’s problem in this area will resolve. This difficulty will be reflected in my assessment of non economic loss.
24 The plaintiff has lower back pain and pain which radiates into the left leg and he gets pain in the right groin. The pain varies, depending on what he does but is present every day. There is pain radiating across his belt line. If the plaintiff is in any way active generally he suffers more severe pain and there is restriction in what he can do for a period. There is marked restriction on bending and lifting and twisting. The plaintiff cannot stand or sit in the one position for very long. After a while the plaintiff found that he did not derive any benefits from physiotherapy and hydrotherapy. He maintains his condition by doing one hour’s exercise every morning. The plaintiff gave evidence that his condition has stabilised. The symptoms that he suffers from are not getting any better nor any worse (t 21).
25 Since the accident the plaintiff is far less outgoing and less involved with people. He was always willing to have a go at anything. This is partly because he cannot get out and do things but partly due to a change in his feelings about himself, with lowered self-confidence and self-esteem. He still gets irritable and cranky from time to time if the pain is severe, though it is nowhere near as bad as it was and he tries to keep it under control and not blame others for the way he is. Because of the plaintiff’s physical impairment and disabilities he is unable to carry out heavy cleaning tasks, unable to tend to his household and gardening duties. I shall refer to this in more detail later in this judgment. Nor can he help his mother with the maintenance of her house and he finds this frustrating and upsetting. He gets his young nephews to do this work and he supervises it. He can still go fishing but not horse riding. The plaintiff’s wife gave evidence that the plaintiff’s sleep is disturbed and he rarely gets more than three or four hours a night. He has difficulty getting in a comfortable position and he wakes up due to the pain, his leg goes numb and he tends to stay awake for prolonged periods.
26 The plaintiff can drive a motor vehicle but is limited in how far he can drive, requiring rest every 45 to 50 minutes. He still picks up his children from school and takes them to sporting activities. He can still go fishing but not as often as before. Taking all the foregoing into account I assess the plaintiff’s non economic loss at 45% of a most serious case. This equates to $104,580.
Out of pocket expenses
27 Out of pocket expenses have been agreed at $60,755.20.
Fox v Wood
28 The Fox v Wood component has been agreed at $3,619.88.
Past economic loss
29 Past economic loss has been agreed at $73,525.00. At the date of the injury the plaintiff was earning $433.20 nett per week.
Past superannuation loss
30 Past loss of superannuation is calculated at 8% on $550 gross is $7,788. I allow this amount.
Future loss of earning capacity
31 The plaintiff submitted that he has almost no residual earning capacity and claims $450 nett per week whereas the defendant viewed the plaintiff’s loss of earning capacity at $150 nett per week.
32 The Commonwealth Rehabilitation Service arranged a five week traineeship with a lawn mowing service company in Port Macquarie doing simple repairs and maintenance and work two days per week for four hours per day. On about the third or fourth day he was there, he was shoving a lawnmower around a bit and it irritated his back so much that he had a couple of days off (t 12). The plaintiff was also required to travel from Kempsey to Port Macquarie and return and when he arrived home he was pleased to be able to lie down. His legs would be numb. He completed the five week course but was not offered a job.
33 The plaintiff said he attended TAFE in 2001 to do Year 10. He has two subjects to complete. He had problems with concentration, pain and so he fell behind in the subjects. The plaintiff has had literacy difficulties and required special tuition which was helpful. He had problems with the keyboard because he had never used a computer before. He would like to return and finish Year 10 but does not know if he will be able to. The plaintiff is applying to do a small engine course at Kempsey TAFE and hopes he can do it and that his “body will stand up to it”. He would like to get a job repairing and servicing small engines, such as motor mowers etc.
