Caldwell v Coles Supermarkets Pty Limited
[2010] NSWDC 136
•11 June 2010
CITATION: Caldwell v Coles Supermarkets Pty Limited [2010] NSWDC 136 HEARING DATE(S): 3 and 4 June 2010
JUDGMENT DATE:
11 June 2010JURISDICTION: Civil jurisdiction JUDGMENT OF: Johnstone DCJ DECISION: 1. Judgment for the plaintiff against the defendant for $396,644.
2. Defendant to pay the plaintiff’s costs.
3. Leave to apply for some other costs order within 14 days.CATCHWORDS: PERSONAL INJURY - slip and fall on defendant’s premises - whether the injury was caused by breach of duty - whether the plaintiff was guilty of contributory negligence - whether the plaintiff’s damages should be reduced pursuant to s 151Z(2) of the Workers Compensation Act 1987 - DAMAGES - dispute as to the extent of the plaintiff’s disability - whether any reduction in his earning capacity has been or will be productive of financial loss LEGISLATION CITED: Civil Liability Act 2002
Workers Compensation Act 1987CASES CITED: Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7
Hackshaw v Shaw [1984] HCA 84
Khan v Polyzois [2006] NSWCA 59
Medlin v State Government Insurance Commission [1995] HCA 5
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364PARTIES: Michael Patrick Caldwell (Plaintiff)
Coles Supermarkets Pty Limited (Defendant)FILE NUMBER(S): 09/336057 COUNSEL: Mr A Lidden SC with Mr Khandhar (Plaintiff)
Mr P Menary (Defendant)SOLICITORS: Brydens Law Office (Plaintiff)
Lander & Rogers (Defendant)
REASONS FOR JUDGMENT
The proceedings and the issues
1. The plaintiff claims damages in respect of injuries received on 27 December 2006 in a fall at the defendant’s premises when he slipped on oil or grease on the floor adjacent to a delivery dock.
2. Liability was denied. Ultimately, the only contest related to causation. The defendant contended that the plaintiff did not prove it was the condition of the floor that caused his fall. Alternatively, it alleged contributory negligence. Finally the defendant alleged that the plaintiff’s employer was negligent such that if the defendant were to be found liable, the plaintiff’s damages should be reduced pursuant to s 151Z(2) of the Workers Compensation Act 1987.
3. The defendant also disputed the extent of the plaintiff’s disability and contended that any reduction in his earning capacity is not and will not be productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5 as cited in Khan v Polyzois [2006] NSWCA 59 at [39].
The accident on 27 December 2006
4. The circumstances surrounding the plaintiff’s accident are not complicated, and by the end of the trial were largely undisputed.
5. The plaintiff was employed by Linfox Australia Pty Ltd as a truck driver. On 27 December 2006 he drove his truck to the defendant’s store at Mona Vale to deliver a load of goods. He had only been to this store on one previous occasion. After the goods were unloaded by the defendant’s storeman, the plaintiff went to the rear of the truck to check that the roller door was closed, finding it was still ajar. He closed the door and latched it. Then, as he turned around he slipped, lost his balance and fell against a wall, before falling into a pit, injuring his left shoulder. He crawled out of the pit, but couldn’t get up. He called out and the storeman came to his aid. He noticed that the area on which he fell was oily and greasy. Later that day he found oil and grease all over his clothes, and on his legs: see Exhibit D.
Liability
6. The plaintiff’s case is that he slipped on an oily greasy substance on the floor that shouldn’t have been there. He was unaware of the presence of the slippery substance on the floor. The area in which he was required to enter behind his truck was confined and the state of the floor was not readily apparent.
7. The duty to take reasonable care requires an occupier of premises to protect entrants from risks of injury that can be foreseen and avoided: Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [90]. What is reasonable will vary with the circumstances of the plaintiff’s entry upon the premises: Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7.
8. The measure of the discharge of the duty is what a reasonable person would, in the circumstances, do by way of a response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84.
9. Section 5B(1) Civil Liability Act 2002 applies:
“(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.”
