Bicknell v Pickard
[2018] WADC 174
•14 DECEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BICKNELL -v- PICKARD [2018] WADC 174
CORAM: McCANN DCJ
HEARD: 17-21, 25-27 SEPTEMBER 2018
DELIVERED : 14 DECEMBER 2018
FILE NO/S: CIV 2716 of 2013
BETWEEN: DEAN BICKNELL
Plaintiff
AND
BENJAMIN DU PLESSIS PICKARD
Defendant
Catchwords:
Personal injuries - Motor vehicle accident - Assessment of damages - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act1943, s 3D(2)
Result:
Judgment for the plaintiff for $479,340.50
Representation:
Counsel:
| Plaintiff | : | Mr G Droppert |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Kuscevich & Associates |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Beer v Duracraft Pty Ltd [2004] WASCA 192
Briginshaw v Briginshaw (1938) 60 CLR 336
Brocx v Mounsey [2010] WASCA 196
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Den Hoedt v Barwick [2006] WASCA 196
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Jones v Dunkel (1959) 101 CLR 298
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ramsay v Watson (1961) 108 CLR 642
Sharman v Evans (1977) 138 CLR 563
Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173
Usher v Usher [1992] HCA 47; 65 ALR 384
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Western Australia v Watson [1990] WAR 248
Wilson v McLeay [1961] HCA 56; 106 CLR 523
McCANN DCJ:
Introduction
On 28 November 2010 the plaintiff was injured in a collision between motorcycles ridden by himself and the defendant.
By consent, liability has been apportioned 50:50%.
This is the assessment of the plaintiff's damages.
He suffered severe crush injuries to his lower left leg. The injuries required extensive orthopaedic and plastic surgery and wound, infection and pain management.
Subsequently he suffered depression and anxiety for which he has had ongoing clinical and pharmaceutical management.
The issues for me to decide revolve around causation and in particular the extent to which the psychiatric illness was caused by the accident and the physical injuries, and the extent to which his residual physical injuries and psychiatric illness have caused economic and non‑economic loss (past and future).
In summary, the plaintiff's case is as follows:
(i)He was born on 20 July 1961 and is thus 57 years of age. He is a qualified mechanical engineer. Prior to the accident he was employed on a regular, casual basis by DOF Subsea Australia Pty Ltd (DOF) as a Senior Project Engineer in the offshore oil and gas industry. He was highly motivated and successful.
(ii)He returned to part-time work at DOF on 22 April 2011 and built up to full‑time hours by May.
(iii)By late 2012 he realised that he could no longer perform some key functions of his employment which involved offshore and on-site work. He therefore transitioned to an almost entirely office‑based role created for him by DOF which was designated as Technical Manager. But, he became deeply depressed and suicidal because of his symptoms, the changed role and the loss of his extra‑curricular life.
(iv)The position of Technical Manager became redundant in March 2017 and he was retrenched.
(v)But for the accident he would still be employed as a Senior Project Engineer for DOF.
(vi)He has had virtually no remunerative employment since being retrenched. His residual earning capacity is negligible owing to his physical and mental impairments in the context of a competitive employment market.
(vii)His personal life has been almost entirely effaced, including his once happy relationship with his spouse (Jacquie) and a busy social life. He is now confined to a mundane and limited existence attended by physical and mental pain.
(viii)He is dependent on paid services of others in numerous domains where he would otherwise be self‑sufficient.
The defendant contends that the accident is not causally responsible for the entirety of the plaintiff's economic and non‑economic loss. The defendant contends:
(i)The plaintiff recovered sufficiently to return to his pre‑accident occupation as a Senior Project Engineer and in fact did so for some time after returning to full‑time work.
(ii)Therefore, it was not necessary for him to transition to the Technical Manager position and, in any event, it was a promotion and more remunerative than his employment as a Senior Project Engineer. He did well in the work, enjoyed it and was highly thought of. His mental illness or physical injuries did not impact on his ability to perform that role.
(iii)His redundancy was based on purely economic grounds which related to a slump in the oil and gas industry and therefore were not caused by his physical and mental limitations.
(iv)Since then his unemployment and psychiatric incapacity have been attributable to industry factors which are generally applicable to people of his qualifications and personal circumstances.
(v)As such, his physical and mental injuries have not caused him any economic loss since he returned to fulltime employment in May 2011.
(vi)He has continued to engage in extra‑curricular activities notwithstanding his injuries and does not need the treatment and paid services to the extent claimed.
Relevant evidentiary principles
I am required to make findings on the ultimate issues of fact on the balance of probabilities based on a body of direct and circumstantial evidence.
A circumstantial case is one in which no one fact or piece of evidence is capable of proving an ultimate fact. An ultimate fact is taken to be proven if the court is satisfied (ie, can infer) based on the whole of the evidence that it is more probable than not that the fact occurred or exists (Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 536, (Gibbs CJ & Mason J)). By 'more probable is meant no more than that upon a balance of probabilities … an inference might reasonably be considered to have some greater degree of likelihood' than others that are open (Jones v Dunkel (1959) 101 CLR 298, 310 (Menzies J)).
Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves' (Jones v Dunkel (309) (Menzies J)).
Being satisfied as to the standard of proof is not an arithmetical exercise. I am required to be actually persuaded as to the probability of a fact being true (Briginshaw v Briginshaw (1938) 60 CLR 336). Nor should I confuse mere conjecture with reasoned conclusion (Jones v Dunkel (305) (Dixon CJ), 309 - 310 (Menzies J)). Findings must be supported by evidence and assumptions are not evidence (Swick Nominees Pty Ltd t/as Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173).
I am also mindful that a circumstantial case which is reliant on deduction by a process of elimination is potentially fraught with the fallacy that a hypothesis must be correct merely because it is the only one left. That is to say, it does not become more probable than the alternative(s).
The assessment of the credibility or reliability of evidence is a multi factorial task. The appearance and demeanour of witnesses are relevant factors, but there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from such considerations. Judges are encouraged to 'limit their reliance on the appearance of witnesses and reason to their conclusion, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30] - [31] (Gleeson CJ, Gummow, Kirby JJ)). It is also useful to take into account the cooperativeness and frankness of witnesses and their willingness to make concessions.
An expert is permitted to give evidence of an opinion (which would otherwise be hearsay) with respect to a factual issue which requires expert elucidation if he or she is qualified by training or experience to do so. Opinion evidence is admissible for the purpose of assisting the court to make findings of fact.
Opinion evidence, and findings derived from the same, must be based upon facts or stated assumptions that are proven (or bear sufficient correlation to facts which are proven) and must be explained in such a way that the court can understand it and make the necessary findings, or at least understand why it should be adopted or deferred to. (Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J); Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] – [80] (McLure J); and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [64] (Heydon JA).
As with lay witnesses, the court is entitled to accept all of a particular expert's evidence, or none of it, or accept some and reject the rest, or simply put it to one side (Ramsay v Watson (1961) 108 CLR 642, 645). In this way findings can be drawn from evidence and opinions of more than one expert, irrespective of who adduced the evidence.
The purpose of expert evidence is not to educate the court so that it may then form and rely upon its own view. The court cannot substitute a diagnostic role for its forensic role.
The weight of expert evidence may depend to some extent on the degree of specialisation involved in the relevant expert field, because some fields are more esoteric than others. Evidence may be adopted or deferred to when it is very specialised or esoteric if the relevant expert(s) are suitably qualified and the science is well understood by them.
Relevant legal principles – causation
Causation is a question of fact to be determined by the application of common sense to the facts of the case (see March v E & M H Stramare Pty Ltd (1991) 171 CLR 506). The plaintiff bears the onus of proving that secondary injuries were caused or materially contributed to by the primary injury. A contribution is regarded as material if it is shown on the evidence to have been more than negligible (see Western Australia v Watson [1990] WAR 248).
Relevant legal principles – economic loss
The assessment of damages for economic loss is not necessarily a precise science, because it involves the valuation of two abstract assets, namely the plaintiff's earning capacity if the accident had not occurred and his retained earning capacity.
I commence by setting out relevant principles:
(i)The plaintiff must establish the extent to which the injury is or may be productive of financial loss. It is not simply a matter of determining what would have happened if he had continued his pre-accident employment. (See Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3 Dawson, Toohey & Gaudron JJ).
(ii)Past experience is not necessarily a good guide to the future (see Usher v Usher [1992] HCA 47; 65 ALR 384 [8]). It is not necessary to make a finding as to the specific employments the plaintiff would have enjoyed if he had not been injured.
(iii)The issue to be determined is the economic value of lost earning capacity if the plaintiff had chosen to exercise it.
(iv)Allowances may also be made for contingencies which are open on the evidence which would have impacted on the extent to which the plaintiff would have exercised his earning capacity, or can now do so. The negative deduction (if any) which would be made to take into account the usual vicissitudes of life is not fixed but as a guide 10% has been approved as the upper end of the range (see Brocx v Mounsey [2010] WASCA 196).
Before the accident
There is little dispute as to the plaintiff's personal circumstances before the accident and I find as follows.
He has three siblings and is close to them. Their father (now deceased) lived a dysfunctional and itinerant life and they were raised by their mother, mostly in Perth. He regularly visited relations who lived in the country, which he loved.
He boarded at an agricultural college in Denmark (WA) in years 11 and 12 and graduated as dux in Year 12. He then obtained employment as a farmworker.
He met his wife in Northampton when they were in their teens. They married when he was 22 years of age and she was 20.
They have one child (Samantha) who was born on 11 May 1986.
They farmed at Badgingarra between 1978 and 1985, but ultimately that was not viable. The plaintiff then worked in a technical/managerial position commissioning a large export market garden in Gingin.
The family then moved to Perth and the plaintiff worked in construction, irrigation and landscaping businesses (mostly self-owned) for a number of years.
He and his wife bought a house on a half-acre hill-side lot in Gooseberry Hill.
Meanwhile they gained entry to Curtin University via mature age matriculation at Canning College.
Ms Bicknell took a pathway through arts (social work) and psychology and eventually qualified as a clinical psychologist in 2000. She commenced a PhD, but that has been on hold since the accident.
The plaintiff graduated in mechanical engineering with honours in 1996. He obtained undergraduate and post-graduate work as a maintenance engineer in the oil and gas industry. He was employed by Clough Offshore as a project engineer and then Senior Project Engineer from 1996 to 2000. He resigned from that employment because of his scruples about the differential treatment of the regionally-sourced and international workforces.
He was employed by Westeq Pty Ltd in tree-farming from 2000 to 2004.
He set up and ran a manufacturing company (Pearlgrade Pty Ltd) from 2004 until 2007.
In 2007 he returned to work in offshore engineering as a Senior Construction Engineer on a casual contract basis with SWG Offshore Pty Ltd. That company was taken over by DOF in 2010 whereupon he was designated a Senior Project Engineer.
Before the accident he was very fit and active. He enjoyed numerous extra-curricular activities:
(i)He enjoyed water sports. In his late 20's he took up canoeing and regularly participated in the Avon Descent with success. At one point he was ranked in the top 10 in Australia in his class. Before the accident he still had a role training and mentoring paddlers at the Swan Canoe Club.
(ii)He took up bicycle racing as a challenge and became a multiple champion, primarily in road time-trials. He set records in a number of categories, some of which still stand.
