Curry v ACI Operations Pty Limited
[2001] NSWSC 605
•18 July 2001
CITATION: Curry v ACI Operations Pty Limited [2001] NSWSC 605 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20516/00 HEARING DATE(S): 2 July 2001 - 4 July 2001 inclusive JUDGMENT DATE:
18 July 2001PARTIES :
Arthur Iaseko Curry v ACI Operations Pty LimitedJUDGMENT OF: Michael Grove J at 1
COUNSEL : J. Glissan QC with A. Reoch (Plaintiff)
J. Sharpe (Defendant)SOLICITORS: Teakle Ormsby Conn (Plaintiff)
McCulloch & Buggy (Defendant)CATCHWORDS: NEGLIGENCE - EMPLOYER/EMPLOYEE - CONTRIBUTORY NEGLIGENCE - DAMAGES ASSESSED LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: Barisic v Devonport (1978) 2 NSWLR 111
Bus v Sydney County Council (1989) 167 CLR 78
Carlyle v Commissioner for Railways 1954 54 SR (NSW) 238
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Fox v Wood (1981) 148 CLR 438
McLean v Tedman (1984) 155 CLR 306
Pennington v Norris (1956) 96 CLR 10
Sungravure Pty Limited v Meani (1964) 110 CLR 24DECISION: Judgment for Plaintiff
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMICHAEL GROVE J
Wednesday 18 July 2001
20516/00 - ARTHUR IASEKO CURRY v ACI OPERATIONS PTY LIMITED
JUDGMENT
1 HIS HONOUR : The plaintiff was injured whilst in the employ of the defendant at its factory at about 10 pm on 6 June 1997. Contrary to a submission on behalf of the defendant that the facts of the occurrence are speculative I am abundantly satisfied that the forklift being driven by the plaintiff struck an overhead beam with its partly raised mast causing the vehicle to overturn thereby crushing and injuring the plaintiff. The beam was part of the travel track of an obsolete and unused crane and, in any event, the beam had no functional purpose within the factory. The risk of a raised forklift mast striking the beam was reasonably foreseeable and was avoidable by removal of the beam or the provision of forklifts with lower mast extension capacity, both of which were achieved after the plaintiff’s accident. I reject the suggestions that I should find that the accident was caused by the plaintiff driving too fast or cornering incompetently or otherwise, except in respect of raising the mast, mishandling the vehicle. These submissions by the defendant were apparently based upon notations from unknown sources in hospital and ambulance records upon which I am unprepared to rely.
2 The particular operations in which the plaintiff was employed concerned the production of extruded plastic containers. The extrusion machines operated continuously and required feed of raw material from time to time. Bags of pelletised fresh material weighing one tonne each would be collected by the forklift. They were lifted by threading the tines through loops on the upper aspect of the bags. A full bag was transported to the machine and located in a frame above a hopper into which the contents were dropped by unlacing a drawstring holding the bottom of the bag closed. Offcuts from the operation (referred to as trim) were recovered for reprocessing and stored in half tonne bags. These were collected and the contents fed into the machine in a similar fashion to the feed from the larger bags. I am satisfied that at the time of the accident the plaintiff was probably heading to the trim bag storage point to collect and deliver the content of such a bag to an extrusion machine for which he was currently responsible.
3 The factory floor was marked by yellow lines. Ultimately the considerable attention paid to these (by some retained experts in particular) was conceded to be irrelevant in the light of the evidence of Mr Groncholsky the plant manager who confirmed that these were specifically to mark out pedestrian refuges rather than to delineate forklift routes. He conceded that a forklift would necessarily have to cross the lines from time to time, obviously at least to collect a load and, most importantly, he said that no matter which route the plaintiff had selected on the occasion in question, he had to pass under the purposeless beam.
4 I gather that the actual extrusion process was substantially automatic and the plaintiff’s task was to ensure that it did not shut down for lack of raw material and in between collections his job was essentially to be an available observer. The overtime records show that the plaintiff worked quite extraordinarily long hours and sequences of days. He regular shift hours were from 3 pm to 11 pm but he rarely worked only for that period. Just before setting out on the fateful journey he was noticed to have been apparently dozing. This ought to have been in the range of anticipation of the defendant having regard to its imputed knowledge deriving from possession of roster (and wage) records in respect of hours worked.