10. Counsel for the defendant submitted that the plaintiff failed to establish that the floor was slippery, and that the accident would not have occurred if the area had been cleaned. The basis for this submission was that the photographs tendered depicted a large dirty area, probably contaminated by grease and oil. He went on to quote from the report dated 18 February 2010 of Mr Neil Adams, the expert called on behalf of the plaintiff, as follows:
“The floor in the relevant section of the loading dock comprises textured concrete. Surfaces of that type are generally highly slip resistant, even when wet, providing they are not contaminated with lubricants such as oil or grease.”
As an extrapolation from this opinion, it was submitted that the plaintiff did not prove that the degree of friction at the point of the plaintiff’s fall was sufficient to cause his fall.
11. The problem with this submission is that it is contrary to the plaintiff’s unchallenged evidence as to the presence of oil or grease. The storeman who came to the plaintiff’s aid was not called to describe the state of the floor. I find, therefore, that the plaintiff did slip and fall, and the cause was a contaminant on the floor that could and should have been regularly cleaned.
12. I am satisfied that there was a foreseeable risk of serious injury that was not insignificant. I am further satisfied that the probability was that harm would have occurred if care was not taken, of a likely serious nature. The burden of the precautions that could and should have been taken were simple and inexpensive, and there was nothing in the social utility of any activity that created the risk of harm that would gainsay the need for remedial steps to be undertaken.
13. In all the circumstances, a reasonable person in the position of this occupier would have taken precautions against the risk of harm presented by the presence of the slippery contaminant on the floor at a point where truck drivers were required to open and close the door of their trucks.
14. For these reasons I find that the defendant did not take such care as was reasonable in the circumstances and was in breach of its duty of care, that breach having caused the plaintiff’s injury.
Contributory negligence
15. I turn now to the defence of contributory negligence. This issue now falls to be considered in the context of s 5R of the Civil Liability Act 2002, which provides:
“(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”
16. The defendant carries the onus of proving contributory negligence. It was but faintly suggested that the plaintiff went into a prohibited area. The suggestion seems to have come from the defendant’s only witness, Mr Brockington, a supervisor employed by the plaintiff’s employer, who carried out a so-called investigation of the accident some weeks after it occurred. His evidence, however, was so discredited that even counsel for the defendant distanced himself from it. His evidence was completely unreliable and I reject it. The evidence established, to the contrary, that truck drivers had to enter that area to attend to the doors of their trucks.
17. The defendant was left with the proposition that a person in the place of the plaintiff could and should have moved his truck forward before going to the rear to attend to the door.
18. Counsel for the plaintiff submitted that the evidence failed to demonstrate the extent of the contaminant, and that moving the truck would not have obviated the risk.
19. For my part, I doubt that a reasonable person in the position of the plaintiff would be required to move his truck forward in the circumstances as I have described them above. But the reality is that this risk was simply not reasonably foreseeable to this plaintiff.
20. I am not satisfied that the plaintiff failed to take reasonable care for his own safety. I find, therefore, that he was not guilty of any contributory negligence.
Section 151Z(2) of the Workers Compensation Act 1987
21. The defendant contends that the plaintiff’s entitlement to damages should be reduced by reason of the negligence of his employer, Linfox Australia Pty Ltd, in breach of its non-delegable duty of care to the plaintiff. It sought a deduction amounting to 25%.
22. Section 151Z(2) of the Workers Compensation Act 1987 provides:
“If, in respect of an injury to a worker for which compensation is payable under this Act:
- (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,
the following provisions have effect:
(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,
(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,
(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:
(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and
(ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.”
23. The defendant’s contention was that the plaintiff’s employer made no attempt to go and inspect the relevant area, and had no system for informing the defendant of problems encountered by its truck drivers at the loading dock. It was submitted that the proposition was made good by the evidence of Mr Brockington. But it wasn’t. The reality is that there was no evidence as to the arrangements between the defendant and the plaintiff’s employer in relation to inspection of the area, or problems encountered in the loading and unloading procedures at this loading dock.
24. The onus for establishing a basis for the application of s 151Z(2) of the Workers Compensation Act 1987 rests on the defendant. That onus was not discharged, and the defence fails. The plaintiff’s damages are not, therefore, subject to any reduction.