(iii)After retiring from elite cycling he continued riding recreationally. He trained several times per week and had a goal of competing at World Masters level. He was one of the founding members of the Ride for Youth Charity and had a leadership role.
(iv)He has been interested in motorcycling and motorsport generally since his childhood. At one time he was involved in on‑road motorsports and bought and modified his own car for that purpose. He has owned dozens of motorcycles and was an expert on all surfaces.
(v)He was a member of the BMW Club of Western Australia and developed close friendships. He regularly participated in what he called 'geo tourism' which might be more commonly described as 'off-road endurance riding'. He sometimes went on cross-country journeys of 5,000 km or more (carrying everything that he needed on his motorcycle). He once rode from Cape Leeuwin to Cape York and return.
In evidence he attributed his ability to perform at elite levels to his capacity to mentally control pain and discomfort and thus endure training.
He also pushed himself on domestic projects at the Gooseberry Hill property. He landscaped the outside. With the assistance of some light machinery, he moved 80 tonnes of earth and laid over 10,000 recycled bricks.
He did all the house maintenance except electrical and plumbing work. He assisted his wife with a few domestic chores (but not many as far as I can tell from the evidence).
He and Ms Bicknell once planned to extend and renovate the house (from 140 to 400 sqm). He was going to do most of the work himself. Local authority approval had been granted. Those plans were shelved after the accident, but the plaintiff did build an outdoor deck with the assistance of a tradesman who did the roof work.
Just before the accident the plaintiff and Ms Bicknell and some other investors bought the property in which Ms Bicknell conducted her clinical practice in Kalamunda. The plan was for the plaintiff to attend to all the building management and maintenance.
Employment with DOF before the accident
The following is not disputed and I find accordingly.
The plaintiff was employed by DOF on one-off projects for DOF's clients, usually with breaks in between. Contracts could last for months or days. The work involved a mixture of activities offshore, on‑site (ie, away from the office but at land-based facilities) and in head office in Perth. This work was roughly split 30 ‑ 40%, 50 ‑ 60% and 10 - 20% respectively depending on the project.
He qualified as a senior investigator and became a specialist in decommissioning obsolete facilities.
His role as Senior Project Engineer was to run the technical side of a project. He answered to the Project Manager. Depending on the size of a project, he sometimes had another Senior Project Engineer with him and between four to six project engineers, plus some graduate engineers. Specialists such as divers and technicians (eg for remotely operated vehicles) were also part of the team under his day to day control (see exhibit 6.38 and ts 64).
He was responsible for maintaining very high standards of health and safety onsite and offshore, where lost-time injuries or illnesses can be extremely expensive in terms of direct and indirect costs (inefficiency).
Project engineers work very hard and long hours. A shift is nominally 12 hours, but with handovers at the beginning and end and other duties the plaintiff often worked well over 12 hour shifts (ts 63).
Exhibit 6.11 is an illustrated guide to offshore and on-site duties.
Offshore facilities (fixed or floating) vary quite considerably in depth and location. Some are quite close to shore in shallow waters (even estuaries), whilst others are far into the sea in very deep water. Some are very large and relatively stable, but others are very small and unstable (barely more than buoys).
Forms of offshore transport vary from large construction ships down to small, open power-boats. Use is made of ferries, riverboats, barges, helicopters and tugs, to name a few.
Transfers to and from structures and vessels involve stepping from one moving surface onto another using equipment such as pilot-ladders, baskets (known as Billy Pughs) and nets. Sometimes water conditions are stable (eg, an estuarine environment) but the open sea can be very rough. Transfers are not permitted when the sea is above 1.5 m, but the effective range is up to 3 m because two vessels can be moving in opposite directions.
Wharfs and jetties at ferry terminals and other land-based facilities are often crude and, even if they are not, it is often necessary to transit across a number of small vessels (eg, water-taxis) that are rafted together. Sometimes this must be achieved whilst carrying personal and technical equipment of great value.
Because space is at a premium, walk-ways, stairs and ladders on offshore facilities are designed to challenging standards. So, for example, access to a 'pig receiver' (see exhibit 6.11, page 73) requires scaffoldings, steps, cranes or ladders. Working surfaces are frequently wet and slippery, particularly if subsea equipment is being brought to the surface. The working deck is a busy place with much movement of dangerous equipment and many trip hazards. There are confined spaces.
Conditions at land-based production facilities are also challenging, especially in some south-east Asian countries where engineers are often required to work in crude facilities or mud.
On-site conditions (ie, manufacturing and logistic facilities) tend to be better, but vary widely from region to region in terms of site organisation and safety. Some are poorly managed and inefficient.
It is not uncommon to find temporary access arrangements on offshore and on-site facilities, such as boards lashed together and/or a lack of handrails.
No part of an offshore vessel or site-based facility is off limits to a Senior Project Engineer because he or she must supervise everything. As such, during a shift on a large construction vessel the plaintiff was required to routinely traverse every level (typically about 10).
It is necessary for offshore workers to be formally accredited pursuant to a system known as TBOSIET which includes HUET capability for underwater helicopter evacuation. Medical fitness requirements extend to numerous domains (including psychiatric) which would not normally be issues in a shore-based environment.
The accident, rehabilitation and return to work
There is no dispute about the following matters and I find accordingly.
The accident occurred at approximately 10.00 am on 28 November 2010. The plaintiff was riding solo with two others. He was wearing protective gear including heavy motocross boots, leathers and body armour.
He stopped his motorcycle on the left-hand side of a gravel road, positioned side-on to the direction of travel. The defendant arrived on his motorcycle but failed to stop in time. The right side of his motorcycle collided with the left side of the plaintiff's machine, crushing the plaintiff's lower leg.
The plaintiff was immediately aware that he had suffered severe injuries. He believes that he lost consciousness whilst he was moved from the track to the shade of a tree. Emergency services were summoned. Because of the remoteness of the location, approximately five hours elapsed before he arrived at Royal Perth Hospital. He was in extreme pain, mitigated by Ketamine which was administered by paramedics.
He was admitted to the State Trauma Unit where X-rays revealed a compound, comminuted fracture of the distal fibula and tibia, with a fracture in the ankle.
He underwent open reduction and internal fixation of the fractures the following day and was discharged on 16 December 2010.
His surgical wound was dressed daily at home by Silver Chain nurses. However, he became worried about its appearance and went to the orthopaedic out-patient clinic at Royal Perth Hospital on 22 December 2010. He politely refused to leave until he was reviewed by a plastic surgeon. He was admitted and stayed in hospital for several weeks, except for leave over Christmas and for his father-in-law's funeral. He underwent numerous debridements and was eventually operated upon on 30 December 2010. Plastic surgeons moved a piece of the gracilis muscle from the inside of his right thigh to the wound, together with split skin grafts from the outside of the right thigh.
Photographs of the so-called free-flap graft taken shortly after surgery (exhibit 7.5) are very confronting. To the uninitiated it is a wonder that the operation succeeded (as it did). There were many anxious times owing to the risk of infection and possible amputation. Indeed, the plaintiff's neighbour ultimately underwent an amputation. The plaintiff was in considerable pain, discomfort (owing to the artificially elevated temperature of his ward) and distress. He became extremely worried about his prognosis.
He drew upon his physical and mental discipline to force himself to regain movement in the damaged leg and was given leave to fly to his father-in-law's funeral in Northampton. This illustrates his habitual determination and desire to overcome pain and obstacles.
He was discharged from Royal Perth Hospital on 26 January 2011 and continued to undergo physiotherapy, outpatient visits and, much later, procedures to remove screws.
At all material times since then he has experienced symptoms in the lateral lower leg, ankle and foot (see ts 94 - 95). He developed numbness over most of the dorsum of the foot, some of his toes and the anterolateral ankle up to the free-flap graft, allodynia (burning pain) in the vicinity of the graft and extremely sharp and painful 'electric' shocks. These shocks became less frequent over time, but they still occur on a random basis in sets of 2 or 3. The graft is hypersensitive to contact. He gets cramps in his foot when he is tired.
He had income protection insurance and therefore did not need to return to work from a financial point of view. But, typically, he wanted to 're-establish my career and get myself back on track as quick as I could' (ts 107). So, he returned to work on a part-time basis on 22 April 2011 and increased his hours to full-time from 21 May. Initially he was restricted to light duties in the office. He made light of his injuries and simply gave his colleagues to understand that all was well because he wanted to maintain his privacy and ostensible physical fitness.
He remained on heavy pain relief (Norspan and Lyrica) until in or about September 2011. The side effects affected his concentration, so he abandoned all pain relief (went ‘cold turkey': ts 107) except for the occasional Nurofen or paracetamol.
Return to pre-accident duties
The plaintiff testified that he returned to on-site work on or about 12 August 2011 and later returned to offshore work.
He found the work 'extremely difficult' because of his symptoms and took a number of risks without telling anyone (ts 110). He said it was obvious to himself that he was a hazard and 'high risk' (ts 111). He kept persisting, hoping that he would get better. But, he plateaued and knew that he should not be working in hazardous circumstances.
His last contract as a Senior Project Engineer was the Bien Dong project in south-east Asia in or about October 2012 (ts 115 exhibit 6.10).
So, he testified, he 'set about creating a technical manager role … that was basically an office-based role' (ts 111). He enlisted the support of relevant management (including Human Resources) and the one-off position of Technical Manager evolved. It was formalised by a contract on 19 December 2013 (exhibit 6.24).
The Technical Manager's role
As Technical Manager the plaintiff became the line manager for between 40 and 70 other employees (depending on DOF's workload).
He testified that he greatly disliked working in a fulltime office environment and became deeply unhappy. It was ‘almost like bringing someone with agoraphobia' from an office environment to working outside (ts 121). It was 'just the absolute opposite of who I was'. It lacked the pace, stress and challenge of a Senior Project Engineer's role.
He was also concerned that he had transitioned from an income producer (a so-called ‘chargeable') to an overhead, which was not desirable in a profit-driven company such as DOF (ts 122).
He began taking breaks outside the office to mitigate his unhappiness.
He developed suicidal ideations in 2014 and often thought about how he would commit suicide (ts 120). For example, he developed a fixation about crashing his car into a particular tree on his journey to and from work.
He testified that he became irritable and difficult to work with and selfish and unsociable at home.
He eventually began modifying his working hours, but this reduced his income. For example, he reverted to a 9 day fortnight, used up his annual leave entitlements and eventually took unpaid leave.
He was unable to do building management work on the Kalamunda property.
He tried to resume road cycling but was unable to keep up with the peloton. He changed to mountain biking but found up-hill climbs difficult. To compensate he became prone to riding recklessly downhill (ts 122-3). As a result he crashed heavily on 9 October 2013 and suffered a left AC joint dislocation. He hoped to die as he lay on the ground. He had surgery on 28 October 2013. He wore a sling for at least a month and the plate in his shoulder was removed on 28 September 2014.
Eventually his lawyer suggested that he see a psychiatrist and he saw Dr George Atartis. He was diagnosed with Major Depression and Anxiety and has been on various medications ever since.
His contract was varied on 4 May 2015 because of a global downturn in the oil and gas industry. (There was a company-wide 10% reduction in engineers' salaries see [218]).
