D'Arcy v Caltex Australia Limited (No 2)
[2018] ACTSC 306
•9 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | D’Arcy v Caltex Australia Limited (No 2) |
Citation: | [2018] ACTSC 306 |
Hearing Date: | 30 August 2018 |
DecisionDate: | 9 November 2018 |
Before: | Burns J |
Decision: | See [45]-[46] and corrigendum at [47] |
Catchwords: | PRACTICE AND PROCEDURE – Two fundamental errors – whether the Court is entitled to correct errors – Court Procedures Rules 2006 (ACT) r 1613 – filing of the order – amendment to decision TORTS – Personal injury – plaintiff’s ongoing earning capacity –medical evidence – economic loss |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 1606, 1613, Dictionary |
Cases Cited: | Lewis v The Australian Capital Territory (No 8) [2018] ACTSC 218 |
Parties: | Phillip Raymond D’Arcy (Plaintiff) Caltex Australia Limited (ACN 004 201 307) (First Defendant) Fuel-Sys Installations Pty Ltd (In liquidation) (ACN 143 223 803) (Second Defendant) |
Representation: | Counsel Mr L Grey (Plaintiff) Mr J Gracie (First Defendant) Mr P Morris SC (Second Defendant) |
| Solicitors Sneddon Hall and Gallop Lawyers (Plaintiff) Colin Biggers & Paisley Lawyers (First Defendant) Curwoods Lawyers (Second Defendant) | |
File Number: | SC 263 of 2014 |
BURNS J:
On 3 August 2018 I published findings and reasons concerning the plaintiff’s claim for damages against Caltex (the first defendant) and Fuel-Sys (the second defendant). I disposed of the proceedings against Caltex (except as to costs) by entering judgment for it against the plaintiff. I indicated that I would enter judgment for the plaintiff against Fuel-Sys, but I was not in a position to finally calculate the amount of that judgment. I directed the parties to prepare orders consistent with my findings and reasons. I also allowed the parties 14 days to apply for a different costs order in default of which the plaintiff was to pay Caltex’s costs of the proceedings against it and Fuel-Sys was to pay the plaintiff’s costs of the proceedings against it.
Both Caltex and Fuel-Sys applied for different costs orders. When the applications came before me on 30 August 2018 it quickly became clear that the parties had been unable to comply with my direction that they prepare orders to reflect my findings and reasons because I had made two fundamental errors in the preparation of the figures calculating the plaintiff’s economic loss in my reasons of 3 August 2018. Both of these errors occurred because I misunderstood the written submissions provided by the plaintiff. The two errors were, first, that I understood the figures provided by the plaintiff for average weekly earnings were nett figures when they were gross figures and, secondly, I understood the plaintiff to concede that he had a residual capacity to earn $900 per week nett after the accident, when no such concession was made. I stress that these were my misunderstandings, and were not the fault of counsel.
As a consequence of the second misunderstanding I did not actually engage with the evidence led during the proceedings concerning the plaintiff’s ongoing earning capacity.
At the hearing on 30 August 2018 there was a brief discussion as to whether I was entitled to correct the errors identified in my findings and reasons of 3 August 2018. I expressed the tentative view that I could, but advised the parties that I would consider the issue and advise them as soon as possible how I intended to proceed. As a consequence I deferred considering the costs application by Fuel-Sys, as any revision of the proposed basis for my assessment of damages may have an effect on that application, and it would be inappropriate for me to be advised of any offers of compromise until the revision was completed.
By an email sent at my direction by my Associate on 31 August 2018 the parties were advised that I was satisfied I had the power to correct the errors in my findings and calculations, and would do so as soon as possible.
The primary basis for my satisfaction is rule 1613 of the Court Procedures Rules 2006 (ACT) (CPR), which provides:
1613 Orders—setting aside etc
(1) The court may amend or set aside an order before the filing of the order.
Note 1 Order is defined in the dictionary to include judgment (see also def made).
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(2) The court may set aside an order at any time if—
(a) the order was made in the absence of a party; or
(b) the order was obtained by fraud; or
(c) the order is for an injunction or the appointment of a receiver; or
(d) the order does not reflect the court’s intention at the time the order was made; or
(e) the party who has the benefit of the order consents; or
(f) for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
(3) If the court sets aside an order, it may also set aside any order made to enforce the order.
(4) If the court sets aside an order under subrule (3), the setting aside of the order does not affect the title to any property sold under the order before it is set aside.
(5) This rule does not apply to a default judgment.
Note See r 1128 (Default judgment—setting aside etc) in relation to setting aside a default judgment.
An order, for the purposes of the CPR generally, includes a “judgment, decree, direction or decision, whether or not final”: see the Dictionary to the CPR.