Assessment of damages
25. I turn now to the determination of the plaintiff’s entitlement to damages. The damages to be awarded fall to be assessed under the general law as modified by the Civil Liability Act 2002. The plaintiff was born on 1 January 1966 and is now 44. At the time of his fall he was 40. He is married with two young children.
26. The accident occurred on 27 December 2006. There is no dispute that the plaintiff suffered an injury to his left shoulder, being an undisplaced fracture of the neck of the left humerus. He was taken to the Baulkham Hills Hospital where he underwent x-rays and a CT Scan, and then went home. He subsequently consulted his general practitioner, Dr Chowdhury, who prescribed medication and certified him as unfit for work for the next two weeks.
27. It is the defendant’s case that the plaintiff recovered from his shoulder fracture without any ongoing disabling symptoms, and apart from two weeks off work has either been fit for his pre-accident duties, or that any ongoing difficulties resulting from the injury have not and will not be productive of financial loss.
28. The plaintiff’s case is that he has suffered significant ongoing problems from his injured shoulder, and that he has a permanent disability. He claims damages for out-of-pocket expenses, future medical expenses, past economic loss, a reduction in his earning capacity, and for non-economic loss.
The medical evidence
29. The plaintiff was referred by his general practitioner to a specialist, Dr Nicholas Smith, who reviewed him regularly from early January 2007 through to June 2007. Treatment was conservative and the fractured left humeral neck of the plaintiff’s left shoulder appeared to unite in a satisfactory position, with only minimal angulation. He prescribed stretching and strengthening exercises. By February the doctor lifted restrictions to enable the plaintiff to drive a shunt truck in the work-yard, and by 26 March considered him fit for ordinary truck driving duties.
30. Dr Smith noted the plaintiff planned moving to Queensland, and referred him to a colleague in Brisbane. In his final report of 25 June 2007 Dr Smith expressed the following view:
“Mr Caldwell is doing a good job of rehabilitating his left shoulder. He is now 7 months post injury. He has regained 145º active elevation and external rotation of 35º. He is going to return to see me if he has further problems.”
31. In 2009 the plaintiff was referred by his solicitors for medico-legal assessment to Dr Max Ellis, a specialist surgeon. He was seen by this doctor on 3 February 2009 and more recently on 26 March 2010.
32. In his first report dated 9 February 2009, Dr Ellis noted that the plaintiff was experiencing continuing pain and restricted movements in the left shoulder. The left arm was weaker than it was and heavy carrying was causing pain extending from the shoulder to the arm. Work above shoulder level was difficult. The doctor noted that the plaintiff had moved to Queensland to avoid the cold, which aggravated his shoulder. He reviewed X-rays of the shoulder undertaken in February 2007 and noted progressive union at the fracture site, but that the shoulder joint was “wide consistent with persisting effusion.” He expressed a view which was suggestive of shoulder damage more extensive than a simple undisplaced fracture:
“…Mr Caldwell has suffered ligamentous injury to his left shoulder, a traumatic capsulitis and fracture, undisplaced, of the surgical neck of the left humerus… X-rays have revealed progressive union in good position… Pain in the shoulder persists and he is disadvantaged with heavy work… His lifestyle is degraded with loss of recreational activities and difficulties with activities of daily living in the maintenance of the home. Further treatment is not indicated… Grip strength (in the left arm) is less than expected for a man of 42 years of age…”
33. In his second report dated 31 March 2010, Dr Ellis noted continuing pain with restriction of movement, with intermittent numbness and paraethesiae in fingers of the left hand. He remained restricted from using his left arm to perform strenuous activity, or to perform work above shoulder level. There were no recent X-rays. On examination, the doctor found his left shoulder movements were restricted and the grip in his left hand remained weakened. His diagnosis remained unchanged, but in addition, Dr Ellis found evidence of radiculopathy affecting the left arm: He opined:
“Continued medical supervision and conservative treatment for pain relief will be required. Medications, consultations, intermittent physiotherapy are likely to cost $2,000 annually and the need is likely to continue… His working life expectancy has been reduced as a result of this injury and he is permanently unfit for physically demanding work requiring forceful and repetitive use of his left arm.”