In late 2016 he and his wife borrowed money and purchased an historic rural property in the Toodyay countryside. The property had previously been used for small scale agriculture of some kind, but their plan was to farm Sandalwood and Christmas trees (since planted: ts 174) and to renovate the buildings and use them for tourist accommodation (ts 134). The plan was (and still is) for the plaintiff to do as much of the mechanical and building work as possible and he is doing so. A stonemason was engaged before he was made redundant (ts 174 - 5).
The plaintiff testified that they entered into this investment on a 'negatively geared' basis on the assumption that his employment and their combined incomes were secure (ts 134). I regard this evidence as important. It signifies that the plaintiff had come to terms with his office-based role and that his work-related psychiatric illness was manageable.
On 15 March 2017 the plaintiff and 10 other employees were retrenched on the ground that they had become redundant as a result of a downturn in DOF's workload.
The plaintiff did not believe that explanation. He believed that he had been retrenched because of his declining performance and behaviour.
Much of the evidence at [77] to [91] above is not disputed and I accept it unless stipulated otherwise. The key issues were:
(i)He actually carried out his duties as a Senior Project Engineer until October 2012 without any mishap: He did not dispute this and I find accordingly.
(ii)He formally passed the TBOSIET certification for offshore work on 2 April 2014 (exhibits 11.22 and 11.23).
(iii)After he returned to work all of his performance appraisals were very positive and recorded that he was happy with his work and exceeded the expectations of both himself and the company: The plaintiff testified that he simply told his supervisors what he thought they wanted to hear because, he feared, he would put his employment at risk if he conveyed anything other than a contented and optimistic message. Having said that, the plaintiff did not keep his superiors entirely in the dark (and nor were they: see Mr Rickett's evidence at [232]).
(iv)The oil and gas industry was in recession in March 2017 (if not earlier) and his role as Technical Manager was not essential to needs and/or chargeable: The plaintiff did not dispute this and I have found accordingly (see [242]).
(v)It is rare for Senior Project Engineers to work in the field beyond their late 40's or early 50's and, as such, it was unrealistic for the plaintiff to believe that he would still be working as a Senior Project Engineer but for the accident: The plaintiff denied this and insisted that he intended to work in that role for as long as he could. He said that but for the accident his fitness and skills (especially in decommissioning work) would have kept him competitive in the market. He wanted to work until his mid 60's and beyond. He testified (ts 79) that after his mid 60's he would have sought offshore and on-site work for a few months per annum in a supervisory role known as a CSR (which I gathered involved some form of consultancy work). I have accepted this evidence insofar as it applies to his wishes and beliefs, but the probable reality was less sanguine (see [247] (iv) and (v)).
The plaintiff's evidence about his circumstances since redundancy
The plaintiff testified (and I accept) that since being made redundant:
(i)The physical symptoms in his left leg are as at [70] above.
(ii)He has regularly searched the media for employment and has applied for over 70 positions in a diverse range of occupations (ts 130). He has only had two interviews and not much else in terms of feedback.
(iii)He has had two casual jobs doing farm labouring. He found this demeaning at times and one employer in particular was especially disorganised and hard to deal with. He was severely hindered by his physical disability but pressed on anyway because he needed the work.
(iv)He continues to do some domestic duties inside and outside the Gooseberry Hill house. He has worked on the redevelopment and restoration of the assets on the Toodyay property. However, he has been unable to perform some functions, particularly work at height, and has had to pay others to do so.
(v)He is able to walk and cycles occasionally on a recreational basis, but he is much restricted. For instance, he can no longer walk cross-country.
(vi)He feels mentally healthier than before his redundancy. He feels less depressed, but still very anxious and stressed. He sees Dr Atartis regularly.
My observations of the plaintiff
The plaintiff walked slowly to and from the witness box with a slight sway which favoured the left leg. It reminded me of someone allowing for a stone bruise in their foot. It is curious that some doctors have stated that he has a normal gait, but it is possible that those opinions have become redundant: the plaintiff (and some doctors) testified that a loss of arch height has become noticeable quite recently in the left foot.
I viewed his scars. He removed a pressure bandage that he wears on his lower left limb. The scar at the free-flap graft site was more aesthetically acceptable than I expected, but was demarcated by a purple-hued margin. The plaintiff testified that the colour varies according to the temperature. The circumference of the left lower leg appeared to be somewhat less than the right leg.
The scar at the skin donor site on the right outer thigh is obvious and large, but not particularly unsightly.
The scar from the gracilis muscle harvest inside the right thigh is not particularly unsightly unless the plaintiff bends, in which case a lengthy, deep cleavage appears.
The plaintiff pointed out the reduced arch and splayed toes in the left foot (they are noticeable to a lay person) and to areas of altered sensation. He pointed out visible bumps which indicate in-situ surgical screws.
When he was sitting in the witness box (and in the rear of the court) he regularly elevated his left leg to a partly horizontal position. As far as I could tell, he never looked physically comfortable at any stage.
His facial expression varied from dour to flushed. Sometimes he looked very sad. However, he genuinely enjoyed occasional opportunities for levity.
Ms Bicknell's evidence
Ms Bicknell testified about her relationship with the plaintiff prior to the accident, her involvement on the day of the accident (when she and a friend instigated and coordinated the rescue), the plaintiff's treatment and rehabilitation, his career and redundancy and life since then.
She is a clinical psychologist with a specialty in the treatment of trauma victims. Inevitably this placed her in a quasi-therapeutic role vis‑à-vis her husband (whether either of them wanted it or not) and also informed her evidence to some extent. I found her to be intelligent, realistic and down to earth and circumstantially very reliable insofar as the anecdotage and detail in her evidence were credible and relatable to the plaintiff's circumstances.
Ms Bicknell testified (ts 243) that before the accident the plaintiff was very logical and sharp. He was well respected by everyone and did everything to an elite level. Emotionally he was rock solid, loving, sensual and kind. The Bicknells were very social and their home was a 'haven' for people. The plaintiff dealt with stress easily and, if anything, thrived on it.
He has changed since the accident. He is difficult to live with and exhibits controlling and hypervigilant behaviour (he is a terrible back‑seat driver). The social enjoyment they once had, and their personal intimacy, is much reduced and he does annoying things which he would not have done before the accident. For instance, he rests his left leg on the coffee table in the lounge and one day he took it upon himself to have a much‑loved tree on the Gooseberry Hill property heavily pruned.
At one point (2014) he became impossible to live with and they separated for approximately 3 months.
The referral to Dr Atartis was a watershed. The plaintiff emerged from the initial consultation in a state of some surprise but also relief to learn that he had depression (and allied conditions) and accepted it, and the need for treatment, which had formerly been anathema whenever she referred to it. (See ts 259 and also my comments at [113].)
He is less able to do a lot of things that he formerly did, such as tend to the maintenance of their home and investment properties as well as accounting and record keeping for their investments.
With time, things have improved and it is clear that Mrs Bicknell loves and supports her husband.
The medical evidence
The Psychiatric Evidence
The plaintiff's psychiatric health was first questioned in 2012 by Dr Salmon (a pain specialist) who referred him to a psychologist who specialised in pain care (Ms Gemma Barter). Ms Barter took an optimistic view of the diagnosis and prognosis, stating (exhibit 1.5):
Dean appears to have well developed coping strategies and has an active lifestyle and receives good support from his family and friends. In the assessment there was no evidence of catastrophic thinking, fear avoidance or depressed or anxious mood, with Dean's reactions to his accident and ongoing pain normal responses to such a situation.
… In the unlikely event that circumstances change for Dean, I of course would be happy to work with him regarding pain management techniques.
With the benefit of hindsight and all the evidence I find that the plaintiff presented the same stoic countenance to Ms Barter as he did at work and that her assessment and prognosis was overly sanguine. As will be seen (see [132]), I have accepted evidence that the plaintiff already had psychological and psychiatric problems.
The plaintiff's then GP, Dr Oyewopo, made a tentative diagnosis of Post‑Traumatic Stress Disorder on 3 September 2014. He wrote a referral for the plaintiff to see a psychiatrist, Dr Ken Orr, but the plaintiff never attended. I have no doubt that, once again, this was due to his stoic nature and sense of shame, which is mentioned elsewhere in the evidence.
Dr Atartis first saw the plaintiff on 17 June 2015. He took a background history consistent with my findings as to the plaintiff's life before and after the accident and noted numerous post‑accident stressors (ie, the 'losses' quoted below). On the DASS Quantitative Screen the plaintiff's anxiety score was 16 (moderate), his stress level was 36 (extremely severe) and his depression score 40 (extremely severe).
I comment without any attempt at irony that it is entirely consistent with my impression of the plaintiff as a concrete, evidence‑driven thinker that he was actually impressed by his DASS scores (ts 124). I surmise that he may have been less accepting of his diagnosis and treatment if less concrete evidence had been produced.
Dr Atartis reported as follows (exhibit 1.11: all intercalations and emphasis are mine):
My current finding is that he is Clinically Severely Depressed … and that there are ongoing psychological issues related to multiple losses in particular, loss of standing and clearing his name [as to apportionment of liability]. This appears to have a significant impact on his emotional well‑ being. I found him somewhat stoic in spite of the fact that he is severely depressed and this probably reflects his previous dynamic/resourcefulness as a man.
…
… He also has residual symptoms of Post‑Traumatic Stress with hypervigilance and avoidance behaviours. …
[The] … psychological issues … have not been addressed and I note in particular losses that he mentioned. These include loss of face, loss of integrity, loss of standing, loss of career prospects, loss of recreational activities, a loss of sporting activities and loss of self‑esteem.
Dr Atartis reviewed the plaintiff on 21 February 2017 and was told 'there was a possibility he might be made redundant' (exhibit 1.13).
On 21 March 2017, the plaintiff told him that he had been made redundant a week prior 'and he was feeling bitter about the crash affecting him' (exhibit 1.13). The plaintiff told Dr Atartis 'that had he been in his original work role [ie, Senior Project Engineer] he would still be meaningfully employed'.
Dr Atartis noticed that the plaintiff was 'somewhat flat in his presentation' and his opinion was that 'this was reactive to the change in his work circumstances', ie redundancy. Otherwise, the plaintiff's symptoms had improved 'quite significantly' whilst he had been treating him.
On 27 October 2017 he noted (exhibit 1.15) that the plaintiff was experiencing low mood and struggling financially due to being unemployed. His stress level had increased.
On 27 February 2018 'financial hardship' was still upsetting the plaintiff (exhibit 1.15). Dr Atartis noted 'that he was working quite hard and he found this helpful in terms of managing his stress as he felt that he could not sit around at home and do nothing … [which] had a negative impact on his psychological well‑being'. I infer that the 'work' related to the Toodyay property.
Dr Atartis noted that the plaintiff 'was quite stressed, in part due to the financial stressors … and also the upcoming court case which worried him'. He noted that the plaintiff 'had great doubts about his ability to work as an engineer with the physical limitations and pain issues which he felt impacted on his ability to do the outdoor engineering type [work] he did before'.
On the DASS Qualitative Screen the plaintiff scored 10 on the depression scale (a significant improvement on 40), but his stress level was 36 (the extremely severe range) and for anxiety he scored 10 (moderate).