5 I am satisfied that it is probable that the plaintiff lapsed in concentration and drove the forklift with elevated masts before he had cleared the hazard presented by the obsolete beam. I am satisfied that the defendant in leaving that hazardous situation unrectified failed to provide a workplace which was reasonably safe and in the whole of the circumstances exposed the plaintiff to risk of injury which was unnecessary.
6 The submissions on behalf of the defendant concerning primary liability focussed upon the contention that the happening was a matter of speculation but, if that submission was not accepted, I did not understand it to be otherwise contended that negligence was not established. I find that the plaintiff has proved negligence to the necessary standard.
7 Contributory negligence was alleged. Counsel for the defendant submitted that the apportionment of fault, if I came to this issue, should see the plaintiff bearing at least 50 percent of responsibility.
8 I reject the submission that the plaintiff was travelling too fast. To borrow expression from the defendant’s primary submission, that is pure speculation. However, I accept that proper and safe practice would be to keep the tines (and hence the mast extension) lowered when the forklift was travelling without a load (as it was at the time) and that the plaintiff ought to have been aware of this requirement of prudence.
10 In Carlyle v Commissioner for Railways 1954 54 SR (NSW) 238 Maxwell J wrote that:9 Senior counsel for the plaintiff vigorously contested the submission that the defendant had proved contributory negligence. He accepted that the accident had been caused by the collision between the mast of the forklift and the beam and that it was action by the plaintiff which allowed the mast to be at an inappropriate point of travel. However he contended that what the plaintiff had done was no more than become momentarily inattentive at the time when, for reasons which I have adumbrated, he was somewhat fatigued. Counsel referred to some of the ample authority regarding the situation of a workman like the plaintiff.
11 The principles stated have continued to operate in the context of apportionment legislation. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Gibbs J observed that
“………… a mistake made by a workman will not usually be a good defence to an action if it was due to inadvertence, hurry, absorption in work or fatigue”
This was written at a time when contributory negligence operated as a complete defence to a claim for damages.
“………… in deciding whether (a workman) was guilty of contributory negligence, one may consider, as part of all the circumstances, the man’s preoccupation with the matter in hand, with a view to deciding ‘whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man’.”
The latter citation was taken from Sungravure Pty Limited v Meani (1964) 110 CLR 24 per Windeyer J.
12 In Bus v Sydney County Council (1989) 167 CLR 78 the High Court discussed the relevance of “momentary inadvertence” and in McLean v Tedman (1984) 155 CLR 306 referred to “mere inattention or inadvertence” and “whether it amounts to (contributory) negligence”.
13 These references were directed, inter alia, to the final expression of Dr Shafaghi an expert retained by the defendant that there was an “inadvertent laps(e) of concentration” on the part of the plaintiff although, of course, this was said in relation to his opinion that this was a substantial contribution to the cause of accident. Counsel for the plaintiff relied upon the discrete remark.
14 I have found that the forklift was overturned when the plaintiff probably raised the tines and hence the mast before he was clear of the obstruction and the consequent danger presented by the obsolete beam. Raising the tines necessarily involved positive control and the accident occurred when the forklift was necessarily in travel mode heading to the pickup point for feed material.
15 I do not classify such a deliberate act as “mere inadvertence” and it does not matter whether it occurred at the commencement of the trip or during the trip. I have not overlooked the possibility that the tines were in the raised position when the plaintiff boarded the vehicle but ordinary prudence and the rules for traverse of forklifts would have dictated lowering them before setting off. I mention this for completeness. There is no evidence that the forklift was stationary with the tines and mast raised. Mr Cutelli who would have been in a position to notice this as he saw the plaintiff depart was not asked whether he made such an observation. It is not possible to exactly determine the circumstances but I would not categorize any one of the possibilities just canvassed (raising the tines before or during the trip, or boarding the vehicle with them already in the raised position and driving off) as mere inadvertence and I am satisfied therefore that the defendant has proved that the plaintiff failed to take reasonable care for his own safety in the circumstances.
