Coulson v Containers Packaging (Food Can Group Bathurst)

[2005] NSWSC 553

CITATION:	Coulson v Containers Packaging (Food Can Group Bathurst) [2005] NSWSC 553
HEARING DATE(S):	29/03/05, 30/03/305, 31/03/05
JUDGMENT DATE :	9 June 2005
JUDGMENT OF:	Hislop J
DECISION:	Verdict for the plaintiff against the defendant in the sum of $239,156.57; Judgment for the plaintiff against the defendant in the sum of $124,164.49; The defendant is to pay the plaintiff's costs.

CATCHWORDS:	Negligence - Assessment of damages.
LEGISLATION CITED:	Workers Compensation Act 1987 - Part 5 Division 3
CASES CITED:	Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 Medlin v SGIC (1995) 182 CLR 1
PARTIES:	Plaintiff - Mary Therese Coulson Defendant - Containers Packaging (Food Can Group Bathurst) being a member of Amcor Packaging (Australia) Pty Limited
FILE NUMBER(S):	SC 20721/01
COUNSEL:	Plaintiff - Mr D W Elliott Defendant - Mr P O'Connor
SOLICITORS:	Plaintiff - G. H Healey & Co - Bondi Defendant - A O Ellison & Co - Sydney

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

9 June 2005

20721/01 Mary Therese Coulson v Containers Packaging (Food Can Group Bathurst) being a member of Amcor Packaging (Australia) Pty Limited

JUDGMENT

Introduction

1 This is a claim by the plaintiff to recover damages for personal injuries sustained in the course of her employment with the defendant. Liability is admitted and the matter is before me for assessment of damages. The assessment is subject to the limitations imposed by the Workers Compensation Act 1987 (“the Act”) Part 5 Division 3 as at the time of injury.

Factual background

2 The plaintiff is a single woman born on 17 January 1967. She is right hand dominant.

3 The plaintiff completed her schooling at Concord High School where she obtained the School Certificate. She then commenced employment with a newsagent for whom she worked for about five years, during the course of which she was promoted to manager of two Darrell Lea shops owned by the newsagent. She said she was employed by another newsagency for a short period and also in a bank where she was promoted from Teller 8 to Teller 1 within a very short space of time, but left because she was not comfortable with the added responsibilities entailed by being Teller 1.

4 The plaintiff then went to the country and, after a short time, settled in Bathurst. The plaintiff took seasonal employment with Edgells in Bathurst as the money was quite good. After a time she was appointed a full time employee and received promotions, ultimately being in charge of a shift of some 7 or 8 people. The job involved weekend work. In 1995, along with other persons, she was made redundant by Edgells. She then obtained employment with the defendant in October 1995. As at the time of injury she was employed by the defendant as a process worker/quality controller on a can making line. She had first aid qualifications and was the first aid officer on her shift.

5 At about 7am on Friday 19 March 1999, the plaintiff was adjusting a palletiser machine. In order to make the adjustment, the plaintiff reached into the machine which had been turned off. Regrettably, another employee activated the machine, causing the plaintiff’s right upper arm to be caught in the machine. The emergency stop button was activated and the arm released within a matter of seconds. There were no fractures or lacerations, but the upper arm was painful and significant bruising developed.

6 The plaintiff ran cold water on the injury and then continued with her work until finishing time at noon. That weekend, she obtained Hirudoid cream from the chemist which she used in addition to taking some Nurofen. She returned to work on the following Monday and thereafter continued to perform her full normal duties without any loss of time until she was made redundant on 28 May 1999.

7 The plaintiff was a patient of the Busby Medical Practice in Bathurst. The records of the practice reveal that the plaintiff’s first consultation following the injury was on 30 March 1999. A note of the consultation in her medical records reads:

Containers Packaging 19/3/99 – right elbow caught in can clamp (hydraulic). On examination: bruise fading 10-15 centimetres around right dominant elbow. Fibrous reaction in haematoma near medial epicondyle. (2” by 1“) Non-tender. No treatment.

8 The records of the practice contain the following earlier notations in respect of the plaintiff’s right upper limb:

15/5/96 - pain right upper arm leading to aching, worse at night. also occurred 5 years ago. Responds to NSAIDS (gets allergic)…On examination right shoulder OK right elbow OK. Treatment: Tilcotil 10mg daily plus x-ray right humerus – no abnormality detected.
12/8/96 – Right long head biceps pain, generalising to all biceps. Tilcotil settled within one dose but recurrent. For physio.
October 1997 – Tender right upper arm. Process worker – was pulling box dividers – weight about 15 kg, from above shoulder height yesterday – worked harder than other days. On examination: right upper arm slightly swollen compared with left, more than 1 cm. Tender biceps/triceps. Elbow OK shoulder OK. Impression: biceps/triceps muscular overused. Try Voltaren 50mg three times daily – keen to return to work.