The “filing of the order” referred to in Rule 1613 is a reference to Rule 1606 which provides:
1606 Orders—filing
(1) If a judicial officer or associate writes the date and terms of an order on a court file or document on a court file, then, unless the order is filed in the court, the writing is sufficient proof of the making of the order, its date and terms.
(2) An order of the court is filed in the court if a document embodying the order, and the date the order was made, is drawn up, settled and signed by the registrar, and filed in the court.
(3) The party in whose favour an order is made may, not later than 7 days after the day the order is made, file in the court a draft order for settling by the registrar.
Note See
·approved form 2.41 (General form of judgment—civil proceeding) AF2015-30
·approved form 2.42 (General form of order—civil proceeding) AF2015-31.
(4) If a draft order is not filed in accordance with subrule (3), another party to the proceeding may file in the court a draft order for settling by the registrar.
(5) If a draft order is filed in the court under this rule, the registrar—
(a) may approve the draft with or without amendment; and
(b) must enter the order on the filing of the final order in accordance with the approved draft.
(6) An order must be filed in the court if—
(a) the order is a judgment or other final order; or
(b) the court directs it to be filed; or
(c) a party asks for it to be filed.
(7) Unless an order is filed in the court—
(a) the order may not be enforced under part 2.18 (Enforcement) or by other process; and
(b) an appeal may not be brought against the order without the leave of the court to which the appeal would be made.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.
(8) However—
(a) an order appropriate on default of an earlier order may be made without the earlier order being filed in the court; and
(b) costs payable under an order may be assessed without the order being filed in the court.
No order has been filed as anticipated by rule 1613(2) based upon my reasons and findings of 3 August 2018; indeed it was not possible for this to occur because I had not been able to finally quantify the plaintiff’s loss. I am satisfied, therefore, that by reason of rule 1613 I may amend or set aside my decision of 3 August 2018 to the extent necessary to address the errors referred to above.
A secondary basis for my satisfaction that I am entitled to revisit my decision of 3 August 2018 are the principles referred to by Refshauge J in Lewis v The Australian Capital Territory (No 8) [2018] ACTSC 218 at [9] to [20]:
Recall and reconsideration
9.Given that I had announced my decision, it might be considered that this ended my role and brought finality to the proceedings, despite the error in me not having regard to the reply submissions. Finality in litigation is an important value. As the plurality said in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at 17, [34], “controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”.
10.Indeed, the High Court has made it clear that there should be a strict approach to finality, even if, as suggested in Clone Pty Ltd v Players Pty Ltd (In Liq) (Receivers & Managers apptd) [2018] HCA 12 at [69], there is an apparent oddity to some consequences where correctible error has been made but cannot be corrected because of the principle. It is, as the Court there observed, not absurd, for the interest of finality means that not every error can be corrected.
11.It is, however, important to identify when a judgment or order has the character of finality which attracts the important value to which I have referred. A judgment or order is usually pronounced orally in court as I did in this case, on 6 April 2018. Such a judgment is effective from when it is pronounced as Brereton J pointed out in In the matter of Fewin Pty Ltd [2016] NSWSC 1945 at [9]. See Ex parte Hookey; In the matter of The Risca Coal and Iron Co (1862) 4 De G F & J 456 at 458-9; 45 ER 1261 at 1262. In this Territory that common law rule has been enshrined in statute, namely in r 1605 of the Court Procedures Rules 2006 (ACT).
12.There is, however, a difference between when a judgment or order is pronounced and when it is entered in the records of the Court. As Lord Esher MR explained in Holtby v Hodgson (1889) 24 QBD 103 at 107:
Pronouncing judgment is not entering judgment; something has to be done which will be a record, and so the judgment that the judge has pronounced is the judgment which is to be entered.
13.The entry of the judgment or order is effected by the sealing of a formal order of judgment. This is done under r 1606 of the Court Procedures Rules 2006 (ACT) and is required in some circumstances. It is this procedure which provides for the method by which a judgment or order is formally entered: Eastman v The Queen [2008] FCAFC 62; 166 FCR 579 at 586-7, [17].
14.This is significant, for when a judgment or order has been entered into the records of the court or, as is sometimes described, has been “perfected” or “authenticated”, then the principle of finality applies to it: Burrell v The Queen [2008] HCA 34; 238 CLR 218 at 224, [18]-[20].
15.Prior to that time, however, the court has power to recall the judgment or order and reconsider it. As Hansen J pointed out in McConnell Dowell Middle East LLC v Royal & Sun Alliance Insurance (No 3) [2009] VSC 94; 226 FLR 84 at 88, [16]:
It is well established that a judgment or order can be recalled or revised at any time before authentication, and it is not uncommon for a judgment or orders pronounced in open court to be revised in chambers, with the revised form being authenticated at a later date, but speaking as of the date the order or judgment was originally pronounced in court.