16 It is necessary to apportion fault. Comparative culpability needs to be assessed: Pennington v Norris (1956) 96 CLR 10 and in so doing causative potency is relevant: cf Barisic v Devonport (1978) 2 NSWLR 111. I would describe the plaintiff’s fault as determined upon an act of poor judgment on the single occasion. On the other hand, the defendant had a continuing duty in relation to the premises and the operations conducted therein. It ought to have perceived (as it provided the implements for use in the operations) that they had a capacity for mast extension to a height of potential collision with the beam and the danger could and should have been averted by the simple act of dismantling the obsolete overhead track. As subsequent events have shown, it was also practicable to provide forklifts of shorter mast height which were quite appropriate for the tasks required.
17 Contrasting what I would assess to be the failure of the defendant to remedy an ever present and perceptible danger and the single failure of the plaintiff, I would apportion responsibility to the defendant as 85 percent and the plaintiff 15 percent.
18 I turn to issues of damages. It is common ground that the Workers Compensation Act 1987 (“the Act”) and its restrictions apply. Some brevity is possible thanks to the frank concession by counsel for the defendant that the plaintiff should be taken to have crossed any threshold required by that statute and that I need not trouble with them. I am also assisted by his submission that, for the purpose of assessing non economic loss I should proportion the plaintiff to something in the order of 50 percent of a most extreme case which I would apply in the sense that, even at that level, there is an implied acknowledgment of serious injury and incapacity. I also note that the defendant arranged for the conduct of medical examinations of the plaintiff by Dr Bye, Dr Johnston, Dr Keldoulis and Professor Oakeshott, in respect of which, after they were held, reports were not served on the plaintiff’s representatives. I infer that their content would not have advanced the defendant’s case. Nevertheless other reports were tendered emanating from Dr Shand, Professor Mattick and Miss Trikeriotis, the lastmentioned being an occupational therapist. Dr Shand is a psychiatrist. His report dated 27 October 1998 concludes with a request to view, inter alia, “CT brain or MRI brain” after which he would like to review the case. His only other report (dated 15 January 1999) notes the clear CT scan at Westmead but he thought the history and complaints “justify both neuropsychological testing and MRI brain”. Professor Matteck is a psychologist. His reading of “the evidence” congruent with his assessment on 2 December 1998 was that there was no evidence of significant head injury and he referred to the absence of abnormal CT scan. He concluded by stating that he would “like to see the results of other testing to comment further”. Neither was apparently called upon to consider the demonstration of post traumatic encephalomalacia by MRI in June 1999 administered by Dr Schnier. This gap renders the expressed opinions in these reports unreliable.
19 The plaintiff tendered some seventy odd reports from medical practitioners and associated health professionals. Including a photocopy of hospital notes, the collection stands to a significant measurable height but my attention was directed to little specific content. The same may be said of the volumetrically more modest tender on behalf of the defendant. In those circumstances there is nothing to be gained by recapitulation of what can be read in the exhibits and I will confine myself largely to findings, some of which must necessarily involve elements of generality, scale or prediction.
20 The plaintiff was born on 30 November 1950 and was therefore aged forty six when the accident happened and is now aged fifty. He lives in a de facto relationship with Anastasia Farrell and the household includes her children. The children of his own marriage are independent. I am satisfied that the plaintiff was in good physical health prior to injury and I reject the submission based upon visits to a general practitioner when there was complaint of some back pain following a particular incident, that there was any relevant underlying disability in prior existence. The pattern and extent of the plaintiff’s employment would contradict the conclusion that I was invited by the defendant to reach. A matter of moment is the lack of clarity in the plaintiff’s speech. I found him very difficult to comprehend and it was obviously not a matter of accent or the type of incoherence in articulation which is sometimes encountered when English is a second language. There was no challenge to the evidence of Ms Farrell, which I accept, that prior to the accident the plaintiff’s speech was perfectly clear, both in English and Samoan.
21 The plaintiff sustained multiple injuries. Of prime importance was a closed head injury. Dr Gurka, a specialist in the head and brain injury rehabilitation unit of Westmead Hospital noted “formal testing of his mental state during his hospitalization revealed his duration of post traumatic amnesia to be approximately twelve days indicating a significant traumatic brain injury”. MRI by Dr Schnier to which I have made earlier reference concluded that there was revealed post traumatic encephomalacia affecting the anterior end of the right temporal lobe. I mention the brain injury first because I am satisfied that it offers explanation for many of the plaintiff’s presenting disabilities and incapacities which are looked at by some reporters in a narrower focus especially by those who are sceptical of symptoms in the absence of particularisation in aetiology.