9 On 16 April 1999, the plaintiff signed a Workers Compensation claim form. That document described the circumstance of the accident as, “Whilst changing over the packer, Mary caught her arm in the clamp and well when the table was brought forward.” It described the injury as, “severe bruising”, the part injured as “right elbow” and stated she had suffered no similar injury or condition previously and the part was normal before the accident.

10 The plaintiff stated in her evidence that the bruising cleared approximately six weeks after the injury.

11 On 28 May 1999 the plaintiff, along with other employees, was made redundant by the defendant. The factory stayed open for three months thereafter and the plaintiff was offered the opportunity to work during that time. She however declined as her arm was very sore and she was very angry with the defendant because she and other employees had worked extremely hard to try to ensure their jobs continued.

12 The plaintiff attended the Busby Medical Practice on 11 June 1999. This was the first attendance since 30 March 1999. The note of the consultation (so far as it can be deciphered) reads:

11/6/99 – complaining of paresthesia to right thumb, radial nerve distribution, occurred for 5 days. Recent elbow injury. Nil pain, associated weakness. Currently redundant. On examination: strength appears normal. Radial nerve distribution of pins and needles. Radial pulse normal, capillary return less than 2 seconds. Impression: ? nerve palsy. For Feldene 10mg daily. Review in 1 week for ? nerve conduction studies, x-ray of elbow.

13 When she was reviewed at the practice on 16 June 1999, her neurological symptoms had increased. She was referred to Dr Hammond, a consultant neurologist, who, on 20 June 1999, conducted an EMG and nerve conduction study. This revealed electro-physiological evidence of a neuropraxic lesion of the right radial nerve in the region of the spiral groove of the humerus. Dr Hammond concluded the prognosis for recovery was good.

14 On 3 August 1999, an MRI of the right upper arm was reported to show:

Soft tissue haematoma superficial and deep to the brachialis muscle. There is some haematoma seen surrounding the radial nerve in the spiral grooves and there is slightly increased signal intensity and thickening of the nerve, suggestive of a neuropraxia. No intra-neural haematoma or transection of the nerve is seen.

15 The plaintiff underwent physiotherapy with initial improvement and then deterioration. She was referred to the orthopaedic specialist Dr Hargraves. He obtained a history (report 14 July 1999) of the crush injury, that the plaintiff was sore but able to keep working thereafter until made redundant on 28 May 1999 and that:

In mid June, she developed numbness in her right hand, predominantly in the radial sensory area, though possibly also on the pulps of her thumb and index fingers, and also felt that the hand and arm were weak. She said that she was unable to click her fingers, or use the arm for various domestic activities.
She had been handling and nursing children on the weekend prior to the onset of this weakness, though I find it a little difficult to relate these events.

16 The plaintiff improved symptomatically and sought employment in factory work. Follow up electrophysiological tests showed the lesion was persisting. It was decided to perform an exploration and release of the right radial nerve.

17 The operation was performed by Dr Hargraves on 17 February 2000. He observed on operation that there was some scar tissue constricting the radial nerve as it exited the spiral groove. The plaintiff reported improved comfort and function in her right arm following the operation.

18 Thereafter the plaintiff commenced to do some voluntary work at Glenray Industries Ltd ultimately obtaining paid employment there in October 2000 as a social educator working on weekends for 14 hours. This involved working with persons suffering from Downs syndrome. After a time, her duties were upgraded and she commenced to work a further 15 hours per week. Over the last two years she has worked 2 days during the week in the workshop at Glenray and 2 days at the group homes. The plaintiff stated that she had the physical capacity to do the work that she was doing, and that she hoped to continue to do it in the future.

19 I accept the above facts as they were either common ground or not disputed.

The issues

20 There are essentially three issues requiring determination, namely:

a) Was the radial nerve lesion caused or materially contributed to by the injury at work on 19 March 1999?

b) What is the nature and extent of any ongoing disability attributable to the work injury?

c) The quantification of damages.

These issues are considered separately hereunder.