16.The principle was set out clearly by the UK Court of Appeal in R v Cripps; Ex parte Muldoon [1984] 1 QB 686 at 695, as follows:
It is well settled that any judge is fully entitled to reconsider and vary any decision at any time before the order embodying or based upon that decision has been perfected (Re Suffield and Watts; Ex parte Brown (1888) 20 QBD 693 at 697 per Fry LJ), although in some circumstances he may be under an obligation to give the parties a further opportunity to be heard. At that stage no slip rule power is needed. However, once the order has been perfected, the trial judge is functus officio and, in his capacity as the trial judge, has no further power to reconsider or vary his decision whether under the authority of the slip rule or otherwise. The slip rule power is not a power granted to the trial judge as such. It is one of the powers of the court, exercisable by a judge of the court who may or may not be the judge who was in fact the trial judge.
17.Thus, despite some misgiving about the basis and width of such a principle in Burrell v The Queen at 224, [18]-[19], Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ re‑affirmed the principle, saying (at [20]):
Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter as at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.
18.This approach has been accepted in this jurisdiction when the Full Court of the Federal Court, on appeal from this Court, said in Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 at 584, [18]:
In civil cases, before a judgment or order has passed into record, the judge who gave the judgment or made the order may reconsider the decision and withdraw, alter, or vary it: Carroll v Price [1960] VR 651 at 657. After a judgment or order has been formally entered in the records of the Court or, to use the language which is sometimes invoked, ‘authenticated’, the judge is said to be functus officio.
19.Thus, until the order in a civil case is perfected or authenticated in accordance with r 1606 of the Court Procedures Rules, the trial judge is not functus officio and may recall or reconsider the judgment pronounced, though, in appropriate cases, may be required to give the parties an opportunity to be heard, to accord with the principles of natural justice. The question of when an order is perfected in criminal cases appears to be different, as held in Jovanovic v The Queen.
20. It is for this reason that I recalled the order and made the direction I gave in chambers, to which I refer above (at [7]), so that this omission in not having regard to the reply submissions made by Mr Lewis could be rectified prior to the costs order becoming final. I notified the parties of what I had done.
For my part, I prefer to approach the matter as an amendment to my decision of 3 August 2018 as permitted by rule 1613, but if it should prove necessary then I would recall my decision pursuant to the principle enunciated by Refshauge J.
12. I made it clear to the parties on 30 August 2018 that in my opinion the period for the commencement of any appeal did not begin to run until I published my final orders.
13. For the reasons given, it is necessary to engage with the evidence concerning the extent of the plaintiff’s injuries, and the effect upon his ability to earn.
The medical evidence
14. In a report dated 23 October 2012 Mr Brett Haig, an occupational therapist, noted that the plaintiff was continuing to attend hand therapy on a twice weekly basis and was making good gains with regard to his hand movement and function. He had recently been issued with pressure garments and appeared pleased with how he was tolerating these and the effect they were having on his discomfort. Mr Haig said that the plaintiff remained distressed regarding home finances and had had to seek assistance from local charities to buy things, including food and groceries. The plaintiff also advised Mr Haig that his wife was having problems coping with additional cleaning, yard work etc. He noted that the plaintiff has a disabled child at home which had already increased the plaintiff’s wife’s workload. Mr Haig noted that the plaintiff was suffering discomfort due to his burns and that the issue of air-conditioning of his residence needed to be addressed urgently. He also recommended that the plaintiff be referred to a psychologist.
15. In a report dated 8 October 2014, Ms Karen Mulready, a psychologist, advised that the plaintiff was diagnosed with post traumatic stress disorder, symptoms which included re-experiencing the traumatic events of his injury and avoidance behaviour. He suffered increased anxiety and emotional arousal, evidenced by difficulty falling or staying asleep, irritability, difficulty concentrating and hypervigilance. Ms Mulready noted that the plaintiff was dealing with the physical impact of the injury, including chronic pain and the resultant impact on his lifestyle and employment. When seen by her on 1 July 2014, the plaintiff told her that he was undertaking physical activity, such as windsurfing, and had completed a recent work trial and training course. He had attended a total of 22 psychological sessions at Connexions from November 2012 to July 2014. She did not believe that any further psychological treatment was indicated at that time. She did not consider the plaintiff fit for his pre-injury occupation given the nature of post traumatic stress disorder. She considered his prognosis to be good.