In Dr Atartis' opinion the plaintiff was 'still having ongoing chronic residual depressive symptoms … some of which are masked by his stoic nature and a strong sense of shame'. In his opinion the stress levels were related to 'the pending court case, lack of perceived future career options and his dire financial circumstance'. He felt that the stress symptoms were unlikely to improve 'given his current dire financial situation and also his inability to secure employment'. But he did not believe that the depression was permanent as it was a treatable condition.
Dr Jon Laugharne saw the plaintiff for medico‑legal purposes on 9 April 2018. He reported (exhibit 3.4) a history in which, amongst other things, the plaintiff described 'chronic issues with speed, productivity, strength and balance [at work] following the accident as well as cognitive issues related to his medication which led to him giving up the offshore work and creating a new position for himself within the company that was much more office based'.
The plaintiff told him that he attributed his redundancy 'to his anger and irritability at work'.
Dr Laugharne's diagnosis was a Major Depressive Disorder in partial remission. His reasons were very similar to Dr Atartis, but I note that he placed weight on his understanding that the plaintiff's performance in the workplace and indeed redundancy had something to do with 'his reduced ability to get on with others in the workplace and to function within an office environment'. As will be seen ([242]), I do not believe that such was DOF's reason, but I accept that the plaintiff believed as much when he saw Dr Laugharne.
Dr Laugharne reviewed the plaintiff on 10 September 2018. He 'broadly agreed' (exhibit 3.3.2A) with the report of Dr Gemma Edwards‑Smith (see below).
Dr Edwards‑Smith saw the plaintiff for medico-legal purposes on 31 August 2018. She took a detailed history and reviewed the relevant reports. Her report (exhibit 11.5) was very thorough and I have found it helpful.
She made a diagnosis of Major Depressive Disorder based on a multi‑factorial aetiology similar to that relied upon by Drs Atartis and Laugharne. In particular she noted the role of the plaintiff's decision to stop offshore work, his 'quite marked' dissatisfaction with his working environment as Technical Manager and the 'challenging process' of mid‑life redundancy. As to the prognosis she said:
I suspect that resolution of the current legal dispute may reduce some of the stresses which have been perpetuating Mr Bicknell's symptoms. However there are some other factors which rendered the prognosis uncertain and probably negative including his pain and the difficulty he is experiencing with unemployment and the considerable financial pressures. If he is able to find meaningful and satisfying employment then I do think the prognosis would be considerably improved.
I find that the plaintiff has been psychiatrically ill to various degrees since the accident. My reasons are as follows.
Prior to the accident he was healthy and a paragon of professional and personal contentment. He lived life to the full in numerous domains. But, the clear and present threat of losing his lower leg became an obvious stressor within a few weeks of the accident. There was also his pain. He became stressed about that.
The plaintiff endeavoured to physically rehabilitate himself and returned to normal duties, but failed to meet the very high standards that he set for himself. In this respect it is not to the point that he was theoretically capable of performing to a certain level (eg doing offshore work) and being certified as such. I accept his evidence at [74] above as to his self-doubt and risk-taking: subjectively he experienced stress in a stressful environment. In that respect I take into account Dr Gillett's observations as to the stressful nature of offshore work (see [167]).
Dr Atartis (and, semble, Dr Oyewopo) diagnosed Post-Traumatic Stress and I accept that. I therefore find that the plaintiff was psychiatrically ill with Post-Traumatic Stress at all material times in 2011 until 2015 (at least).
I find that the transition from a Senior Project Engineer to Technical Manager marked a significant watershed when symptoms of depression became severely debilitating. As will be seen (see [239]), I have found that his decision to cease offshore and on-site work was justifiable. I also find that he was good at his work as Technical Manager and actually exceeded expectations. But in that role he was confronted by dual stressors, namely the loss of the occupation for which he was suited and a working environment for which he was not suited, in the context of having his former extra-curricular life ruined by pain and restrictions.
Doctors Atartis, Laugharne and Edwards-Smith encapsulated the aetiological significance of the change in employment (amongst other factors) in the passages that I have emphasised at [114], [123] and [128] above. I find that as at June 2015 the plaintiff had been suffering from chronic stress, anxiety and depression caused by his injuries and occupational transition.
However, with treatment and a degree of mitigation of his working conditions (reduced hours) the plaintiff gradually recovered. Indeed, as I have said ([89]), by late 2016 he and Ms Bicknell had no apprehension about his ability or expectations as to continuing in his employment as Technical Manager.
I therefore find that his Post-Traumatic Stress and depression were well controlled by early 2017 and such remains the case.
However, he now has high levels of situational stress which I find (based on the evidence of doctors Atartis and Edwards-Smith) is primarily attributable to his redundancy and subsequent unemployment and associated financial hardship. I have found that this will improve reasonably quickly (see [249] (ii)).
The physical-medical evidence
Mostly there was common ground between the physical-medical witnesses, save in respect of the plaintiff's fitness for work in on-site or offshore roles.
Dr Salmon was concerned from an early stage that the plaintiff had a secondary mood disturbance, including some depression, and endeavoured to encourage psychological treatment (to which the plaintiff was resistant at the time). On 6 December 2012, he opined that it was likely that the plaintiff would be able to continue to work as an engineer 'but participation with more physical activities is likely to remain restricted' (exhibit 1 page 11).
The plaintiff was seen by Dr Barrie Slinger (orthopaedic surgeon) for medico-legal purposes on 7 May 2013 and 13 March 2018.
In May 2013 (exhibit 1.7) Dr Slinger supported the plaintiff's decision to confine his employment to a wholly office-based role. He saw 'no reason to anticipate … a risk of premature degenerative change'. In March 2018 he noted (exhibit 1.9) that the plaintiff walked with a normal gait and again supported a relatively sedentary occupation. He would place restrictions on a return to an offshore role. He noted that the plaintiff 'manages all his domestic activities, but avoids climbing or working at heights'. He 'moves the garbage bins, one at a time, continues to mow the lawn, undertakes the shopping, drives a manual vehicle, operating the clutch, but has reduced his cycling … to two hours a fortnight'.
The plaintiff was seen by Dr Desmond Williams (orthopaedic surgeon) for medico-legal purposes on 9 July and 25 August 2015 and 20 March and 22 May 2018.
On 14 December 2015 Dr Williams noted that there was no evidence of left ankle degenerative change (exhibit 3.1.2). He noted a number of functional limitations and difficulties including walking (a maximum of 2 km), inability to jog or run, and limitation regarding kneeling, squatting, use of stairs, ladders and irregular ground. He said that those limitations and difficulties would impair the plaintiff's capacity for employment and also domestic and household activities, hobbies and recreational activities.
On 30 May 2018 he noted (exhibit 3.1.4) that on clinical review there was evidence of the collapse of the longitudinal arch of the left foot, increasing gaps between the toes and wasting in the left calf (as observed by me: see [98]).
He also took into account the risk of the plaintiff damaging the free-flap graft and said as follows:
The reluctance of surgeons to remove the plate and screws highlights the concerns about the vascularity of the free flap graft and it does represent a risk area of injury due to its lack of sensitivity and there is always the danger of skin breakdown and the need for constant protection of the area from trauma.
He said something similar in his report dated 13 August 2018 (exhibit 3.1.8): it was 'a factor that creates a significant impairment of left lower limb function, not only in the immediate but in the medium to longer term'.
Dr Williams was particularly concerned about the psychiatric aspect. He referred to the up-to-date reports of Drs Edward Smith and Atartis and said:
These recent psychiatric reports, taken in conjunction with the review of the medical aspects of fitness for work offshore clearly identified that the patient is unsuitable for offshore work activities.
On 15 and 17 September 2018 Dr Williams gave his opinion (exhibits 3.1.8.A and B) on the plaintiff's fitness for work in an offshore engineering environment. He had regard to a standard international assessment tool, namely the 'Medical Aspects of Fitness to work offshore: Guidance for examining physicians' produced by Oil and Gas UK (attachment to exhibit 3.6). Having regard to the plaintiff's musculoskeletal and psychiatric conditions he concluded that he was unsuitable for offshore work. As to the musculoskeletal domain, he said:
His ankle restriction and hind foot restriction limit him with regard to coping with stairs, ladders and irregular ground and attempting kneeling postures, which will limit him in working in confined spaces.
The plaintiff was seen by Dr Evan Jenkins for medico-legal purposes on 11 April 2017 and 8 March 2018. Dr Jenkins is a general practitioner with a specific interest in occupational fitness in the oil and gas industry. He is an experienced, internationally accredited maritime health examiner (ts 270 - 1).
On 11 April 2017, he noted (exhibit 3.2.2) that the plaintiff had worked hard to maintain his mobility and could 'walk significant distances' and did not limp. He had high arches and the left leg below the knee was 1 cm shorter than the right.
In his opinion the plaintiff's physical prognosis was poor because he had 'well-established chronic neuropathic pain affecting his left leg below the knee and his ankle and he has chronic anaesthesia of most of the dorsum of his foot and anterolateral ankle'. He said:
I feel Mr Bicknell would not be suited for work involving prolonged traversal of stairs and ladders. This includes a significant amount of offshore work. He would not be fit for hazardous transfers between moving vessels. He is not fit for prolonged rough ground walking. Restrictions of this nature should be considered … for the remainder of his working life.
The plaintiff was not 'particularly likely to suffer accelerated post‑traumatic left ankle arthritis'.
On 8 March 2018 Dr Jenkins reported (exhibit 3.2.4) that the plaintiff was doing daily stretching exercises for his ankle and trying to walk at least 2 km per day. He also road his mountain bike occasionally. On physical examination Dr Jenkins noted that the plaintiff's 'left arch was slightly lower than the right, visibly different to the previous review'. As to employment, he stated that 'it is now clear that he has been rendered permanently unfit for offshore work as a result of the' accident.
Dr Jenkins provided a lengthy report on 13 September 2018 (exhibit 3.2.6) in which he reviewed a number of other reports and opined on the plaintiff's fitness for offshore work having regard to the United Kingdom standard and the Australian equivalent (the 'Australian Maritime Safety Authority Standards for the Medical Examination of Seafarers and Coastal Pilots'). He agreed with Dr Williams' opinion that the plaintiff's free-flap graft was vulnerable to re-injury and said:
Mr Bicknell's left lower extremity condition is analogous to a peripheral neuropathy resulting in loss of sensation, proprioception and power of his leg which considerably affects his agility and, ipso facto, his safety when offshore regardless of the situation. Additionally, Mr Bicknell's skin has poor vascularity and is at risk of skin breakdown which places him at a higher risk of requiring medical evacuation.
Proprioception is awareness of the position of a joint and is very important on unstable surfaces (ts 291).
He also expressed the view that the plaintiff was only fit for 20 hours per week of office-based employment when one combined the left lower limb condition and the chronic psychiatric condition. He said:
I think it unlikely he would tolerate full work hours in an office-based role he evidently does not enjoy given his Major Depressive Disorder. … Given Mr Bicknell's high subjective levels of stress and significant levels of anxiety and depressive symptoms he is at risk of an exacerbation of his psychiatrist condition even in sedentary office-based work and due care and consideration is required with regard to this.
In cross-examination he agreed (ts 288) that a return to part-time work as an engineer would be possible in an office-based environment because the plaintiff was highly motivated and stoic.