22 That is not to say that other frank physical injuries were not well beyond the trivial. Mandible and maxilla were fractured and required open reduction and fixation together with associated removal of teeth. There were also fractures to the right scapula and several ribs. I also accept that there were injuries (although not evidenced by fractures or similar) to the back in the lumbar and cervical levels, to the right hand and wrist and bilaterally to the knees. I reject the submission by the defendant that the lastmentioned should be found improbable because of an absence of mention in hospital and early stages of treatment records. It is not surprising that the plaintiff may not have been aware of injuries in that area while he was a non ambulant patient and, bearing in mind the multiplicity of injuries, neither is it surprising if there was delay in a variety of symptoms either emerging or being noticed.
23 The plaintiff was a poor articulant of his sufferings and handicaps and this is understandable in the context of his injuries. No doubt because each was asked, expressly or impliedly, to focus on his or her specialty it is not possible to identify a report which comprehensively analyses the plaintiff’s condition. A consequence of this is that the plaintiff’s woes are listed in a somewhat staccato fashion. He suffers from headaches and experiences pain particularly in the shoulder and knees and in other areas of initial injury. I have mentioned his impediment of speech. He has interference with mood control and outbursts of anger. He has a range of psychiatric symptoms. He is treated by Dr Jungfer for matters which are detailed in her reports. His skills in memory, concentration, organization and a host of elements dependent upon unimpaired brain function are reduced. He suffered from diplopia which required corrective prism lenses. As best I can tell these are different from a pre accident noted requirement for spectacles and I am unable to reflect by refusal of damages a submission that he would have needed glasses “anyway”. There has been and will be significant need for dental attention, the details of which are mentioned in the documentation.
24 The foregoing suffices to supply an overview of the plaintiff’s losses and damage. Other handicaps and consequences, as well as some of those already described, can be dealt with as attention is paid to individual ingredients of damage. An allowance will be included for out of pocket expenses including unpaid items scheduled in Exhibit H of $74,852. A further $5,266 will avoid the detriment to the plaintiff identified in Fox v Wood 1981 148 CLR 438.
25 The plaintiff makes a claim for economic loss to date based upon premises that his average weekly earnings at the time of accident were $800.03 nett and that this should be used as a measure for that period from which should be deducted actual earnings at the Japanese Auto Centre of $17,160 (44 weeks @ $390 between 1 October 1999 and 4 August 2000) and $17,280 at Australia Post (27 weeks @ $640 from 13 November 2000 to 15 May 2001). The resultant claim is $135,166. I am conscious that the calculated claim was made to the date of trial and that judgment is following a little later but minor adjustments will be absorbed by the approximations which it is necessary to make in respect of some ingredients of damage.
26 The defendant’s submission was that by the end of 1998 the plaintiff should be found to have regained a substantial residual economic capacity. The submission had reference to the reports of doctors tendered by the defendant and their opinions must be taken to reflect their lack of appreciation of the extent of brain injury in that they were unaware of the results of the MRI confirmation in June 1999 to which I have made earlier reference. Attention was also directed to Commonwealth rehabilitation service suggestions of capacity as early as 1997 but they impressed me as somewhat more ruminative than realistic. The defendant submitted that about $70,000 would be appropriate damages.
27 I consider that the plaintiff has proved this loss to the appropriate standard. I shall later make observations about the dependability of average weekly earnings as a guide (given that they derive from working weeks of upwards of fifty and sixty hours) but I accept the figure as an appropriate guide for the period from accident to date. I am further satisfied that the plaintiff’s extent of residual capacity during this time is reasonably calculated by reference to the jobs in which he in fact engaged. I note that he was retrenched during a reorganization of the Japanese Auto business where he performed carwash and cleaning duties. I find that it was reasonable for the plaintiff to cease work at Australia Post in response to the provocation of symptoms sourced in the accident and his perceived inability to continue comfortably to do the tasks required of him.
28 The damages will include $135,166 for economic loss to date. Interest is claimed on the difference between that sum and the weekly payments of compensation received by the plaintiff. S151M(6) of the Act governs the calculation and I include $15,026 for interest.