16. In his second report dated 16 November 2014, Mr Haig responded to a request for a report from the plaintiff’s lawyers. He had last seen the plaintiff on 19 August 2013. At that time he had grip strength of 48 kg in his left hand compared with 47 kg in his right hand. He reported slight pain in the dorsum of his wrist in his right hand on strength testing. He was able to make a full fist with both hands with his fingertips touching his palm, however it was noted that in his left hand the dorsal aspect of his fingers felt tight. The plaintiff had 65 degrees of wrist flexion and 70 degrees of wrist extension in his right wrist, compared with 70 degrees of flexion and extension in his left wrist. There had been some suggestion at that time that the plaintiff may undergo further surgery for revision of his scars, but Mr Haig was not aware whether this had occurred. Mr Haig said that the plaintiff had attended for hand therapy on 39 occasions between October 2012 and August 2013. Exercises had focused on increasing strength and flexibility in his hands. Scar hypersensitivity was an issue early in his rehabilitation, and desensitisation exercises were also included in his therapy program.
17. Two reports from Dr Thomas Oldtree-Clark, a consultant forensic psychiatrist, were tendered on behalf of the plaintiff. Dr Oldtree-Clark examined the plaintiff on 28 April 2015. The first report is dated 29 April 2015 and sets out the results of that examination. The plaintiff complained that he had ongoing stress related to the accident, including recurring and intrusive nightmares with difficulty going to sleep as well as staying asleep. He had constant thoughts of the incident throughout the day, felt distressed when reminded of the trauma, and was feeling quite fragile. He avoided petrol stations or anything that reminded him of the incident. He said that he suffered a loss of his pre-injury activities and felt detached emotionally and numb. The plaintiff complained of frequent outbursts of anger, difficulty concentrating and hypervigilance. His weight had increased by 15 kg. He complained of breathing difficulties as a result of his burns, and skin sensitivity. The plaintiff stated that that he had secured a job as a library van driver for the local council. Dr Oldtree‑Clark diagnosed the plaintiff as suffering from a Post-Traumatic Stress Disorder relating to a Major Depressive Disorder. He believed that the condition had stabilised.
18. Dr Oldtree-Clark’s second report is dated 5 May 2015 and sets out an assessment of the plaintiff’s whole person impairment. He assessed the plaintiff as exhibiting moderate impairment for employment, which had the following criteria “Cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different, e.g. less stressful”. He assessed the plaintiff as suffering a whole person impairment of 15 per cent based upon his psychiatric condition.
19. Dr Howard de Torres, a Hand and Plastic and Reconstructive surgeon, provided three reports, each dated 8 May 2015. In the longest of the three reports, Dr de Torres noted that the plaintiff complained of webbing between his thumb and fingers on his left hand, abduction contractures to his left fifth digit, itchiness, mainly to his right arm with exertion, skin fragility, sleep problems, depression with loss of libido and obvious scarring. Dr de Torres stated that the plaintiff has irreversible scarring to his limbs which has left him with some contractures which could be released. With regard to employment, Dr de Torres said “[w]hilst it is possible he could return to work he would have to be restricted to duties which would suit his abilities. In addition, he would have to involve work which protected his skin from the environment. I would suggest indoors employment with some protective clothing if needed. However, his major problem is psychological and I understand he is seeing a psychiatrist for further assessment.” Later, Dr de Torres said that, from a physical point of view, the plaintiff could return to some form of employment provided it was indoors or, if outdoors, his skin was protected.
20. Essentially the same information was provided in his second, shorter report of the same date.
21. The third report is entitled Impairment Assessment, and using the AMA Guides to the Evaluation of Impairment, Dr de Torres assessed the plaintiff’s Whole Person Impairment at 36 per cent.
22. In a report dated 23 November 2016, Dr Deon Mostert, a general practitioner, expressed the opinion that the plaintiff would require ongoing specialist review as needed with regard to his burns, and physiotherapy on a regular basis, twice or more a month to prevent contractures and improve function. With regard to the plaintiff’s psychiatric condition, he believed the plaintiff required counselling once or twice a month to help with coping skills, anxiety, anger, insomnia and depression. He recommended exercises involving a structured plan, and continued use of medication.
23. In her second report dated 16 December 2016, Ms Karen Mulready, psychologist, noted that the plaintiff attended no psychological sessions from 8 October 2014 until April 2015. At that time, he presented as noticeably depressed, more introverted and detached, agitated/angry and finding it difficult to undertake previously valued activity. The plaintiff told Ms Mulready that he was struggling with his skin becoming more fragile, and had been disheartened by his experience of attempting truck driving and receiving unfavourable feedback. He stated that he was able to continue performing tasks such as mowing the lawn as he undertook them differently and paced himself. The plaintiff commenced fortnightly psychological sessions to mid May 2015. On 26 May 2015 the plaintiff informed Ms Mulready that he had obtained another temporary employment position and had recommenced a more recent hobby of metal detecting. He reported that his moods were “up and down”, however working helped improve his mood. He reported that he was less cranky at home and was looking forward to doing more valued activity. The plaintiff did not attend any sessions from September 2015 until March 2016. When he resumed appointments with Ms Mulready in March 2016 he reported that he had little motivation to undertake valued activity, that he had to stay indoors in the warmer weather which negatively impacted his mood, that he was short of breath and frustrated that his recovery had apparently plateaued. He reported that he was short tempered and had poor sleep patterns. He had reduced his socialising and had poor nutrition. When he attended his next psychological session in May 2016 he had obtained further shifts at his employment, was sleeping better, had improved his nutrition and implemented more mindful activity. In June 2016 he reported his mood had remained stable, he was undertaking enjoyable activity and his improved sleep patterns had been maintained. In a further session in October 2016 he reported that he had for the previous two months experienced pain in his thighs and throughout his back. He reported that he was attempting to find additional employment, however was uncertain as to a vocational goal.