Dr Jenkins was asked about the plaintiff being passed fit to return to offshore duties in April 2014 (ts 300 - 301, 312 - 4, 316 ). He was very dismissive of that assessment on the grounds that, firstly, workers routinely fudge the medical assessment and, secondly, because of a pre‑conception he seemed to hold that the doctor who carried out the assessment did not do it thoroughly enough or properly. I am very concerned at this latter aspect which detracted from the reliability and thus weight of Dr Jenkins' opinions.
Dr Brett Bairstow is an orthopaedic surgeon and saw the plaintiff for medico-legal purposes on 6 April 2017. By contrast to Dr Jenkins, he found (exhibit 11.1) that there was 'no obvious leg discrepancy (ie, the length was 101 cm on both sides).
He considered the prognosis 'stable' with no likelihood of improvement or deterioration in the foreseeable future.
As to the plaintiff's capacity for employment:
(i)He was open‑minded as to a return to work as a Senior Project Engineer, or in an office environment, and regarded it as a matter for the plaintiff's subjective assessment.
(ii)He regarded any occupation involving heavy physical labour, the management of slippery surfaces and heights, and the need for running, speed, agility and standing for lengthy periods to be contra-indicated.
Dr Bairstow saw the plaintiff again on 14 June 2018 and produced reports dated 14 June and 14 September 2018 (exhibits 11.3 and 11.3A). As to future employment prospects, he said that 'it would seem extremely unlikely that he would be able to return to offshore project management within the physical capacities/vulnerabilities he had'. However, subject to availability, 'he would appear capable of full‑time employment in an on‑shore role'.
Dr Heather Campbell is an occupational physician and saw the plaintiff for medico-legal purposes on 21 April 2017. As to his employment capacity she stated (exhibit 11.2):
……….. Mr Bicknell has a current and future capacity to work in his pre‑crash employment as a Senior Project Engineer/Engineering Supervisor, including offshore travel.
It is noted that his previous attempt to return to offshore work was relatively early on after the injury. Loss of confidence and fear of injury was the result of this attempt. His condition has since improved and although incomplete, in my opinion he does now have the capacity for his pre‑crash occupation.
The emphasised passage correlates with the presence of Post‑Traumatic Stress after the accident.
The plaintiff was seen by Dr Robert Gillett (consultant occupational physician) for medico‑legal purposes on 8 August 2018. I make these immediate comments:
(i)I was impressed with Dr Gillett's evidence. He has practised as a sub‑specialist in the oil and gas and allied industries for at least 14 years. He has personally experienced all of the working conditions that impact on the employment of an offshore engineer. He has a thoroughly comprehensive first‑hand knowledge of the medical and assessment aspects associated with fitness for offshore and on-site work.
(ii)The plaintiff did not take a liking to Dr Gillett who has, with all due respect to him, a somewhat abrupt bedside and/or forensic manner. The plaintiff did not appreciate it when Dr Gillett evinced a lack of interest in hearing (and receiving) oral, written and audiovisual information which the plaintiff wanted to give him about the work of an offshore engineer. The plaintiff was not to know it at the time, but Dr Gillett's reluctance was entirely appropriate since he already knew what he needed to know about the workplace and he was entitled to use his own clinical methodology. It is unfortunate that the plaintiff was upset at the time (and, I gather, even more so when he received Dr Gillett's report), but in my opinion Dr Gillett's expertise and methodology cannot be faulted.
(iii)His report (exhibit 11.4) was not error free, but this is not uncommon in medico‑legal reports. For instance, he noted in the history that the plaintiff had four screws remaining in situ at the surgical site. In fact, there are many more than this, which Dr Gillett readily accepted when an X‑ray was shown to him. In my opinion these sorts of errors are not significant in cases where an expert is clearly well qualified to express an opinion and is across the important facts. This is such a case. He was subjected to a lengthy and fruitless cross-examination about his brief and record-keeping which did nothing to undermine his credibility.
Dr Gillett disagreed with the experts who had said that offshore work was physically precluded. He acknowledged (ts 555) that they were entitled to their opinion but felt that they lacked his understanding of the offshore oil and gas environment and experience of individuals who had been able to cope with it. He said (ts 500, 504, 555) that the doctors had conflated impairment (as to which he agreed with them) and disability (the extent of 'the realisation' of the will associated with impairment) which is a different matter. (See the emphasised passage at [166].)
As to the plaintiff's future and current capacity for his pre‑accident employment Dr Gillett stated:
As I have indicated previously, one of the roles of the senior project engineer is to work with the client in relation to managing all aspects of the job in a safe injury/incident free manner. This would include all forms of transportation either to the site or from the site. I have commented above in relation to Billy Pugh [baskets] and significant swells. I would not support boat transfers via swing ropes ………. in any capacity. (I have undertaken this form of transfer and in my opinion it is inherently unsafe).
As such, in my opinion and based upon my experience and expertise in the offshore oil and gas industry, Mr Bicknell has the capacity but not necessarily the will, to continue as a senior project engineer. I note that he maintained all of his necessary safety certification during his employment with DOF Subsea indicating no medical restriction preventing him from travelling offshore.
Dr Gillett explained that, in his opinion, the plaintiff was actually unfit to return to offshore work (ie 'disabled') because of the psychiatric illness (ts 530, 532, 555). He described offshore work as a 'very stressful environment' (ts 533). In his opinion the plaintiff had returned to work prematurely and did not baulk at offshore work because of his physical restrictions but rather because of his psychiatric/psychological symptoms. This opinion is consistent with my finding that the plaintiff suffered from Post-Traumatic Stress at the time and also accords with Dr Campbell's opinion as to the plaintiff's 'loss of confidence' arising from a premature return to offshore work (see [162]).
Dr Gillett said (ts 530, and also 552) that many patients have neuropathic pain: some cope and some do not. A fused ankle was no barrier in one case (ts 552). He felt that the plaintiff could cope. But, in his opinion there had been too much emphasis on the plaintiff's physical fitness, when the psychiatric aspect was important (ts 532).
I have come to the conclusion that from a purely objective, physical point of view the plaintiff was contractually and legally fit for offshore duties of a Senior Project Engineer at all material times from mid 2011 until his redundancy in March 2017. My reasons are as follows:
(i)I prefer the evidence of Drs Gillett and Campbell (and to a lesser extent the evidence of Dr Bairstow at [160]) to those of Drs Williams, Slinger and Jenkins, especially given Dr Gillett's experience and opinion that disability is a subjective matter: some people with injuries can cope with symptoms and can work offshore and others cannot. On the evidence, the plaintiff was clearly in the former category.
(ii)The plaintiff was assessed as physically fit for offshore work on 2 April 2014. I infer that the examining physician, Dr Amanda Croft, had sufficient objective evidence and carried out an appropriate physical examination. For example, under the heading ‘examination record' Dr Croft noted that the plaintiff had 'normal gait and no foot drop' and (having regard to the medical reports) this remained the case until quite recently (see [170]). She mentioned the fact that he wore a pressure stocking on the lower left limb.
(iii)I find that the plaintiff could ambulate, use ladders and stairs, ride a bicycle and, in effect, had reasonable functionality provided he did so steadily and carefully. I take into account his vulnerability with uneven surfaces, altered sensation and proprioception and difficulty in prolonged standing or walking. But, he has always been able to cope with pain and discomfort (and still does).
(iv)I find that the predominant contraindicator to a return to offshore work from a purely objective, physical point of view was the risk of damaging the free-flap graft. But, once again, I am not satisfied that this presented an insuperable barrier to offshore certification – evidently Dr Croft did not think so. Also, based on the evidence, it is unlikely that an incidental injury to the graft would create an acute management crisis of the kind that would threaten the efficient functioning of an offshore or on-site operation and I discount Dr Jenkins' concerns (see [153]) about an elevated risk of needing medical evacuation.
In my assessment the physical-medical circumstances have changed since the plaintiff's redundancy. I find that the arch of the plaintiff's left foot has begun to flatten with demonstrable anatomical changes to the foot and leg as a whole. It matters not what objective impression doctors once formed as to his gait; the anatomy is now evolving to his disadvantage. Therefore, I must give weight to all of the physical medical experts, albeit to varying degrees.
I am not satisfied that the plaintiff would now be re-certified as physically fit for routine offshore work. I find that he has limited ability to ambulate and restricted ability as to ladders and unconventional steps and accessways. He cannot stand (or even sit) comfortably for lengthy periods. I am not satisfied that he could physically cope with the requirements of regular offshore or on-site work even if he wanted to do so. I find that he is now only physically fit for short stints and, as such, his career as a permanent casual Senior Project Engineer is over. This finding does not preclude occasional on‑site or offshore work which is not supervisory (eg, as a consultant).
Other physical injuries
On 23 March 2015 the plaintiff attended his GP with right rotator cuff tendonitis and subacromial bursitis (exhibit 1.23), apparently associated with his canoeing days (ts 166).
On 28 November 2016 the plaintiff attended his GP complaining that his right knee was locking and he was referred for orthopaedic treatment (exhibit 1.28). The notes record that he had previous arthroscopies for meniscal tears associated with playing squash (ts 166).
The defendant contends that these injuries and the cycling fall in 2013 evidence contingencies which should circumscribe the assessment of the plaintiff's earning capacity but for the accident. On the evidence I am not satisfied that it is open to find that the injuries would have precluded offshore work. Indeed, the plaintiff passed a medical on 2 April 2014 in which the 2013 shoulder injury was taken into account. At best (or worst), the injuries (particularly the last two) evidence normal adverse vicissitudes that would impinge on a person's capacity for physical activity, but not necessarily earning capacity.
Occupational therapy – Ms Linda Williams' evidence
Ms Lindy Williams is an occupational therapist. She obtained a bachelor of applied science (occupational therapy) from the University of Sydney in 1993. She has 26 years' experience as an occupational therapist, educator and consultant.
She described occupational therapy as the science of human occupations and the use of aids and appliances. Occupational therapists take a holistic view of the person in the context of their subjective environment. They disaggregate activities and tasks to various domains such as sensory, psychological, orthopaedic and so on.
The defendant objected to parts of her evidence. Having been obliged by Mr Clyne to make a ruling on the spot, I dismissed the objections (ts 394, 400). However, as Ms Williams' evidence evolved, and upon later assessment, I have come to the view that many parts of it were either inadmissible or of such minimal value as to be put to one side. There are a number of reasons.
First, the purpose of expert evidence from an occupational therapist is to identify and explain any functional needs which the plaintiff may have which are so esoteric or specialised as to be beyond the fact finding capacity of a lay person (see [15]). Ms Williams' report and her oral evidence trespassed into areas that required no expert elucidation at all, such as the number of hours that should be allocated for gratuitous services (past and future).
There appears to be a forensic trend towards this practice that is to be strongly deprecated. Fact-finders are perfectly capable of receiving, understanding, assessing and making findings about evidence concerning a wide range of functional activities (such as gardening or cleaning) that do not require expert elucidation. The fact that science is capable of explaining or dealing with a normal activity of daily living does not mean the trier of fact should receive the science. Mr Droppert submitted that the current practice is merely a convenient way of collating the evidence. That cannot be endorsed: the so-called evidence is really a conclusionary submission and thus inadmissible.