34. The plaintiff was referred by the defendant’s solicitors for medico-legal assessment to Dr Roger Rowe, who saw him once, on 7 September 2009. In his report dated 24 September 2009, the doctor recorded complaints of shoulder aching, and an occasional “catch of pain” in the area with abduction combined with external rotation. He also noted a complaint of restricted movement, especially elevation.
35. On examination , Dr Rowe found no deformity or wasting, but there was diffuse non-specific tenderness around the shoulder. The “painful catch” was confirmed with external rotation, as well as discomfort at the limit of elevation and at the limit of external rotation. Dr Rowe found his grip was normal, and the soft tissues of the arm were normal. He reviewed the X-rays, and in the 2007 X-ray he noted some “disuse osteoporosis in the humeral tuberosity.” He regarded the plaintiff’s condition as stable with no likely change in the future. Periodic anti inflammatory or analgesic medication is reasonable and appropriate, and he recommended continuing exercises. He referred to the plaintiff’s range of restrictions in relation to work, and a lower ability for forceful use of the left arm, especially above shoulder level. The prognosis was for ongoing symptoms and restrictions in the future much the same as then existed. He concluded:
“His current presentation is reasonable and consistent with the pathology. He has been left with intermittent discomfort and restriction of movement.” (Page 4)
36. It may immediately be noted that Dr Rowe somewhat understated the position in this conclusion. The complaints recorded were somewhat more extensive, not being limited to intermittent discomfort, but including an ache on the top of the shoulder that was present every morning on awakening , aching when carrying his work bag in his left arm, aching when using a whipper snipper, and the fact that he has “learnt to live with his discomfort” and tends to use his right arm whenever he can. There is also aching on elevation including various exercises prescribed by the physiotherapist, as well as the catching pain on abduction and external; rotation.
37. The defendant relies on other material, including a pre-placement functional assessment report dated 28 February 2008. In my view the other material carries little probative value against the opinions of Dr Rowe and Dr Ellis.
38. Leaving aside the minimisation of the plaintiff’s symptoms by Dr Rowe, the medical evidence, taken as a whole is indicative of pathology resulting in moderate, perhaps not severe, ongoing symptomatology. The defendant submitted that the plaintiff’s complaints are the result of exaggeration, not supported by objective medical assessment. Yet no doctor suggests anything other than a completely genuine presentation by the plaintiff. My assessment of him is that he is in fact a man who has underplayed his problems and has indeed “learned to live” with and adjust to his continuing problems. He has at all times demonstrated a desire to get back to work and to do his best, which rather contraindicates the suggestion of malingering. I find, therefore, that his complaints of ongoing problems to doctors has been genuine, and not attended by exaggeration.
39. I am satisfied that the plaintiff has an ongoing permanent disability of a moderate nature that nevertheless impacts negatively on his capacity for endeavours of a particularly physical nature involving the use of his left shoulder and arm both in his private life and at work, manifested in restricted movement, pain and reduced strength. This disability has permanently reduced his capacity to earn.
40. Against this medical background and the findings I have made, I proceed to consider the individual heads of damage claimed.
Out-of-pocket expenses
41. The plaintiff claims out-of-pocket expenses for the past totalling $7,885.00, consisting of medical expenses paid by way of workers’ compensation ($6,587.00) plus the cost of medication ($1,300.00). The mathematics was agreed. As I understand the defendant’s submissions, the only dispute is as to the extent of the medication claimed. Having regard to my findings, the claim for medication is reasonable and I allow it.
42. I therefore find past out-of-pocket expenses proved in the sum of $7,885.00.
43. Turning to the future, the plaintiff claims future medical and associated expenses in an amount of $32,800.00. The basis for the claim is the opinion expressed by Dr Ellis as to the likely cost of medications, consultations, and intermittent physiotherapy at $2,000 annually and that the need is likely to continue. The defendant submitted that a buffer of $2,000.00 to $3,000.00 should suffice, but that would clearly be inadequate. The figure of $2,000.00 is not itemised, but an expenditure of $500 for medications, $750 for medical consultations, plus $750 for physiotherapy is to my mind reflective of the probability.
44. The claim, which is limited to 30 years (a multiplier of 822.0), is if anything understated. For these reasons I consider the claim is reasonable and I will allow it.