Causation

21 The defendant submitted, in essence, that the plaintiff’s injury consisted only of bruising to her right upper arm. The injury was not significant, and was not such as to require medical treatment. It did not prevent the plaintiff continuing to carry out her full work duties without loss of time until she was made redundant. By 19 March 1999, the bruise was fading and the plaintiff required no treatment when examined by her general practitioner on that day. The bruise had cleared completely within 6 weeks. The onset of neurological symptoms occurred almost 3 months after the work incident, according to histories given by the plaintiff, either when she had been driving to and/or from Cowra on or about 28 May 1999 or, more likely, after a weekend of handling or nursing children in early June 1999. The court should not accept that there was any link between the subject injury and the radial nerve problem. It was a matter for the plaintiff to establish the causative link and she had not done so. There were other possible causes such as the drive to Cowra, the weekend with the children or the previous problems with the right arm, referred to in the Busby Medical Practice notes, which bore a striking resemblance to the present complaints.

22 The plaintiff submitted that the radial nerve lesion had been caused by the work incident. Such incident had caused a haematoma, the existence of which was noted at the medical examination on 30 March 1999. The MRI scan on 3 August 1999 showed “soft tissue haematoma superficial and deep to the brachialis muscle and some haematoma surrounding the radial nerve in the spiral groove”. There was no history of any other event to explain the haematoma which was consistent with the work injury. The haematoma, as it resolved, caused the development of scar tissue which constricted the radial nerve and which was operated upon by Dr Hargraves.

23 The causative link was accepted by Dr McKessar, who, in a report dated 28 January 2003, recorded a history of the original injury. He noted the development, fairly suddenly, in mid June of numbness and tingling in the dorsum of the right hand accompanied by forearm weakness. There was a very definite inability to extend her wrist and use her fingers properly, which was particularly apparent after driving one weekend. The doctor concluded:

Although this patient seemed to develop a delayed radial nerve palsy, I believe it very clearly did relate to this crush injury in her mid and lower humerus, stated to have occurred at work on 19/3/1999.
MRI findings were those of some haematoma which went on, I believe to scar tissue development; the patient has had a neurolysis and has been left with, I believe, some aching discomfort in the upper arm.

Dr McKessar concluded that the weekend with the children would not have caused the injury.

24 I accept the submissions of the plaintiff as to causation. Those submissions are consistent with the objective medical evidence and the history of events. Furthermore, all doctors who commented upon the causation issue concluded that there was a link between the incident and the radial nerve lesion, albeit the histories recorded by most doctors were not complete or accurate in all respects. The defendant adduced no evidence rebutting the existence of the link, though it had had a copy of the Busby Medical Practice records in its possession from at least July 2003.

25 I find that the injury to the radial nerve was caused by the work incident on 19 March 1999.

What is the nature and extent of any ongoing disabilities attributable to the work injury?

26 Dr Barold was qualified by the plaintiff’s solicitors. He gave evidence that he saw the plaintiff once, on 24 February 2005. He elicited a long list of complaints from her, apparently principally as a result of suggestions made by him to the plaintiff in questioning. The doctor adopted what, to my mind, was an extravagant position as to the plaintiff’s needs for assistance and likely future out of pocket expenses, his assessment being far beyond that of any other doctor. He also managed to find 15% permanent loss of sexual organs, notwithstanding no such claim was made. I do not accept his evidence.

27 Dr Mahony was also qualified by the plaintiff’s solicitors. He saw the plaintiff once. He opined (report 24 February 2005) the plaintiff would most likely have to cease work at approximately 50 years of age. He gave no reasons for this conclusion and none are apparent. This opinion stands alone and is contrary to the evidence of all other doctors who expressed an opinion in this regard. I reject it. I also reject his opinion that the plaintiff requires 4 hours domestic assistance per week which requirement will increase with the passage of time.

28 The plaintiff lives in a flat in Bathurst. She has a long standing relationship with a Mr Saunders though they live apart. The plaintiff and Mr Saunders gave evidence as to her ongoing problems. It seemed to me that they were focusing upon the plaintiff’s complaints in evidence to a degree which led to some distortion as to the extent of the problems. For example, the plaintiff has a scar on the right upper arm as a result of the surgery. It is 14 centimetres in length and 1-1.5 centimetres in width. There are stitch marks along its length. The scar is not reddened (c/f the earlier photographs – exhibit D) and appeared on inspection by me to be noticeable but not unsightly. The plaintiff told Dr Gertler (report 5 December 2002) she was not particularly self conscious about the scar on her arm, though in her evidence at the hearing, she said she always covered up the scar because of embarrassment and that it “looked like a chaff bag that had been sewn up”.