24. A number of occupational assessments were tendered as Exhibit L in the proceedings. On 1 May 2013 Ms Linda Hancock of RehabCo provided an Initial Return to Work Assessment Summary to QBE Workers’ Compensation (NSW) Ltd. She noted that the plaintiff’s treating doctor, Dr Reddy, had certified the plaintiff as unfit for work until the end of May 2013. She stated that the plaintiff presented as motivated to return to work and indicated that he was feeling well and reported that he was not in any pain. The plaintiff reported tightness in his skin on his hands and arms. The report noted that RehabCo and QBE had been unable to contact “the employer” (presumably, Fuel-Sys) to discuss suitable duties for the plaintiff. Ms Hancock stated that it was unlikely that the employer would be able to provide suitable duties for the plaintiff due to his current abilities and the nature of the jobs provided by the company. She noted that the plaintiff was unable to work in a confined space as a result of his PTSD. With regard to identifying new employment for the plaintiff, Ms Hancock noted the following relevant circumstances:
(a)Physical:
(i)the plaintiff reported he was not experiencing any pain and was weaning off his pain medication;
(ii)the plaintiff had experience in carpentering, maintenance work in a nursing home and as a fibreglass laminator;
(iii)the plaintiff was able to drive a car and was licensed to drive a truck;
(iv)due to scar tissue, the plaintiff was not able to work in sunlight;
(v)as the plaintiff was not able to regulate his own temperature due to skin graft and donor sites not sweating, he had to work in a regulated temperature environment;
(vi)the plaintiff had reduced strength, but was able to write;
(vii)the plaintiff was not computer literate.
(b)Psychological:
(i)the plaintiff was very motivated to find suitable work;
(ii)the plaintiff had been diagnosed with Post Traumatic Stress Disorder following his accident;
(iii)the plaintiff was not able to work in an environment involving fire or confined spaces.
25. On 6 March 2014, RehabCo prepared a document titled Suitable Duties Plan No.1 for the plaintiff to return to work as a store person at Bunnings Warehouse Warrawong. It appears that the plan was for a staged return to work over a period of approximately six weeks. During the first two weeks the plaintiff would work four hours a day, three days a week performing duties including stacking shelves, placing returns on shelves, customer service, pushing/pulling shopping trolleys, assisting customers to take items to their car and assisting to assemble display items. The second stage was for a further two weeks, working eight hours a day for three days a week. The third stage was for a further two week period, with the plaintiff working eight hours a day, five days a week. The document noted that the plaintiff could not work outdoors in direct sunlight for prolonged periods. It also noted that he was sensitive to temperature and had a reduced lifting capacity. It was noted that the physical demands of the position required frequent walking, frequent standing, occasional lifting and carrying of boxes up to 15 kg, frequent lifting of items up to five kg, occasional use of arms above shoulder height and occasional pushing and pulling of trolleys.
26. A further document titled Suitable Duties Plan No.1 and dated 30 July 2014 was prepared by RehabCo for the plaintiff to undertake a work trial as a truck driver. The trial was for three weeks, and involved the plaintiff working 60 hours per week. In the first stage of the trial, for a period of one week, the plaintiff was to work five shifts of 12 hours between 6 am and 6 pm. His duties included riding with another driver and observing routes and safe work practices, driving a truck over a 12 hour shift with supervision, loading/unloading the truck with use of cables and climbing up three steps into the truck occasionally during shifts. The second stage of the trial was for a period of two weeks and involved the plaintiff undertaking the same duties as during the first week of the trial, but in addition driving the truck over the 12 hour shift with or without supervision at the discretion of the employer.
27. A report dated 17 November 2014 and titled Functional Capacity Evaluation was prepared by an organisation called Ipar Rehabilitation. It appears that this document was prepared for the plaintiff’s workers compensation insurer. The plaintiff was assessed as being able to undertake a number of physical activities without limitation, including sitting, standing, walking, climbing, forward reaching, stooping, kneeling, squatting, crawling and overhead reaching. He was assessed as having a capacity to lift and carry up to 17.5 kg using both arms, and to carry up to 12.5 kg using a single arm. The author of the report believed that the plaintiff’s functional capacity was limited by generalised muscular deconditioning in his lower limbs. The author expressed the opinion that the plaintiff could work eight hours a day, five days a week. Based upon the Functional Capacity Evaluation, it was stated that the plaintiff demonstrated a capacity to perform work of a medium strength nature on a full‑time basis.