Second, it would seem that Ms Williams believes that occupational therapists are sometimes at an advantage to medical practitioners because they take a holistic view. That may be so in respect of the identification and remediation of very specific functional needs, but it cannot be accepted that an occupational therapist's 'medical' opinion could be preferred to that of a doctor who practises in the co-relative field of medicine (such as orthopaedic surgery, plastic surgery, occupational medicine or psychiatry). Unless there are very exceptional circumstances (there are none in this case), occupational therapists should defer to the medical opinions or, at least, allow for possible findings based on the same. If Ms Williams had done so, she would not have recommended a mobility scooter for the plaintiff at age 60 (see [201]).
Third, Ms Williams was unable to explain some of her evidence either at all, or to my satisfaction (see ts 402 - 405, for example). As such it consisted of an ipse dixit verging on advocacy.
Fourth, she made assumptions about the plaintiff's needs which were not supported by evidence, such as by allowing for possible arthritic changes that were discounted by the doctors (ts 412). (See [194], [195] and [201] for other examples.)
I turn now to her evidence.
Ms Williams was briefed with a folio of medical evidence and medico‑legal reports. She spent several hours with the plaintiff at his home on 28 May 2018. She observed him participating in a relatively normal range of activities of daily living (indoors and outdoors) whilst he reported symptoms consistent with my findings.
Her report (exhibit 3) contains a number of photographs (which are helpful) and tables, but it is unnecessarily lengthy.
It began with background information touching on medical history, current presentation, social environment and home environment.
A section entitled 'Current functional status' covered communication, cognition, psychological/behavioural matters, sleep, pain, sensation, upper limbs and fine motor skills, mobility and physical tolerances, personal care, equipment, transport, home management and leisure. This occupied approximately 10 pages including a number of tables. Ms Williams noted that the plaintiff lacked a certain degree of active range of movement and flexibility.
Ms Williams then moved to a section entitled 'Past care' divided into four parts, namely 'Part A (periods in hospital), Part B (1 April 2011 to the end of May 2012), Part C (1 June 2012 until 31 March 2017) and Part D (the period since 1 April 2017). She concluded that the plaintiff needed 666 hours of assistance in relation to Part A, 1,006.4 hours in relation to Part B, 2,276 hours in relation to Part C and 585 hours for Part D; that is to say, a total of 4,533.4 hours over approximately 8 years.
I am unable to place much weight on any of that evidence for the reasons referred to at [178] to [179] above and [271] – [273] below.
Ms Williams dealt with 'future care' in two stages, up to age 65 and after age 65, by estimating a number of hours per week for 'heavy domestic' or 'home maintenance/gardening/lawns'. She allowed nothing for personal or light domestic services for which (correctly) she saw no need.
Her evidence was of some assistance in relation to the identification of 'heavy domestic' work which involved manipulating tools and heavy garden machinery which, she felt, could be risky. She referred to potential difficulties with balance, twisting and so on. Evidence of that kind does fall within the scope of expert evidence, and I found it to be helpful, but in my assessment it went no further than evidencing that the plaintiff needs assistance for some functional categories, but can get by if he is careful with others.
Ms Williams also made the point (ts 411) that a need is sometimes created because of the desirability of allowing the injured person to conserve energy for other activities, such as employment, and I accept that evidence.
Ms Williams' evidence then moved into the employment arena. She dealt with the plaintiff's past employment, including the period between the accident and his redundancy in a way which was mostly inadmissible as trespassing into the specialist area properly covered by psychiatrists and occupational physicians. I place no weight on that evidence.
As to future employment prospects, Ms Williams noted Drs Jenkins' and Slinger's opinions that the plaintiff had never been fit to return to work at sea and mentioned, as evidence, the plaintiff's 'failed attempt to return to offshore work in 2011'. She concurred with their opinion. I am not satisfied that she was any more qualified to express that opinion than I am based on the medical evidence, but in any event she relied on an incorrect premise: the plaintiff's return to offshore work was not contra-indicated in the physical sense that (I infer) she understood it to be (see [169]).
Ms Williams disagreed with the suggestion that the plaintiff was 'fit for sedentary office duties' of the kind that he was doing as Technical Manager. That cannot be accepted because he was performing them satisfactorily and intended to continue (but for his redundancy, which was on economic grounds: see [242]).
Ms Williams opined that there were 'practical issues in the workplace and the psychological impact on' the plaintiff. She listed the following factors:
•Ongoing significant levels of depression;
•All the psychological issues as discussed earlier in this report are ongoing;
•Hypervigilance, anxiety and intolerance on the road driving;
•Personality changes resulting in difficulties working in a team;
•Avoidance with interacting with people;
•Reduced tolerance of sitting at a desk; and
•Chronic pain.
Ms Williams' opinion is correct in some aspects, but with great respect to her, it is little more than a sweeping and conclusionary generalisation which should carry no weight other than as laying a foundation for an opinion as to occupational (workplace) aids which could assist the plaintiff in the psychological domain, but as to which she actually gave no evidence.
Ms Williams recommended that the plaintiff have the following domestic appliances:
•Recliner lounge chair with stand‑up function
•Shower chair
•Tilting mobile table
•Hand held shower hose and grab rails
•Walking stick
•Mobility scooter from age 60. She had in mind a four wheel 'Pride' model with long distance battery capacity.
I accept that a special lounge chair will enable the plaintiff to elevate his legs for pain relief and is entirely suitable, as is a tilting mobile table, the needs for which were demonstrated in her report and in Ms Bicknell's evidence. Ms Williams' other recommendations are redolent of generic advocacy which ignores the plaintiff's personality and physical circumstances.
As to his personality, his entire case is based on the proven fact that he is a stoic survivor who loves an active life and will pursue it as much as he can and, indeed, is doing so. He can walk and does everything he can to do so without limping (ts 234). He can ride a bicycle for recreation. Who knows: perhaps he may develop an interest in equestrian, shooting, archery, aviation, animal breeding or a myriad of similar leisure activities or hobbies which, on my findings, are within his existing aptitudes and physical capabilities.
As to physical aspects, it is inconceivable that the plaintiff will need a shower chair, walking stick or mobility scooter at any time in the foreseeable future or that he will even use them even if he needs to do so. No doctor has suggested the possibility. Her evidence is at odds with the fact there is no risk of arthritis and the plaintiff currently drives a manual car (see [141]).
Finally, Ms Williams dealt with the plaintiff's rehabilitation needs, namely eight hours across his lifetime for further occupational therapy and 12 hours for assessment and counselling.
The economic evidence
Both parties adduced evidence from eminent experts in labour market economics, namely Professor Charles Mulvey (for the plaintiff) and Professor Philip Lewis (for the defendant).
They each addressed slightly different aspects of the labour market and their evidence may be regarded as consistent inter se and complementary.
They both came to the same general conclusions, namely that a decline in the minerals and energy sectors from approximately 2014 had significant negative effects on the West Australian economy and in particular on the employment of engineers and managers.
Professor Mulvey pointed out that full‑time employment fell significantly between 2014 and 2016 when most companies were seeking to cut costs on the operational side (ie, retrenching, as occurred at DOF).
However, he pointed out, there is evidence that investment in the mining and resources sector is increasing and that the prospects are positive for all sectors including oil and gas.
Professor Lewis agreed with those conclusions.
As for the oil and gas sector, I have no hesitation in accepting Professor Lewis' well researched and cogently presented report, supported as it is by the anecdotal evidence of lay witnesses called by the defendant.
Professor Lewis charted the economic fortunes of the oil and gas sector in Western Australia over the last 10 years when the industry grew very significantly. Employment rose continuously from approximately 10,000 persons in 2006/07 to 23,000 persons in 2014/15. This occurred in the context of 'exceptionally high prices for both oil and gas which drove profitability and investment'.
However, there was a dramatic fall in the prices of oil and gas between 2014 and 2016 with greater volatility in the gas division. The 'employment prospects for engineers deteriorated significantly after 2012/13'. Retrenchments in the oil and gas sector mirrored the Western Australian economy as a whole in which retrenchments rose from just under 14,000 per quarter in May 2014 to over 25,000 per quarter in August 2016.
However, there is evidence that the outlook for the oil and gas sector is positive, which should result in improved employment prospects. He said:
In the cases of mechanical engineers, senior project engineers and technical managers they would have been expected to be particularly affected by the industry downturn and benefit most from a revival in the industry.
Professor Lewis addressed age distribution in the oil and gas sector. He said that 'statistics suggest that many workers in the oil and gas industry might have retired after they were retrenched in the downturn'. He said that there were 'relatively few mechanical engineers in the industry … over 50 years of age' and that few were employed offshore beyond 44 years of age. Data shows that there is much lower representation of workers over 45 years old in the managerial group than there is for the population as a whole.
Professor Lewis' evidence is reliable and I accept it. The issue is whether the industry data has much relevance in the plaintiff's particular case.
Before addressing that aspect I turn to the evidence of lay witnesses who testified about the plaintiff's employment with DOF and his redundancy and gave anecdotal evidence about the local industry.
Ms Claire Forrest has been DOF's human resources since 2011.
She testified as to her working relationship with the plaintiff and in particular provided some detail about the creation of the Technical Manager position for him. She said that she was aware at the time that he had had an accident, but he never discussed it with her. She said he was very private and professional.
In 2015 DOF cut salaries across all categories by 10% because of the downturn in the oil and gas sector. This was done to minimise redundancies.
When the redundancies began DOF tried to be objective and assess each and every candidate on the basis of their value to the company. Staff were rated in two broad categories, ie, as to whether they were fee-earners (chargeable) or non‑chargeable. Non‑chargeables were an overhead and the plaintiff's role mostly fell into that category.
She said that he was highly rated and very good at what he did, which included actually bringing in work for the company.
She testified that it was difficult to say if the plaintiff would have faced redundancy if he was still working as a Senior Project Engineer in March 2017, but said that DOF was always reluctant to let quality senior personnel be retrenched and, in effect, it would have been a last resort in the plaintiff's case (ts 358).
Ms Forrest said that DOF has some Senior Project Engineers who are more than 50 years of age.
Ms Isabell de Casamajor was employed by DOF from 6 December 2010 until 23 March 2018 when she herself was made redundant. She started as a project manager and was gradually promoted to Regional Engineering Manager.
She first met the plaintiff when they were both working on the Bien Dong project out of the Perth office in or about 2012. She was working as a Senior Project Engineer. The plaintiff was managing the project mobilisation which was in an early, planning phase. She left that project in approximately February 2013 to work on a project in the Philippines.
Their paths crossed from time to time. As Regional Engineering Manager she became his superior in November 2013. They worked closely together and had a very good working relationship. His role included assisting her in managing engineering resources, looking after graduate engineers and monitoring others. He shared some of her responsibilities as engineering manager so as to ensure continuity.
The plaintiff was a very private person and she was not aware of his elite sporting history. She first learnt about the accident when he was already Technical Manager when he explained to her why he could no longer work offshore.
Ms De Casamajor testified that redundancies began at DOF in 2014 and continued every year since. This was caused by a reduction in the quantity of work.
In cross‑examination she testified that the plaintiff was very highly thought of and would not have been made redundant in 2017 if he was still fit for work as a Senior Project Engineer. According to the objective criteria there were at least two other employees who would have been made redundant before him.