29 In a report dated 25 February 2005, Dr Rea, a specialist qualified on behalf of the plaintiff, recorded the plaintiff’s current situation as follows:

The patient states the position and state of her right arm is very similar that of when I last saw her just over two (2) years ago. She still does not have the strength in her right hand and arm that she had previously, prior to the accident in 1999. She is not permanently pain free in the right arm. She states it is not a constant pain, but sometimes radiating discomfort in the upper arm especially if it is knocked. She is able to handle a car without any problems, however when holding the steering wheel she can experience discomfort at the site. She states that she has developed ways to overcome any impediment she may have had to the full use of her right arm and is able to attend to her own hygiene, dress and do her hair. She is able to carry her shopping bags. However even at night she can notice discomfort in her right upper arm, even numbness, and she has to shake it in order to get comfort again before she returns to sleep…she confirmed that notwithstanding this she is able to care for herself and her flat, keeping it tidy and in order…she states she has continued working with handicapped people at Glenray Institution in Bathurst. She is able to handle this work all right but sometimes the patients can get somewhat forcible and rough but she handles this as best she can.

I accept the history recorded by Dr Rea as indicative of the plaintiff’s current situation.

30 Dr McKessar, who was qualified on behalf of the plaintiff, concluded in his report dated 2 March 2005 that:

Although there may have been some minor motor changes in the radial nerve, demonstrated on EMG appreciation, clinically these are not evident, but I do believe the aching discomfort, sometimes amounting to pain in her upper arm, painful area just lateral to the wound, represents the end point of the injury and these symptoms are likely to persist and I do not believe any secondary procedure would serve any worthwhile purpose.

I accept that evidence.

31 The plaintiff has had no psychiatric or psychological treatment. Her solicitors referred her to the psychiatrist Dr Gertler who, in his most recent report dated 1 March 2005, concluded:

Ms Coulson continues to suffer from chronic mild anxiety associated primarily with a fear of aggravating the right arm symptoms, whether at home, at work or when pursuing leisure activities.
The anxiety which she has in relation to her work situation has lessened and I would expect this lessening to continue as she becomes more confident in her ability to cope with difficult clients.
Ms Coulson has not had any psychiatric or psychological treatment for her chronic mild anxiety state, and this is in my opinion, not indicated at the present time nor is it likely to be required in the future.
Nevertheless the prognosis for her mild anxiety state remains guarded. It is likely to be present for the foreseeable future, despite the passage of time and effort which she has been making to minimise it.

I accept this evidence.

32 I also accept the opinions of Drs Carr (report 15 March 2005 page 4) and Rea (report 25 February 2005 page 3) that the plaintiff is not fit for repetitive work as a machine operator or process line worker and that she does not require assistance with household activities or in her domestic state.

33 I accept the plaintiff, in consequence of the work injury, no longer engages in the pastime of caring for racehorses, a pastime that had given her considerable pleasure pre-injury. She has continued her involvement in the racing industry by joining the committee of the Bathurst Turf Club.

Quantification

Non-economic loss

34 The statutory maximum for non-economic loss under s 151G of the Act at the date of injury was $232,400. Section 151G requires that the assessment of non-economic loss be proportional to “a most extreme case”. Having regard to the matters previously discussed and the need for proportionality, I assess the proportion of a most extreme case at 25%, i.e. $58,100.

Past out of pocket expenses

35 a) It was agreed the defendant has paid $21,104.16 for past out of pocket expenses.

b) There is a claim for $750 for past pharmaceutical expenses for Nurofen. The plaintiff informed Dr Bosanquet (report 20 August 1999) she occasionally required Nurofen. She gave evidence that her current usage of Nurofen was 5 to 6 tablets per week, that she bought them in packets of 48 tablets and that they cost $9.95. There was no other evidence of past usage or cost. I consider it reasonable to infer the plaintiff did require Nurofen for relief of arm pain during the relevant period. I allow the claim at an average of $50 per annum i.e. $300.

I allow the total claim for past out of pocket expenses at $21,404.16.