28. The next document in Exhibit L consists of a typed document from Ipar to Dr Reddy dated 28 November 2014, and Dr Reddy’s handwritten responses to questions posed in that document. In response to a question as to what restrictions the plaintiff should adhere to while working in a new role of employment, Dr Reddy said that there was no restriction except that he could not do his previous tank relining work. Dr Reddy made no recommendations for further treatment or medical intervention. He considered the plaintiff to be fit for handyman work, work as a delivery driver or work as a storeperson.
29. The next document is entitled Vocational Plan and is dated 26 November 2014. It was prepared by Donna Peterson, a vocational specialist. The plaintiff had been referred to Ms Peterson by the workers compensation insurer “to identify a clear vocational goal for him and develop strategies for overcoming barriers to a return to work”. Based on the outcome of the vocational assessment, Ms Peterson was of the opinion that suitable employment options for the plaintiff included maintenance worker, delivery driver, or store person/warehouse assistant/forklift operator. Ms Peterson stated that a review of the plaintiff’s employment history and educational/training background revealed that he possessed an adequate level of literacy in English and numeracy skills to be able to successfully perform in these roles.
30. A document titled Care Needs Assessment dated 22 August 2016 was prepared by Eryn McKellar, an occupational therapist, at the request of the workers compensation insurer. Ms McKellar reviewed a number of reports, and noted the plaintiff’s injury history. The plaintiff told Ms McKellar that he was currently attending psychological treatment every four to six weeks as required. He reported that he continued to experience difficulty getting to sleep, and occasionally suffered night terrors and flashbacks when watching fire scenes on television. He reported that treatment had assisted him, however he noted that he still frequently felt down about the accident and his situation and felt his mood was still somewhat unstable. The plaintiff told Ms McKellar that as a result of his significant burns sustained in the accident, he needed to be cautious of his skin and not perform any hard labour as the skin on his hands is weak and thin and easily breaks down. He also stated he needed to be careful around heat, and to keep the burn sites covered when in the sun. He reported that he was unable to have his arms or hands in direct sunlight and often wore gloves and full clothing to protect his skin. He stated that he was unable to be outside for more than 10 minutes in summer as his skin began to sweat and feel tight and was at risk of breaking down. The plaintiff stated that this limited his outdoor activities which he found difficult. The plaintiff also told Ms McKellar that he continued to have difficulty in regulating his body temperature, particularly in summer, and was required to remain indoors and use an air conditioner. The plaintiff also reported that as a result of the damage to his lungs, he has asthma like symptoms and is required to use a Seretide puffer to prevent inflammation of his lungs. He advised that he developed lung infections more frequently and that the severity and duration of those illnesses tended be worse. The plaintiff told Ms McKellar that he had been able to return to some leisure activities including underwater metal detecting and windsurfing. He advised that he wears a full body suit to protect himself from the sun, and as he is submerged in water he does not experience any issues with his skin. He reported that returning to these tasks had helped his psychological health and general well‑being.
31. The plaintiff told Ms McKellar that he had, with the assistance of a vocational rehabilitation provider, obtained employment through Wollongong Council doing maintenance work, however he experienced difficulty in completing all required tasks due to the need for sun exposure and the physical demands of the position. After approximately six months in this role, he obtained a position as a library courier and, at the date of the report, continued to be employed in that role. He reported that he usually only worked when one of the two permanent staff were on holidays or sick.
32. Ms McKellar expressed the opinion that the plaintiff was motivated to return to work in a part-time capacity, however reported difficulty locating suitable employment. She recommended that the plaintiff receive further assistance from a vocational rehabilitation provider to assist in reviewing his interests and experience, as well as the labour market in order to identify potential retraining options and return to work goals.
33. The most recent report addressing the plaintiff’s ability to undertake suitable employment is a report prepared by Ms Stephanie Srbinovska (a rehabilitation consultant (provisional psychologist)) and Ms Sophie Gibbs (a rehabilitation consultant (an occupational therapist)) dated 31 March 2017. The report is titled Earning Capacity Assessment Report. It noted that the plaintiff was currently undertaking an on-call position as a library courier with Wollongong Council, with no specified hours per week. His current weekly wage, as a nett amount, for a 40 hour week was $694.52. Based upon a functional capacity evaluation, self-reported activities of daily living, and functional tolerances, the plaintiff’s functional capacity was summarised as being:
(a)unrestricted capacity for sitting;
(b)unrestricted capacity for standing;
(c)unrestricted capacity for forward reaching at chest height;
(d)reduced capacity for stooping tasks;
(e)limited capacity for overhead reaching tasks;
(f)unrestricted capacity for walking;
(g)lifting capacity of up to 9.6 kg from floor to waist height, a maximum of three times per hour;
(h)lifting capacity of up to 8.3 kg from waist to shoulder height, a maximum of three times per hour;
(i)lifting capacity of up to 3 kg from floor to overhead height, a maximum of three times per hour;
(j)carrying capacity of 10.2 kg over a distance of 13 m.