She knows at least three Senior Project Engineers who are older than 50 years. She said that managers go offshore all the time, even over 60 years of age, and after retirement in some cases.
Mr Richard Rickett was DOF's general manager in Western Australia between July 2013 and July 2015. He then became commercial manager. He is now engineering manager for Fugo Australia Marine (a competitor of DOF).
He testified that the plaintiff was a very good employee and performed the difficult role of Technical Manager very well. He was very good at planning man hours and allocating labour to contracts.
At some point he and a few others at DOF became aware that the plaintiff was having trouble psychologically. He noticed that his mood was down at times and he discussed this with Ms Forrest. He ensured that the plaintiff was given whatever time off he needed.
He testified that the first signs of the economic downturn and redundancies in the industry emerged in 2013, but did not affect DOF until 2014 because of pre‑existing work. Redundancies began and continued until he left the company at the end of June 2017.
Mr Rickett explained the procedure for selecting candidates for redundancy, but he was not involved in the plaintiff's redundancy. If he had been he would have endeavoured to prevent the retrenchment because he believed the plaintiff was a useful resource.
Mr Rickett testified (ts 472) that when he was at DOF contract (casual) employees tended to be made redundant in preference to permanent employees. But, he also testified that there would have been less likelihood of the plaintiff being made redundant in 2017 if he had still been working as a Senior Project Engineer.
He said that the majority of Senior Project Engineers are in the 30 - 40 year age bracket. He testified (ts 462) that DOF's priority was in recruiting and retaining a younger type of workforce, but older employees in their 50's and even late 50's were still hired, usually on contracts and/or when the company was busy (say in 2012 and 2013). He personally knows of people who have been working in the offshore sector into their 50's and 60's.
In cross‑examination Mr Rickett was asked how market forces affect work in the decommissioning sector of the offshore industry. He was non‑committal, but the general tenor of his evidence was that such work tends to be postponed as long as possible because it incurs costs for no monetary return. Nevertheless, it is 'starting to happen more and more these days, more because facilities are becoming older' (ts 463).
The Plaintiff's Loss of Earning Capacity – Findings of fact
There are four key issues in relation to the plaintiff's past and future economic loss:
(i)Why he stopped doing offshore and on-shore work as a Senior Project Engineer.
(ii)The reasons for his redundancy.
(iii)His employment prospects but for the accident.
(iv)His residual employment prospects.
As to issue (i), I accept the plaintiff's evidence as to his reasons for ceasing offshore and on-site work (see [74]). Whilst I have accepted Dr Gillett's opinion that the objective evidence supported the opposite decision (and I note Dr Croft's certification to that effect), the plaintiff's subjective decision was substantially informed by his adverse self‑assessment as to his ability and allied lack of confidence. He testified that he found the work difficult and I accept that evidence. It was in fact his professional responsibility to self-assess in this way and he made a merits-based decision which would not have been easy for him.
Furthermore, I am not satisfied that the plaintiff would have obtained medical clearance for offshore work if his Post-Traumatic Stress had been taken into account by Dr Croft. Drs Gillett and Williams were quite clear about this and the reasons are equally clear. A stressful, isolated working environment which relies on efficiency and teamwork is no place for a person with significant psychiatric problems.
Therefore, I find that the plaintiff's decision to cease offshore and on-site work was causally related to the accident. And if there be any doubt, the facts are very similar to Medlin in which the plaintiff retired himself from a senior managerial position because he believed that he could no longer perform to the required standard.
As to issue (ii), in the context of the expert, economic evidence, I accept the evidence of Ms Forrest, Ms de Casamajor and Mr Rickett and find that the plaintiff's position as Technical Manager became redundant for wholly economic reasons and his retrenchment was not attributable to his performance or accident-related injuries or psychiatric illness. Such would have been unjustifiable on the evidence that was before DOF management because the plaintiff was highly thought-of, performing well in all domains and ostensibly happy. Occasional issues about his manner with people were not particularly significant and were being managed. On the other hand, the offshore oil and gas industry was in decline and workers were being retrenched. Based on the evidence, it is reasonable to infer that DOF regarded his non‑chargeable role as Technical Manager to be financially untenable as at March 2017.
As to issue (iii), I firstly find that the plaintiff's age did not present an obstacle. I am satisfied that retirement age is a personal matter for individuals to decide (provided they are certified fit). I find that there is a high probability that the plaintiff would have been an exception to the norm and continued fit for purpose as a Senior Project Engineer until now at least. He defies statistical comparisons by virtue of the late start to his career as a Senior Project Engineer, his physical fitness and his extraordinary determination. He was already 49 years old when the accident occurred and showing no signs of ceasing work as a Senior Project Engineer.
I turn now to consider opportunities the plaintiff would have had to exploit his desire to work. I firstly find that he would have continued with DOF as a Senior Project Engineer or a similar chargeable role until March 2017 at least. On all the evidence it is clear that DOF's redundancy program would not have affected him at that stage because he would have had much stronger claims to retention than some other Senior Project Engineers on DOF's books. He was very good at his work and good Senior Project Engineers such as him were made redundant reluctantly. The company policy was to keep them on if possible and his redundancy would have been a last resort.
Having said that, I accept Mr Rickett's evidence and find that DOF actually had very little work for casuals after 2017.
Overall, I have come to the view that it is probable that if he had still been working as a Senior Project Engineer the plaintiff would have been made redundant by DOF no later than early 2018, particularly if Ms De Casamajor's case is any guide.
Further, I am not satisfied that the plaintiff would have then obtained full-time work elsewhere as a Senior Project Engineer or even in an office for the following reasons:
(i)Based on the economic evidence, project-orientated employment in the energy sector or the wider engineering workforce (on a permanent or casual basis) has been problematic since March 2017.
(ii)Full‑time office work (even in oil and gas) is anathema to him. Indeed, prior to the accident, virtually the only paid employment he ever held as a mechanical engineer was related to offshore or on-site work. He enjoyed an occupational niche, but had little interest in a generic career.
(iii)Notwithstanding his sanguine beliefs (ts 122), on the evidence (see [237]) I am not satisfied that his sub-speciality in decommissioning would have helped him during the industry downturn.
(iv)I accept the expert evidence that suggests that the oil and gas sector is picking up, but on the evidence I am not satisfied that it has returned to the levels of 2009 to 2013/14 or that it will do so in the foreseeable future. There is very little evidence of the likely market at DOF or its local competitors (bearing in mind that, on the evidence, I can only find that the plaintiff would have been employed by a company with an office-presence in Perth).
(v)There is very little evidence about the market for work of a CSR or any form of consultancy, but opportunities would have been very limited up to now because of the state of the market.
The assessment of damages (a fortiori findings about contingencies) is not a precise science. Having regard to market conditions, his pre-accident fitness, qualifications and determination, I am satisfied that the plaintiff would have enjoyed an earning capacity of 100% of his pre-accident capacity until the end of 2017 and thereafter at 60 - 70% until his mid 60's (say 65 years of age). I shall adopt 70% because the plaintiff has conceded (somewhat contrary to his interests) that he has a 70% retained capacity for work as a generalist engineer
As to issue (iv), I find that the plaintiff's residual employment and earning prospects are restricted for the following reasons:
(i)He has been unfit to return to any form of professional employment since being made redundant because of his mental health issues. This is most directly related to stress and anxiety which was triggered by his redundancy, which was, arguably, a novus actus as contended by the defendant. However, I find that the accident was causally relevant for two reasons. First, the plaintiff's physical symptoms and depression also played a material role in the psychiatric relapse. (See, inter alia, Dr Atartis cited at [120] and Dr Edwards-Smith at [128].) Second, if the accident had not occurred the plaintiff would have been employed as a Senior Project Engineer when he was made redundant and would still have had a retained capacity in that role of 60 - 70% (see [248]). In effect, what I am saying is that his accident-related loss of earning capacity has informed his post-redundancy financial stress and that is sufficiently related to the accident to be causally important at law.
(ii)I am satisfied that the plaintiff's psychiatric symptoms will improve reasonably quickly with the cessation of litigation, the award of damages and the alleviation of some of his financial stress.
(iii)Office-based employment is contraindicated, save for part-time, or occasional casual contracts either in oil and gas or general engineering or project management. As it happens, some work is presently available: DOF recently offered the plaintiff casual employment doing estimating work (exhibit 6.40). So, I am satisfied on the balance of probabilities that he has some retained capacity to work in a market for which his professional skills are occasionally in demand (including the oil and gas industry). With improvement in his psychiatric health which I have found will occur, he can exploit that capacity.
(iv)Whilst it is apparent from the evidence that employment is not easily obtained, people of the plaintiff's skills, history and determination do not do so by sending out proforma applications from their computer, as he has been doing. More is achieved by word of mouth, contacts and initiative (and this applies to the oil and gas sector as well: see Mr Rickett's evidence at 472 - 3).
(v)Any form of full-time manual work such as labouring is completely contraindicated. The plaintiff's subjective decision to eschew such work is evidence-based and reasonable and prudent having regard to his daily symptoms and the risk of making a mistake and/or damaging the free-flap graft.
(vi)He is fit for a range of casual employments with restrictions, such as machinery operation or driving (which he regularly does on the Toodyay property). But he cannot be expected to drive and or operate machinery for long periods of time without rests, which would render him uncompetitive on the open labour market.
Assessment of damages
I turn now to the assessment of damages itself.
For ease of assessment I shall proceed on the basis that damages are assessed as at 28 September 2018 when the plaintiff provided up to date calculations.
Past loss of earning capacity
There is no dispute as to the plaintiff's entitlement for the period of hospitalisation and convalescence between 21 November 2010 and 21 April 2011. Similarly, there is no dispute that he suffered no economic loss for a substantial period after he returned to work (albeit on light duties initially).
The dispute has two aspects. First, the defendant contends that the plaintiff's earnings as Technical Manager exceeded what he would have earnt if he had been working as a Senior Project Engineer. Second, the defendant contends that the plaintiff would not have enjoyed employment as a Senior Project Engineer beyond his redundancy date on 15 March 2017. I have already ruled on this second aspect at [246] above.
I also find for the plaintiff as to the first aspect. Whilst it is true that the plaintiff's nominal salary as Technical Manager was higher than his earning capacity as a Senior Project Engineer, the fact is that he was unable to fully exploit the former because of his accident related injuries and in particular his psychiatric illness.
The plaintiff's methodology (which I accept) predicates a two stage process namely, establish a Benchmark amount representing the plaintiff's earning capacity as a Senior Project Engineer and then subtract his actual earnings since then. The differential varied from financial year to year and, indeed, there was no loss in some years.
The plaintiff contended for a Benchmark figure of $243,298 gross per annum ($4,678 per week or $2,979 net per week). But, the Benchmark amount makes no allowance for the 10% firm-wide pay cut which DOF implemented in 2015 and which is reflected in the actual earnings side of the ledger. I find that the Benchmark amount should be 90% of $2,979 in the relevant years (ie $2,681).
Against this background I shall use the plaintiff's calculations and find as follows as to the plaintiff's past loss of earning capacity:
(i)Financial year ended 30 June 2011: $69,447.