Future out of pocket expenses

General practitioner/specialist physician/ orthopaedic surgeon/neurosurgeon

36 A claim is made for four general practitioner consultations a year at $50 per consultation and one consultation with a specialist each year at $150 per consultation. These claims are based upon the evidence of Dr Barold. The plaintiff’s evidence is that she consults a general practitioner when she needs a medical certificate or is sick but he does nothing in respect of her arm, and that she has not consulted any doctor in relation the arm since 2002, save for medico-legal purposes. There is the possibility that there may be an occasional need to consult a doctor in respect of the arm in the future. I allow one visit per annum to a general practitioner which capitalises at $914.

Plastic and reconstructive surgeon

37 A claim is made for a trial excision of one third of the scar with a follow up excision of two thirds of the scar if the trial is successful. The surgeon’s and hospital fees for the trial excision is $2,500. The plaintiff has said that she would, if money was available, have the operation. However the only expert evidence is that of Dr Rea who considers it unlikely the operation would be successful, hence the initial trial excision. I doubt the plaintiff will have the procedure, or that, if she does, it will go beyond the trial excision stage. There is no evidence of the cost of a second operation but I infer it would be about the same or a little more than the cost of the trial procedure. I allow $1,000 for the possibility the plaintiff may undergo these procedures.

Psychiatric/ Psychologist counselling

38 A claim is made for counselling on a monthly basis for 2 years at $160 per session and twice annually thereafter for the remainder of the plaintiff’s life at $160 per session. The plaintiff has said that she would get psychiatric treatment if money was available, as she is not the same person as she was before. The plaintiff has not had any such treatment since the injury. Dr Gertler’s evidence is that such treatment is not required. I accept his evidence in this regard and reject the claim.

Scans

39 This is another claim based upon Dr Barold’s evidence. It is not supported by other evidence. The claim is rejected.

Pharmaceutical

40 A claim is made on the basis of Dr Barold’s suggested costing of $600 per annum. The evidence is that the plaintiff only uses Nurofen at the rate of 5-6 tablets per week, or 6 packets per year at $9.95 per packet. It is probable the claim, even at that, is somewhat exaggerated as the plaintiff had told Dr Carr (report 15 March 2005) that she might use 4-5 tablets per week. I allow the claim at $52 per annum i.e. $950.

Waxing

41 There was a claim for waxing under the arms at $20 per three weeks. The issue here as to what out of pocket expenses are recoverable is not what are the ideal requirements but what are the reasonable requirements of the plaintiff. What is reasonably required is a matter for the jury or for the judge if sitting alone - Arthur Robinson (Grafton) Pty Limited v Carter (1968) 122 CLR 649 at 661. I do not accept this is a reasonable requirement. I see no reason why the plaintiff cannot wax her own armpits or use a cream. I reject the claim.

42 The total amount allowed for future out of pocket expenses is $2,864.

Past economic loss

43 It was agreed between the parties that the plaintiff’s earnings as at the date of injury were $500 net per week, that comparable earnings as at the date of hearing were $620 per week net, and that the average earnings from the date of injury to the date of hearing was $560 net per week. The plaintiff claimed damages for past economic loss calculated by assessing the past loss ($560 net per week from 1 July 1999 to date) and deducting therefrom the plaintiff’s actual earnings at Glenray Industries Ltd.

44 The defendant submitted that the plaintiff had been certified totally unfit for work only for the period 8 February 2000 to 1 May 2000, and that she had been fit to continue in her pre-injury employment until the factory closed on 28 August 1999 and chose not to do so out of a feeling of grievance. The plaintiff gave evidence she was seeking work during the period leading up to the operation and had a number of job offers which she was unable to take due to the condition of her arm.

45 I accept that the plaintiff was fit for some work at all times from 28 May 1999 to October 2000 save for the period 8 February 2000 to 1 May 2000. However it is apparent from the medical reports that significant symptoms related to the radial nerve injury occurred shortly after she was made redundant. I accept Dr Hargraves’ opinion (report 14 July 1999) that the dysfunction in the plaintiff’s right arm would make it difficult to return to manual work reliably. I accept the evidence of the plaintiff that she sought work during the period leading up to the operation but was unable to take what was offered due to the condition of her arm. I also accept that the condition of the plaintiff’s right arm was a significant reason in her not accepting the offer of a further three months employment with the defendant following her being made redundant.

46 Presumably there would have been a period after the plaintiff was made redundant in which she would have been seeking employment. Accordingly, I would commence the calculation of damages for past economic loss on 1 July 1999 as submitted by the plaintiff. I would also allow the plaintiff from 1 May 2000 when declared fit for work to October 2000 in which to obtain suitable employment.