34 The plaintiff is 39 years of age. The plaintiff is unable to perform heavy labour so is unable to return to work in the abattoir. There was no suitable lighter work available with his former employer. A few months after the accident the plaintiff returned to work for a few hours but he could not carry out the requisite duties. Dr Llewellyn (report dated 26 May 1999) confirmed that he had toured the work site and discussed duties with the employer and found it apparent that there were no suitable duties available for the plaintiff to undertake. Given his level of education, difficulties with literacy, lack of computer experience, lack of other training and education, it will be difficult for him to retrain for sedentary type occupations. Nevertheless, the plaintiff has made genuine attempts to be retrained and rehabilitated to do the work suitable to his physical condition. There is a lack of availability of work in the Kempsey area. The plaintiff will have on-going problems in finding suitable employment especially as he cannot sit or stand for long periods. It is my view that the plaintiff would not be fit to work on a full time basis. He may be able to work a few full days per week or limited hours on a five day basis.
35 It is my view that had the accident not occurred the plaintiff would have continued in this or similar employment until retirement age. Not surprisingly, the report of the Vocational Capacity Centre dated 6 November 2001 concluded that the plaintiff is not capable of returning to his pre-injury job. In accordance with medical opinions referred to earlier the Vocational Capacity Centre’s medical assessment found that the plaintiff was unfit for heavy manual work involving heavy lifting or excessive bending, but was fit for light to moderate physical work. As previously stated I accepted this view.
36 The vocational assessment mentioned that the plaintiff was most suited to work in the Clerical, Sales and Service Workers, Trades and Related Workers and Intermediate Production and Transport Workers categories of the Australian Standard Classification of Occupations. A number of specific positions were suggested, with the nett pay ranging between $362.70 and $484.70 per week. The Commonwealth Rehabilitation service vocational assessment report dated 8 December 1999 recommended three areas of employment suitable for the plaintiff, namely light engine and vehicle mechanics, joinery light woodworking and factory operator. The plaintiff thinks that he could do some sort of mechanical repair work or work in a service station, or possibly a forklift driver although he has never actually driven one (t 28). Taking the foregoing into account I assess the plaintiff’s future loss of earning capacity at $320 nett per week (x 760.0 multiplier). This equates to $243,200 less 15% for vicissitudes equals $206,720.
Future superannuation loss
37 The plaintiff claims 9% on $550 gross which equates to $32,558. As I have only allowed a loss of $320.00 nett per week ($375 gross per week) the future loss of super is $375 x 9% x 760.0, which equates to $25,650.
Past and future domestic assistance
38 The relevant principles were restated by the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319. To determine the applicable amount to be awarded for home care services it has to be identified which services the plaintiff would reasonably need, as a result of the defendant’s wrong, or expressed another way, the plaintiff is to be compensated for the loss of his capacity to look after himself which was caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327.
39 In her report dated 12 March 2000, Heather Tchan, occupational therapist, records the plaintiff’s past care needs. For the period from 25 November 1998 until 28 February 1999, the plaintiff claims 13 weeks (less hospital) is 10 weeks of care. During that time, the plaintiff was on bed rest for one month. He had two admissions to hospital for pain and one admission for his operation. His wife and family including his mother cared for him. He could not drive. He needed help in the shower and needed help with all dressing and hygiene activities. He could no longer perform his share of the cooking. Each week within that period, 28.5 hours were expended in caring for the plaintiff. At a rate of $16 per hour, this amounts to $4,560. I allow this amount.
40 For the 21 weeks from 1 March 1999 until 31 July 1999, Ms Tchan reports that the plaintiff required 20 hours per week of care as he was not coping with his pain and became depressed and unable to participate fully in family life and chores. At a rate of $16 per hour, this amounts to $6,720. I allow 10 hours per week for that period. That equates to $3,360. The period from 12 August 1999 to date the plaintiff claims 10 hours per week in respect of that period for occasional care with cleaning and preparing meals, and with maintenance tasks. The plaintiff is and remains independent in personal hygiene and daily living. The plaintiff has been rendered unable to mow the lawns or dig in the garden as he did prior to his injury. The yard is large as the house is built on between two and three blocks. In addition, he states that he is sometimes unable to assist with the cooking and washing up, depending on the condition of his back. I allow 6 hours per week for this period which equates to 140 weeks x 6 at $17 equates to $14,280. In total, this equates to $22,200 for past domestic assistance.
Future Domestic assistance
41 The plaintiff claims 10 hours per week * 909.9 @ $24 per hour which equates to $218,376. The defendant submitted that 6 hours at $17 (the statutory rate for gratuitous services) is appropriate.