29 A claim for future loss of earning capacity was postulated upon a projection of $800 per week for the balance of the plaintiff’s notional working life to aged sixty five, subject to a 15 percent discount to reflect a preponderance of adverse over beneficial vicissitudes during that span. The defendant conceded that some allowance should be made but submitted that the sum of $400 per week would be a more appropriate selected factor for guidance. $800 per week reflects weeks during which extravagant hours of work were undertaken. I have taken into account the existence of a long-hours work pattern over a significant period and that there was no suggestion from the defendant that overtime would not be available at its plant in the future. However I am unpersuaded of the probability that the plaintiff would continue to work with that intensity of hours over the whole of the next fourteen to fifteen years. I note that his base rate in June 1997 was $611.54 gross. The schedules of tax in the evidence apply to the gross earnings including overtime and I do not know what that represents as exact nett earnings.
30 It is necessary to find a balance between a hypothesized $800 per week representing a total loss of earning capacity on the one hand and an evaluation of some residual capacity (as demonstrated by the car wash and post office jobs) and the possible decrease in hours worked even if the accident had not intervened on the other.
31 Despite the two spans of employment, I do not value highly the plaintiff’s prospects of exercising any residual earning capacity. The plaintiff had pre-accident almost negligible non physical skills and I think it likely that if he finds some employment from time to time it will terminate for reasons similar to those which saw the end of the work at Australia Post.
32 Taking all matters into account I have selected a weekly loss of $650 nett as a guide and there will be a consequent inclusion in the damages of $199,621.
33 A claim is made for the loss of compulsory employer subsidy to superannuation. I did not understand counsel for the defendant to oppose this in principle but he pointed out that the quantum would depend upon the fate of his submission as to the rates of loss in the past and future and would require adjustment for subsidy actually derived from past employers and notionally from any future employer.
34 The plaintiff’s claim is calculated in Exhibit J. The claim for loss to date is based upon a total loss of earnings if employed by the defendant and produces a figure of $20,521. As best I can discern from the bundle of documents, the gross earnings at the Japanese Auto Centre appear to have been $19,062 and at Australia Post $18,878. Assuming an employer subsidy of 8 percent upon these grosses the benefit to the plaintiff would have been $3,035. I would include therefore $17,486 for this item in the damages.
35 I would adopt the method of calculation (including elevation of rate to 9 percent) advanced on behalf of the plaintiff for future loss but for coordinate reasons with my selection of $650 per week nett rather than $800 per week nett for future economic loss I would use $900 per week gross as a guide rather than $1,210. $37,337 will be included in the assessment.
36 There is a series of claims for what are tabulated as future out of pocket expenses in Exhibit M. The costing basis of nearly all of the items is a response from a health care professional, often to a somewhat leading question in written enquiry. There is practically no evidence from the plaintiff in regard to his intended expenditure for these items. In the circumstances I will deal with the items in Exhibit M seriatim and where indicated, apply reductions to the calculated claims.
37 I consider it reasonable to allow for the supply of denture needs although I think it unlikely that the plaintiff will keep meticulously to a timetable of five year cyclical replacements. I will include $8,500 for this item.
38 There is no positive evidence of a tort induced need for a routine of six visits per year to a general practitioner and two visits per year to an orthopaedic specialist and unelaborated observations by medical practitioners that such would be reasonable do not persuade me of such a need. I conclude however that some medical consultations during the balance of the plaintiff’s life expectancy should be attributed to the consequences of the accident. In lieu of the sums claimed I assess damages at $3,000 for general practitioner visits and $4,000 for orthopaedic consultations.
39 The evidence does not persuade me that the plaintiff will attend a psychiatrist or psychological counsellor for the rest of his life. I note that he has been receiving this sort of treatment with some intensity. I assume it is directed towards the plaintiff’s well being and not towards making him permanently dependent upon such visits. As is obvious, if the treatment is successful the need for continuing visits will expire or at least decline in need for frequency. If the treatment is unsuccessful I cannot perceive why the defendant should be required to continue to subsidise aimless attendance. The evidence does not suggest that the plaintiff requires lifetime psychiatric or psychological “maintenance”. To cover any such expenditure I will include $4,500.