45. I find the plaintiff’s probable need for future medical and associated out-of-pocket expenses proved in the amount claimed.
Economic loss
46. The plaintiff claims economic loss for the past and a loss of earning capacity for the future.
47. The claim for past economic loss is $64,185.00 made up of $54,505.00 for lost wages, $6,000.00 for lost superannuation and $3,680.00 for tax on weekly workers compensation benefits (the Fox v Wood component). The claim is made on the basis of pre-accident nett average weekly earnings of $1,183.00, as is calculated in the following way:
2007: $1,183.00 - $1,120.00 = $63.00 x 52 = $ 3,276.00
Plus weekly workers compensation $18,401.00 $21,677.00
2008 $1,183.00 - $805.00 = $378.00 x 52 = $19,656.00
2009 $1,183.00 - $1,005.00 = $178.00 x 52 = $ 9,256.00
2010 $178.00 x 22 = $ 3,916.00
Total $54,505.00
The defendant conceded the loss claimed for 2007 and in respect of the 2008 calculation, counsel said, “That’s probably pretty right.” But the claims beyond that year were disputed. All the defendant would concede is a buffer award of maybe $15,000.00 to $20,000.00 for the future.
48. The defendant’s submission was that there has been no economic loss since 2008, firstly because the plaintiff was no longer incapacitated by reason of his injured shoulder, and secondly because he was going to leave New South Wales and go to Queensland anyway, and the decision to go to Queensland was made independently of his disability, so that any loss arising by reason of leaving his job in New South Wales is unrelated to his injury or consequential disability.
49. For the reasons I have already given, I am satisfied that by reason of his permanent disability the plaintiff continued to remain partially incapacitated after moving to Queensland, and will continue to suffer a reduced earning capacity in the future. The high probability is that this situation is permanent and will continue for the rest of his working life.
50. Turning to the second contention, it is true that the plaintiff and his family had aspirations of moving to Queensland that preceded his injury. But the evidence is that he was not prepared to make that move precipitately without securing appropriate alternative employment in that state. No doubt his injury increased that aspiration, having regard to the positive aspects of a warmer climate on his disability, but he is not the sort of person who would deliberately disadvantage his family by moving, if that was to impact negatively on his earnings. The defendant’s proposition is predicated on the assumption that his former employer, Linfox Australia Pty Ltd would have continued to employ him and remunerate him consistently at pre-accident rates for the rest of his working life irrespective of whether he was capable of performing the work required. There is no evidence of that and it is improbable. I am satisfied that his disability has caused financial loss notwithstanding his move.
51. Accordingly, I reject the contention that any loss of earnings, or diminution in the plaintiff’s earning capacity into the future is an outcome of his move to Queensland and is unrelated to his disability and physical restrictions.
52. The evidence, in particular the evidence of Mrs Caldwell, establishes that after they moved to Queensland the plaintiff’s level of remuneration deteriorated by reason of the reduced hours he has been capable of obtaining, a direct product of his disability. She had to go back to work to supplement his income, notwithstanding their two young children, and more recently the plaintiff had to switch jobs to work at nights, to raise his earnings. I am satisfied, however, that this is having a serious deleterious effect on their quality of life and the family unit, and that he will not reasonably be capable of sustaining the night work into the future.
53. I am satisfied, therefore, that the plaintiff not only continued to suffer a diminution in his earning capacity following his move to Queensland but that the diminution has been productive of financial loss. What needs further examination, however, is the actual loss that has been caused so far, and the extent to which that diminution will be productive of loss in the future.
54. So far as the disputed aspects of the claim for the past are concerned I am satisfied that the plaintiff’s average nett weekly earnings in 2009 were in the order of $1,005.00, but that in the last 6 months since he switched to night work, his earnings have been in excess of his pre-accident earnings, even allowing for some increase in any comparable figure due to the passage of time.
55. For those reasons I calculate the plaintiff’s past wage loss as follows:
2007: Conceded $21,677.00
2008: Conceded $19,656.00
2009: As claimed $ 9,256.00
2010: No loss Nil
Total $50,589.00
56. I therefore find past wage loss in an amount of $50,589.00. To this amount I add superannuation $5,565.00 (at 11%) and the agreed Fox v Wood component of $3,680.00, giving a total for past economic loss of $59,834.00.