47 I therefore calculate past wage loss from 1 July 1999 to 31 March 2005 at $66,645 as per the plaintiff’s schedule to which I add a further $210 being the loss from 1 April 2005 to 9 June 2005 calculated at $21 per week resulting in a total loss of wages to date of $66,855.

Past superannuation loss

48 It was agreed by the parties that the allowance for past superannuation loss should be 9% of the net wage loss. Accordingly I allow $6,016 under this head being 9% of $66,855.

Interest on past economic loss

49 A claim for interest on past economic loss is made pursuant to s 151M of the Act. However the Workers Compensation weekly payments which have been made to the plaintiff exceed the allowance for past loss of wages. Accordingly, no allowance for interest is made.

Impairment of future earning capacity

50 It was agreed by the parties that the comparable earnings at the present time are $620 per week. It was also established the plaintiff’s current average weekly net earnings are just on $599 per week, thus creating a current loss of $21 net per week.

51 In order to recover damages for loss of future earning capacity, a plaintiff must establish that his or her earning capacity has in fact been diminished by reason of the negligently caused injury and the diminution of earning capacity is or may be productive of financial loss – Medlin v SGIC (1995) 182 CLR 1.

52 In my opinion, the plaintiff has a limitation upon her capacity to engage in employment which involves heavy or repetitive work but she is well suited for retail or care work such as she is doing, and many other forms of employment, particularly as she obviously has some degree of organisational skills.

53 The plaintiff’s current loss of earnings is $21 per week which when capitalised at 5% to age 65 less 15% for vicissitudes is $13,977. There is the possibility the plaintiff may lose her present employment for whatever reason. If that should occur, she may experience some delay in obtaining new employment by reason of the diminution in the labour market reasonably open to her. However, in my opinion her abilities are such that she would find suitable employment at a comparable salary within a relatively short period. This is a case where it is appropriate to compensate the impairment of future earning capacity by way of a cushion. The appropriate cushion in my opinion is $65,000 which sum includes an allowance for loss of future superannuation.

Griffiths v Kerkemeyer

54 The plaintiff gave evidence her capacity to perform domestic duties has continued at about the same level since she commenced employment with Glenray Industries Pty Limited. She stated she required one, two, three or four hours assistance per week.

55 The claim made on her behalf from 10 October 2000 is for 8 hours assistance per week to date and continuing. The claim is based on Dr Barold’s opinion as to the plaintiff’s needs. However, as I have previously indicated, I reject the opinion of Dr Barold and Dr Mahony preferring the opinion of Drs Carr and Rea that the plaintiff does not require assistance with household activities or in her domestic state. Accordingly I make no allowance for Griffiths v Kerkemeyer compensation from 10 October 2000 to date and continuing.

56 The plaintiff further claims Griffiths v Kerkemeyer compensation at 20 hours per week from 11 June 1999 to 10 October 2000 at $16.54 per hour. The plaintiff’s evidence was that she had assistance particularly from Mr Saunders and that Mr Saunders’ mother on occasions would send her meals. She also said that she had stayed with an aunt for a month following the operation. The claim included 15 hours per week in respect of the care of racehorses which claim was withdrawn. I allow the plaintiff an average of 5 hours assistance per week from 11 June 1999 to 10 October 2000 save for the period of four weeks which she spent with an aunt during her convalescence. I allow 20 hours per week for that period.

57 Thus I allow Griffiths v Kerkemeyer compensation at $6,698 comprising 5 hours per week at $16.54 per hour for 65 weeks and 4 weeks at $16.54 per hour for 20 hours per week.

Fox v Woods

58 The Fox v Woods figure is agreed at $12,219.41.

Conclusion

59 I summarise the assessment of damages as follows:

Non economic loss: $ 58,100.00
Past out of pocket expenses: $ 21,404.16

Future out of pocket expenses: $ 2,864.00

Past economic loss: $ 66,855.00
Past superannuation loss: $ 6,016.00
Impairment of future earning capacity: $ 65,000.00
Griffiths v Kerkemeyer: $ 6,698.00
Fox v Woods $ 12,219.41
Gross Total: $ 239,156.57
Less agreed Workers Compensation payments:
$ 114,992.08
NET TOTAL: $ 124,164.49

Orders

60 The orders of the Court are:

(1) Verdict for the plaintiff against the defendant in the sum of $239,156.57.

(2) Judgment for the plaintiff against the defendant in the sum of $124,164.49.

(3) The defendant is to pay the plaintiff’s costs.

**********