(ii)2012 and 2013 financial years: no loss.
(iii)2014 financial year: $15,337.
(iv)2015 financial year: $2,704.
(v)2016 financial year: $17,819 x 90% = $16,037.
(vi)1 July 2016 to 15 March 2017: $16,946 x 90% = $15,251.
(vii)15 March 2017 to 30 June 2017: $44,685 x 90% = $40,216.
(viii)2018 financial year: the award is $101,584 comprised as follows:
•1 July to 31 December 2017: $2,681 x 26 = $69,706
•1 January to 30 June 2018: $69,706 x 70% = $48,794
•Less actual earnings of $16,916
(ix)1 July to 28 September 2018: $2,681 x 13 wks x 70% = $24,397.
(x)Total for lost earning capacity since the accident: $284,973.
Interest in the sum of $68,393 should be added calculated as follows: $284,973 x 8 years x 3%
Allowance should also be made for past loss of superannuation in the sum of $61,295 inclusive of interest, as calculated in the plaintiff's Schedule ($66,295), adjusted by a global figure of $5,000 to allow for the 90% and 70% factors referred to above.
In summary, the award for past economic loss is $414,661.
Future loss of earning capacity
I proceed as follows:
(i)The plaintiff would have had an earning capacity of 70% of the Benchmark ($2,681) but for the accident, and a retained earning capacity of 70% of average fulltime earnings of an office-based generalist engineer ($1,805 net per week: see exhibit 3.5 and the plaintiff's submissions at par 6m).
(ii)I shall assess the loss from 28 September to age 65 years. I decline to add a further global sum for contingencies, ie that he would have worked longer, or conversely will in fact suffer an ongoing period of total incapacity, given my finding that the plaintiff would have had 70% earning capacity as a Senior Project Engineer which is at the high end of the range (see [248]).
(iii)Similarly no deduction is required for adverse contingencies (such as market forces in the relevant employment sectors, or the usual vicissitudes of life) which I have also been factored into the generous 70% retained earning capacity.
I assess loss of future earning capacity thus:
(i)Capacity but for the accident: $2,681 net per week x 70% = $1,876.
(ii)Retained capacity: $1,805 net per week x 70% = $1,263.
(iii)Loss $613 per week.
(iv)Total loss to age 65 (using the 6% multiplier: 333.7): $204,558.
The plaintiff seeks an additional global allowance for superannuation at the gross loss equivalent multiplied by 9.5%, namely approximately $80,000. This is hard to assess if the plaintiff was planning to work as a consultant post-retirement. I assess $30,000 on a global basis, which brings the total award for future loss of earning capacity to $234,558.
Past and future special damages (medical)
The plaintiff claims $12,500 by way of an indemnity for past medical treatment met by Medicare Australia, and that sum is awarded.
As to future medical expenses, the plaintiff claims for four visits per annum to his general practitioner, which is reasonable. It will be necessary for his physical injuries (in particular the free-flap graft) to be continually monitored for life. I also find that his psychiatric health will require occasional monitoring in the longer term even though it is likely to be in substantial remission in the foreseeable future. The plaintiff also claims for various medications and pressure stockings, all of which is reasonable. The award is $36,199 ($51 per week for life at a multiplier of 709.8).
The plaintiff also claims for psychiatric medicines for at least two years and maintenance medication in the longer term which is entirely supported by the evidence. The award is $5,000. In total, the award for future medical treatment expenses is $41,199.
Gratuitous and other services
Gratuitous and other services are limited to services of a domestic or nursing and attendance nature for which a need has been created by the compensable injuries (Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327; Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161). No damages are to be awarded if the services would have had to be provided to the plaintiff but for the injuries (see also s 3D(2) of the Act).
The question is not what are the ideal requirements for the plaintiff, but rather what are his reasonable requirements? The assessment involves a comparison of cost against benefit (Sharman v Evans (1977) 138 CLR 563, 573 Gibbs, Stephen JJ).
The plaintiff also claims reimbursement for household maintenance and gardening activities such as lawn mowing that were carried out by paid contractors ($7,400).
The plaintiff's schedule of damages dated 27 September 2018 states that he has received assistance detailed in the report of Ms Williams dated 18 June 2018 set out in an accompanying table (adjusted for the evidence of Ms Bicknell). The table is based on the estimates of Ms Williams and claims a total of 3,948.4 hours up to 31 March 2017 comprising 33.3 hours per week average whilst the plaintiff was convalescing (almost 5 hours per day which is not supported by direct evidence), 16.8 hours per week from 22 April 2011 to 30 May 2012 (when he was working full-time, much of it offshore or on-site), and 9.1 hours per week from 1 June 2012 to 31 March 2017 (when he was working full-time, driving, cycling and reasonably mobile). Two hours per week is claimed since 31 March 2017.
One only has to peruse the figures up to 31 March 2017 to question them in the light of the relevant principles and the evidence and my comments (to which I have parenthetically alluded).
Ms Williams allowed 164 hours of visiting time during three hospital admissions that does not fall even within the domain of gratuitous services. She also referred to travelling time, but there is very little evidence that anyone drove the plaintiff to his appointments. She allowed two hours per day for indoor domestic assistance when according to her own report (p15) and other evidence the plaintiff never did much at all in the indoor way before the accident (see ts 54 - 55 and [273] (i) and (iv) below).
I accept that the plaintiff may have received some nursing-related assistance from his wife when he was not hospitalised prior to his return to work. But there is no evidence to make a firm finding and I have allowed for it at [279] below. The evidence supports the following findings which are based on the evidence as to the plaintiff's personal domestic contributions before the accident and thus likely contributions but for the accident:
(i)He had little involvement in indoor domestic matters which was the province of Ms Bicknell.
(ii)He attended to all of the maintenance of the family dwelling and grounds.
(iii)He attended to one off improvement projects in which he did most of the trades himself.
(iv)Owing to his employment activities offshore and on-site, and his extensive recreational commitments, he must have performed services on an ad hoc rather than a regular basis and frequently must have had little time for anything of that kind.
(v)The maintenance role associated with the Kalamunda investment property would not have been particularly time consuming.
(vi)When the Toodyay property was acquired the plaintiff and Ms Bicknell knew of his limitations which have been confined to certain specialist activities anyway (eg, stone-masonry and roof/wall carpentry).
(vii)Having regard to Ms Williams' evidence ([192]), the plaintiff will need to exercise care carrying out tasks that he can actually perform (such as vacuuming and sweeping), and such tasks may become more tiring than for more able-bodied people of his age.
In the light of these findings I find (subject to [275] (i) and [279]) that an assessment of 4 hours per week at all material times until 31 March 2017 is adequate, calculated at (say) 3 hours per week for regular matters and an average of 1 hour per week for one off improvement projects. An allowance of 2 hours per week is conceded since 1 April 2017. That is appropriate since the plaintiff has not been working (nor will he work fulltime in future) and has thus been in a position to manage time and tasks.
Thus, for past services the award is $47,928 calculated as follows:
(i)28 November 2010 to 28 April 2011: 21 x 8 x $26.82 = $4,505.76.
(ii)22 April 2011 to 30 May 2012: 57 x 4 x $28.94 = $6,598.32.
(iii)1 June 2012 to 31 March 2017: 251 x 4 x $31.50 = $31,626.
(iv)1 April 2017 to 28 September 2018: 78 x 2 x $33.32 = $5,197.92.
The above assessment includes all forms of household services. There is an additional allowance for actual out of pocket expenses ($7,400).
Interest should be allowed on past gratuitous services in the sum of $13,278 comprising: $55,327 x 3% x 8 years.
Future paid services are claimed to age 85 and are assessed in the sum of $42,570 using the 6% multiplier and a discount for contingencies: $33.32 x 2 x 709.8 x 90% = $42,570.
The plaintiff claims the sum of $10,000 for hospital visitations by family and friends (65 days at $150 per day) pursuant to the doctrine in Wilson v McLeay [1961] HCA 56; 106 CLR 523. There is not a lot of evidence as to the number of hours involved and the doctrine does not predicate that all visitations are compensable. Nevertheless, I am prepared to award the amount as claimed since the plaintiff must have needed significant psychological and nursing support and, indeed, a family friend provided physiotherapeutic advice in 2011.
The plaintiff claims $4,187 for equipment expenses and that is approved on the basis that in the longer term future the possibility of walking sticks, crutches and so on cannot be excluded. A claim for occupational therapy and rehabilitation counselling in the sum of $1,480 and $2,221 is dismissed as being unnecessary. The plaintiff will need no assistance in either domain.
The plaintiff claims $5,000 on a global basis for past and future travel and transportation. Again I am satisfied that that claim is justified (notwithstanding the absence of particulars) having regard to evidence of some past needs and the probability that the plaintiff's ability to drive will be compromised in the longer term.
Non pecuniary loss
Pursuant to s 3C of the Act, I am required to make an award assessed as a percentage of a most extreme case ($418,000). The approach to that assessment is discussed in Den Hoedt v Barwick[2006] WASCA 196 ([5] Wheeler J and [95] - [98] Buss J). I must assess where this case sits in a scale of which a most extreme case (such as catastrophic injuries) attracts the maximum.
The plaintiff submits that non pecuniary loss for pain and suffering and loss of amenities of life should be assessed on the basis that his claim represents 50% of a worst case. The defendant submits that the assessment should be in the range of 23% to 25% of a worst case.
The plaintiff has been injured in both the physical and psychiatric domains.
So far as the physical domain is concerned, the plaintiff's injury is significantly less serious than an amputation, paralysis or similar motor restriction. He has constant discomfort and experiences regular severe pain, but has reasonable mobility.
His free-flap graft must be protected, which necessitates a cautious approach to physical activity.
Overall, as a result of his physical injuries the plaintiff has lost the ability to carry out and enjoy a wide range of leisure activities either at all or to a standard which would satisfy him. This includes the pleasure he gained from his challenging and outdoor-orientated employment. However, given his personality, I am satisfied that there may be an array of challenging recreational activities open to him for which he has a suitable aptitude (I have mentioned a few at [200] just to illustrate this point).
There is significant scarring on both lower limbs, although none of it is cosmetically confronting.
Turning to the mental domain, the plaintiff has been extremely ill at times and has suffered greatly. Together with the physical injuries, this has limited his ability to enjoy recreational and allied activities. It has also substantially affected his interpersonal and occupational happiness. He will require ongoing treatment, but will improve as current stressors are mitigated (see [249 (ii)]). He will always be at risk of relapse.
If the physical and mental domains were in fact stand-alone matters, I would assess them at 25% and 15% of a worst case respectively. In my opinion full accumulation (40%) would be excessive having regard to the comorbidity or concurrence of the effects of the various injuries. In my opinion the plaintiff's loss should be assessed at 30% of a most extreme case, namely $125,400.
Summary
In summary I assess the plaintiff's damages as follows:
(i)Past economic loss: $414,661.
(ii)Future economic loss: $234,558.
(iii)Past and future special damages (medical): $53,699.
(iv)Past and future gratuitous and like services: $130,363.
(v)Non-pecuniary loss: $125,400.
(vi)Total: $958,681.
The plaintiff is entitled to judgment in the sum of $479,340.50.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
ASSOCIATE TO JUDGE MCCANN13 DECEMBER 2018
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