57. Turning to the future, the plaintiff makes a claim of $367,182 for the reduction in his earning capacity. He calculates this by reference to a nett weekly loss of $600.00 for the remainder of his working life, less 15% for vicissitudes.
58. Damages for future economic loss are to be assessed having regard to s 13 of the Civil Liability Act 2002:
“Future economic loss - claimant’s prospects and adjustments
(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”
59. The defendant submitted that the plaintiff’s future earning capacity would have been adversely affected by a pre-existing back condition. The contention is not supported by any medical evidence. All that the evidence establishes is that the plaintiff has had some back problems in the past, but the impact on his ability to work as a truck driver has been minimal.
60. I am satisfied that the following assumptions about the plaintiff’s future earning capacity accord with his most likely future circumstances but for his injury: He would have worked till the age of 67 on day shift as a truck driver earning an average nett weekly income commensurate with his pre-accident earnings and hours worked for the next 20 years, but with the hours involved no doubt diminishing in his later years as his children grow up, and the family’s financial needs reduce.
61. The amount of the award of damages for future economic loss that would have been sustained by the plaintiff would in the ordinary course be adjusted by reference to a possibility that the events concerned might have occurred but for his injury:
s 13(2) of the Civil Liability Act 2002. There should, therefore, be a 15% reduction for vicissitudes.
62. My assessment of the plaintiff’s future is that he will abandon the night job at the end of these proceedings and revert to a day job in which his earnings will reduce due to his incapacity to work the longer hours he would have worked but for his injury. I am not satisfied that but for his injury, the plaintiff would be now be earning a weekly income that would be productive of a weekly nett loss of $600.00. Doing the best I can on the economic material tendered as to base rates, base hours, and overtime conditions in the trucking industry, and having regard to a probable wind back in overtime hours in later life, I find that his nett weekly loss over the remainder of his working life will average $275.00.
63. I calculate the present lump sum equivalent of that loss (at 5%) as follows:
$275.00 x 23 years (721.2) = $198,330.00 less 15% for vicissitudes = $168,580.50
64. An allowance must be made for superannuation:
$168,580.50 + 11% ($18,543.85) = $187,124.35.
I allow a total round figure of $187,125.00 to compensate the plaintiff for future economic loss.
Non-economic loss
65. The final head of damages to be considered and assessed is non-economic loss. Counsel for the plaintiff submitted that the severity of the non-economic loss as a proportion of a most extreme case should be assessed at 35%.
66. The defendant submitted that the appropriate assessment is in the range of 20% to 25% of a most extreme case.
67. A permanent shoulder injury of this kind that results in significant pain on a daily basis, aggravated by particular activities, with the prospect of a lifetime of discomfort and restricted movement, is in my view a serious disability. The plaintiff does obtain relief from medication, and I take that into account. Nevertheless this man is restricted in various social and sporting pursuits - he can no longer swim overarm, an activity he enjoyed before the accident, nor can he play golf any more. He cannot engage in lifting or swinging his children. Emotionally he is adversely affected, and his wife has noted a marked change in his personality. She has also observed that he has developed a drooped posture. There has been a significant adverse impact on his family life.
68. I assess the severity of the non-economic loss at 30% of a most extreme case. That currently produces a statutory amount for non-economic loss of $109,000.00: s 16(3) of the Civil Liability Act 2002.
Total damages
69. The calculations as to the damages are set out in the table below, which tabulates the total amounts for each individual head of damages as I have found them, in summary form, on a rounded up basis, together with the total damages assessed.
Heads of Damage Past out-of-pocket expenses Future medical expenses Past economic loss Future economic loss Non-economic loss Total damages
Costs
70. Orders for costs are to be made in accordance with r 42.1 and r 42.2 of the UCPR, unless some other order or orders are appropriate.
Disposition
71. There was no claim for interest.
72. I enter a verdict for the plaintiff against the defendant for $396,644.00, and direct the entry of judgment for that amount.
73. The defendant is to pay the plaintiff’s costs.
74. I give leave to the parties to apply for some other costs order provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought.
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