34. The assessment stated that the plaintiff had the capacity to work eight hours per day, five days per week for any form of employment. However it was noted that the plaintiff’s performance was limited by poor manual handling technique, reduced fitness, and general weakness and deconditioning. A gradual increase in hours of work was recommended to increase his work conditioning and facilitate sustainability of suitable employment. The report considered a number of potentially suitable work options, each of which was excluded for various reasons. These options were:
· Sales Assistance/Customer Service – Mr D’Arcy presents with knowledge in customer service and demonstrates knowledge specific information relating to tool and equipment use, often required in the area of Hardware/Trades Services Sales Assistant, however the labour market research indicated that these roles require frequent bending, lifting (greater than 9.6 kilograms), and reaching above shoulder height which is outside of Mr D’Arcy’s capacity as established both during the Functional Capacity Evaluation on 14 March 2017 and advised on his WorkCover Certificate of Capacity issued 30 January 2017.
· Truck Driver – Mr D’Arcy presents with skills and licencing to pursue the role of Heavy Combination Truck Driver, however the labour market research indicated that these roles require frequent lifting (greater than 9.6 kilograms), reaching above shoulder height, and strong gripping whilst driving which is outside of Mr D’Arcy’s capacity as established both during the Functional Capacity Evaluation on 14 March 2017 and advised on his WorkCover Certificate of Capacity issued 30 January 2017.
· Delivery Driver/Courier – Mr D’Arcy presents with skills and experience role of Delivery Driver/Courier, however the labour market research indicated that these roles require frequent lifting (at times greater than 9.6 kilograms) which is outside of Mr D’Arcy’s capacity as established both during the Functional Capacity Evaluation on 14 March 2017 and advised on his WorkCover Certificate of Capacity issued 30 January 2017.
· Yard Hand/Assistant (Scrap Metal) – Mr D’Arcy presents with transferable skills in customer service and demonstrates an ability to develop rapport with others. The assessor advises however that the labour market research indicated that these roles require excessive heavy lifting greater than 9.6 kilograms, and working in environments both outside in the sun and unventilated buildings (given the heat from operating machinery), as well as requiring employees to wear work books for safety purposes (with Mr D’Arcy reported that given his skin grafts this would result in tearing of the grafts around his legs). Following review of Mr D’Arcy’s self-reports during the Functional Capacity Evaluation on 14 March 2017 and that advised on his WorkCover Certificate of Capacity issued 30 January 2017, Mr D’Arcy is continued unsuitable to pursue this role.
· Maintenance/Handyperson – Mr D’Arcy presents with transferable skills in customer service and demonstrates an ability to develop rapport with others. The assessor advises however that the labour market research indicated that these roles require overhead reaching with weights, lifting (greater than 9.6 kilograms), working in environments both outside in the sun and unventilated buildings, as well as requiring employees to wear work boots for safety purposes (with Mr D’Arcy reported that given his skin grafts this would result in tearing of the grafts around his legs). Following review of Mr D’Arcy’s self-reports and capacity during the Functional Capacity Evaluation completed on 14 March 2017 and that advised on his WorkCover Certificate of Capacity issued 30 January 2017, Mr D’Arcy is continued unsuitable to pursue this role.
· General Clerk/Administration – Mr D’Arcy despite presenting with the functional capacity to pursue this position as per his Functional Capacity Evaluation completed on 14 March 2017 and advised on his WorkCover Certificate of Capacity issued 30 January 2017, Mr D’Arcy presents with limited past experience and limited computing skills as required by labour market contracts. Given this, Mr D’Arcy would require retraining in Administration/Computer skills to pursue this position.
35. The report concluded that no suitable vocational options were identified as appropriate for the plaintiff to pursue due to his limited functional capacity, other factors impacting his capacity that were unable to be assessed and due to his limited transferable skills.