42 Heather Tchan occupational therapist in her report dated 12 March 2000, assessed the plaintiff for domestic, personal and home needs. She said that the plaintiff required occasional care with cleaning and preparing meals. He is unable to perform any outside or internal maintenance tasks. Ms Tchan assessed domestic care at 5.5 hours per week and outdoor maintenance at 4.5 hours. Dr Zeman (Ex 2) suggested 3 hours outdoor work and 3 hours domestic assistance are required,
43 The plaintiff gave evidence that prior to the accident he did most of the outside work. He mowed the lawns and it is a large backyard which used to take him half a day to mow. He helped his wife with the gardening including the vegetable garden and painted the house and undertook the repairs (t 29). He regularly helped with the washing but does on the odd occasion now (t 32). He vacuumed once per fortnight but now only vacuums once per month. It used to take 15-20 minutes but now takes an hour as he is forced to take rests. He used to do a bit of cooking but now only cooks occasionally. For future domestic assistance I allow 6 hours per week at 909.9 x $17 equals $92,809.80.
Future Treatment
44 The plaintiff claims $15 per week x 909.9 = $13,648.
45 The plaintiff currently is required to take Byrox, an anti-inflammatory drug, every morning and Digesics up to four per day but usually at least one per day. For prescriptions the plaintiff needs to attend a general practitioner once each week (t 10). Since the pain management course the plaintiff has attended Newcastle hospital for five follow-ups, the last being about 12 months ago (t 10). Further Dr Morse stated that with future stresses, which are quite likely, the plaintiff would be liable to more severe depression and there is always a risk that he will use drugs excessively in the future which may require future therapy. In accordance with Malec v J C Hutton Pty Limited (1990) 169 CLR 638 an award for damages should reflect this possibility. It is reasonable to allow for the plaintiff to see the pain management clinic from time to time. Taking the above into account, it is reasonable if not conservative to allow the sum of $13,648.
Appliances
46 These items are listed by Ms Tchan occupational therapist. According to Ms Tchan the necessary items are a shower rail fitted as a corner unit on two walls for stability when standing, a long handled shoe horn and elastic shoe laces to reduce bending when putting on shoes, a toe washer and lazy tongs also used to reduce bending. Further required is a hi lite armchair which is a basic reclining adjustable height lounge chair to allow comfortable sitting with firm back support, recline option and ease of getting in and out. In addition the plaintiff requires an upside down fridge, long handled dust pan and broom and an easikneeler with arms for kneeling on when gardening and if they are capitalised @ 909.9 the sum is $3,594. I have included a shower rail. Dr Zeman (report 6 November 2001) agrees that the plaintiff needs these appliances. I allow the sum of $3,594.
47 The workers compensation payments made are $67,282.04.
48 I propose to enter judgment, once the parties have had the opportunity to check the calculations, that the defendant pay to the plaintiff the sum of $547,607.84 which I round off at $547,608.00.
49 I propose to enter judgment that:
(2) The defendant is to pay the plaintiff’s costs as assessed or agreed.
(1) The defendant is to pay to the plaintiff the sum of $547,608.00.
50 The parties had an opportunity to check the figures. They have been updated and have been agreed at $547,535.84 which I round off at $547,536.00.
JUDGMENT
(2) The defendant is to pay the plaintiff’s costs as assessed or agreed. Costs to be paid on an indemnity basis as from 11 May 2001.(1) I enter judgment that the defendant is to pay to the plaintiff the sum of $547,536.00.
| $ | |
| Non economic loss | 104,580.00 |
| Out of pocket expenses | 60,755.20 |
| Fox v Wood | 3,619.88 |
| Past economic loss | 73,525.00 |
| Past superannuation loss | 7,788.00 |
| Past domestic assistance | 22,200.00 |
| Future treatment | 13,648.00 |
| Future loss of earning capacity | 206,720.00 |
| Future superannuation loss | 25,650.00 |
| Future domestic assistance | 92,809.80 |
| Appliances | 3,594.00 |
| Total | 614,889.88 |
| Less workers compensation payments | 67,282.04 |
| Judgment amount | $ 547,607.84 |
0
6
0