40 There is no identification of the source of the claim that the plaintiff will require an ophthalmological visit and new glasses annually. It does not appear in Exhibit M and if it is in some document in the Exhibit A bundle or elsewhere my attention was not drawn to it. Counsel for the defendant observed that there was a pre accident need for glasses of some type and I would infer that as he now must have specific prism lenses he is saved the expenditure on the former. $4,000 will represent this item.
41 A comparatively large claim is made for operative treatment. Whilst I accept the bona fides of Dr Mahony’s estimates, I would assess the chance of the plaintiff actually undergoing such surgery at no greater than 20 percent. For the chance I would include approximately that proportion of the sum claimed and the result is inclusion of $6,000.
42 The final claim in the series is for physiotherapy, hydrotherapy and gymnasium exercise. It does appear from the evidence that the plaintiff is engaging in such activities but although a routine is mentioned it is difficult to be precise. There are records which show that the plaintiff’s compliance with treatment requirements is on occasions significantly less than punctilious. There is also a necessity to take into account the length of time that the plaintiff will engage in the activity. I will include $12,000 for this item.
43 I next deal with a claim for what have been titled in Exhibit L as “domestic services”. There was some evidence of the arrangements within the household from the plaintiff and Ms Farrell but, on their own, their evidence fell far short of persuading me that there was significant tort induced need to the extent of the submission which seems to be based upon provision of “personal care and domestic assistance” rated at twenty five and a half hours per week. The plaintiff relied upon Exhibit K which is a report from a company called WorkCase Pty Limited prepared by a Ms Cadby a rehabilitation consultant and a Mr Dimitriadis an accountant. There is no evidence that Ms Cadby ever met the plaintiff and the contrary is suggested by par 1.2 of Exhibit K. In contrast Ms Trikeriotis whom I have mentioned was an occupational therapist retained by the defendant, saw the plaintiff at a home visit. There are direct reports from the plaintiff to her, the authenticity of which were not challenged. For example there is conveyed that the plaintiff reports being fully independent and managing his personal care. He can cook simple snacks. His pre accident culinary skills were left obscure. He is capable of shopping. At the time he saw Ms Trikeriotis he was not driving because of his diplopia. He has been treated and given prism lenses in respect of this and he is now independent to the extent that he drives a motor car. I will not recite all the detail which appears particularly at pages 8 to 11 of Ms Trikeriotis’ report.
44 Whilst I regard the extent of need postulated in the WorkCase report as extravagant I also regard Ms Trikeriotis’ final assessment as overly conservative.
45 Counsel for the defendant recognized that, both as to past and future, there needed to be some allowance and he submitted that the latter could be reflected by an estimate of a supply rate of one hour per day. S151K of the Act has effect. S151K(3) cannot be overlooked in the context of the evidence of the plaintiff and Ms Farrell.
46 I reject some aspects of the claim. There is calculation based upon provision of a “handyman”, past and future, for two hours per week. While this may appear modest at first glance, it amounts to a forty hour per week tradesman at the premises about two and half weeks a year, every year during the plaintiff’s lifetime. Importantly the WorkCase document tendered by the plaintiff states “Mr Curry did not report any need for assistance with the occasional activities of daily living as he lives in rented premises and is not responsible for repairs and maintenance”. I have already noted that the “report” seems to have been extracted from documentation rather than interview. Any minor jobs will be encompassed in the provision I do make which is, I observe, the approach taken by WorkCase.
47 A claim of $97,332 is made for future case management on the basis of one hour per week at the rate of $120 per hour. This is in addition to the specified twenty five and half hours per week of other assistance. The claim is distinct from fund management in respect of any judgment sum and is based upon the statement that the plaintiff requires an occupational therapist to assist him with “planning and organizing day to day activities”. I am not satisfied that a need for such service has been proved. The reality is that for example, shown the way on the first occasion, a not uncommon requirement and not one exclusive to the handicapped, the plaintiff was able to drive himself to and from work, and fulfil the tasks required of him. His cessation at Australia Post had nothing to do with inability to plan or organize. In the overall scheme of things domestic organization is not likely to be more complex than employment and I am not satisfied that the need for a case manager has been proved.