Economic Loss
36. I adhere to what I said at [168] of my reasons of 3 August 2018. I also adhere to what I said at [169], but I will correct my error by omitting reference to an agreed residual earning capacity of $833.00 per week. Based upon the most recent Earning Capacity Assessment by Ms Srbinovska and Ms Gibbs I conclude that while the plaintiff has ongoing physical capacity for work, he is very likely to find it impossible to translate that capacity into an ability to earn income in full-time employment in a field for which he is suitable by way of personal abilities, education, training and experience. I accept that the plaintiff has been diligently attempting rehabilitation and a return to work since the accident, but with very limited success. His present position as a library courier for the Wollongong Council is a position which he would be able to undertake full-time, but it appears that a permanent position is not available. Whether such a position is likely to become permanently available is really a matter of speculation. In my reasons of 3 August 2018 at [169] I estimated the plaintiff’s earnings in his employment at Wollongong Council at $375.00 per week nett. I went on to say that I did not suggest that this was an accurate assessment of the plaintiff’s residual earning capacity, in that it was not a precise measurement of that capacity. It is, however, the best measurement available to the Court. I assess his residual earning capacity at $375.00 per week nett.
37. Correcting the second error (use of gross rather than nett figure for average weekly earnings), and applying the updated figures provided by the parties, I assess past economic loss as follows:
| Period | Weeks | Gross AWE | Nett AWE | 80% of nett AWE | Residual earning capacity | Nett loss per week | Total |
| 11.9.12 to 30.6.13 | 41.71 | $841.00 | $35,081.71 | ||||
| 1.7.13 to 30.6.14 | 52 | $981.07 | $51,015.64 | ||||
| 1.7.14 to 26.2.15 | 34.29 | $1,620.30 | $1,223.30 | $1,011.60 | $375.00 | $636.60 | $21,829.01 |
| 27.2.15 to 30.6.15 | 17.57 | $1,680.10 | $1,262.10 | $1,011.60 | $375.00 | $636.60 | $11,185.06 |
| 1.7.15 to 30.6.16 | 52.14 | $1,704.30 | $1,278.30 | $1,055.62 | $375.00 | $680.62 | $35,487.53 |
| 1.7.16 to 30.6.17 | 52 | $1,720.30 | $1,288.30 | $1,064 | $375.00 | $689.00 | $35,828.00 |
| 1.7.17 to 1.7.18 | 52 | $1,733.80 | $1,297.80 | $1,038.24 | $375.00 | $663.24 | $34,488.48 |
| 2.7.18 to 30.8.18 | 8.57 | $1,387.00 | $1,071.08 | $375.00 | $696.08 | $5,965.41 | |
| Total: | $230,880.84 |
38. The plaintiff’s past economic loss to 30 August 2018 is therefore $230,880.84.
39. Past superannuation on this figure, calculated at 11 per cent is $25,396.89.
40. Future economic loss is to be calculated on the basis of 80 per cent nett average weekly earnings, being $1,100.73, with a residual earning capacity of $375.00 per week, leaving a nett weekly loss of $725.73. Using a multiplier of 602.9 (for 17 years) this results in a nett future economic loss figure of $437,542.62. This must be reduced by 15 per cent on account of vicissitudes, leaving a figure of $371,911.23.
41. Future superannuation is to be allowed at 11.5 per cent of this figure, totalling $42,769.79.
42. Damages against Fuel-Sys are therefore assessed as follows:
Past economic loss $230,880.84
Past superannuation $25,396.89
Fox v Wood $32,354.00
Future economic loss $371,911.23
Future superannuation $42,769.79
TOTAL $703,312.75
43. From this sum, Fuel-Sys is entitled to deduct weekly compensation payments of $238,038.75, leaving a balance of $465,274.00.
44. I note that my putative assessment of damages regarding the claim against Caltex would need to be similarly amended to correct the identified errors.
Orders
45. The final orders in these proceedings are:
(a)there will be judgment for the plaintiff against the second defendant in the sum of $465,274.00;
(b)there will be judgment for the first defendant against the plaintiff;
(c)the notices of contribution between the defendants are dismissed with no order as to costs;
(d)unless an application for some different order is made within 14 days of the date of publication of these orders and reasons, the second defendant is to pay the plaintiff’s costs of the proceedings against it as agreed or assessed; and
(e)unless an application for some different order is made within 14 days of the date of publication of these orders and reasons, the plaintiff is to pay the first defendant’s costs of the proceedings against it as agreed or assessed.
46. I note with regard to costs between the first defendant and the plaintiff, an application for a special costs order has already been made by the first defendant, and no further application is necessary.
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Amendments
23 November 2018 Addition of paragraph [47]
At the request of the plaintiff and the second defendant, noting that they are in agreement as to the figures, his Honour makes the following orders under r 1613 of the Court Procedures Rules 2006 (ACT), amending his Honour’s judgment of 9 November 2018 ([2018] ACTSC 306):
a)the figure for past economic loss (at [42]) will be amended to $233,135.15;
b)the figure for past superannuation (at [42]) will be amended to $25,644.87;
c)the figure for total damages against Fuel-Sys, before deductions for workers compensation payments, (at [42]) will be amended to $705,815.04;
d)the figure for the total judgment sum for the plaintiff against the second defendant (at [43] and [45]) will be amended to $467,776.29.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 23 November 2018 |
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