48 Although I decline to adopt a factor of twenty five and half hours per week, the table of calculations by Mr Dimitriadis can conveniently be adopted and adapted as they incorporate the prescribed S151K rates. A minor adjustment is also necessary to correct any allowance for time when the plaintiff was in hospital and obviously not receiving personal care and domestic assistance other than from the hospital staff, for which payment is accommodated in the out of pocket expenses.
49 I have come to the conclusion that it will do justice between the parties if I use as a guide a figure costed at twelve hours per week to cover any form of personal care and domestic assistance both in the past and in the future. The approximations and uncertainties inherent in making calculations on a guideline basis will absorb any necessary adjustments. Mr Dimitriadis calculates the notional damages to date at $87,377 based on twenty five and half hours per week. One hour would therefore reduce to $3,426.55 and accordingly I include $41,119 for twelve hours for services to date.
50 Using a similar method the future evaluation is represented by $167,216. This figure is derived from an assumption of service supply over the plaintiff’s life. Some desultory submissions canvassed whether or not a discount for adverse vicissitudes should be considered. No authority was referred to. The use of life expectancy tables involves averages and allowance for mortality and to the latter extent one important adverse vicissitude has been catered for. In the absence of any persuasive argument or authority binding me to act otherwise I do not find it appropriate to discount the calculated figure.
51 The penultimate claim is for management fees. The plaintiff’s solicitor wrote to Dr Jungfer in October 1999 enquiring “could you also advise if the plaintiff is in a position to manage a large sum of money once his case has been completed”. She replied “concerning the issue of his ability to manage his financial affairs, my opinion expressed in the report of October 1998 stands and I believe that in consideration of his difficulties he requires the appointment of a financial manager”.
52 I advert to her report under reference where she opines “Mr Curry would appear to have some difficulties with regard to the management of his financial affairs. Whether this is on the basis of a lack of resources, or from his cognitive and planning problems is difficult to determine at this time. It would be my recommendation that a financial planner and manager be made available to him”.
53 The plaintiff submitted that this claim was supported by Ms Trikeriotis. It is instructive to refer to what she did say, namely: “Mr Curry reports (ability?) to handle general transactions for routine shopping, and travel. He was aware of rental costs and the need to budget for other services such as telephone etc. His capacity to manage a large sum of money for investment however is probably limited based upon lack of prior knowledge or experience pre injury. He may need assistance to plan and manage any future lump sum award to ensure maximum benefit is attained for his long term needs.” Emphasis is added.
54 The evidence falls short of demonstrating a tort induced need for the supply of a manager. I observe that the plaintiff’s representatives have not seen fit to have a guardian appointed in relation to his estate or a tutor in respect of the litigation. Whilst I do not in any way seek to trivialize the plaintiff’s handicaps, I find that this claim is not soundly based and it is rejected.
56 For ease of reference I will tabulate the foregoing ingredients:55 The final ingredient of damage is to reflect non economic loss. It is agreed that the applicable figure to reflect a most extreme case is $222,450. In a different context, I have already observed the submission on behalf of the defendant that approximately 50 percent of an extreme is appropriate. The plaintiff points to evidence that in terms of the Act the brain damage has been assessed at 40 percent of whole body impairment and an accumulation of the various orthopaedic factors mentioned by Dr Mahony results in 62.5 percent whole body impairment. The proportionality to a most extreme case is necessarily always a matter of impression about which views may obviously differ. I propose to include in the award 60 percent of the maximum and there will therefore be included $133,470.
Out of pocket expenses Fox v Wood Past economic loss Interest on “gap” Future economic loss Past superannuation subsidy Future superannuation subsidy Future expenses - Dentures General practitioner Orthopaedic consultations Psychological therapy Spectacles Surgery Exercises Past domestic services Future domestic services Non economic loss TOTAL:
57 I was asked by counsel to note an agreement that the plaintiff had received workers compensation benefits by way of expenses and weekly payments of $73,692.75 and $51,683.86 respectively. S.151B(1)(b) of the Act would appear to operate to treat deduction of those sums from the damages (and payment to the person who paid the compensation if that person is different from the employer) as pro tanto satisfaction of the judgment debt. However, the amount of the deduction will be affected by s151N(4) which incorporates Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965.
59 Liberty to apply forthwith in respect of costs.58 I direct entry of judgment for the plaintiff for 85 percent of the assessed damages of $868,559 namely $738,275.
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