Dallas v Denton Building - [2003] NSWSC 833

No judgment structure available for this case.

CITATION: Dallas v Denton Building [2003] NSWSC 833

HEARING DATE(S): 2, 3, 4, 5, 6, 10, 11 & 12 June 2003

JUDGMENT DATE:
11 September 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) Enter judgment that the defendant pay to the plaintiff the sum of $2,423,071.12; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS: Personal injury: assessment - paraplegic

LEGISLATION CITED: Workers' Compensation Act - ss 151K; 151M

CASES CITED: Diamond v Simpson (No 1) [2003] NSWCA 67
Jongen v CSR Ltd (1992) Aust Torts Reports 81-192
Malec v Hutton (1990) 169 CLR 638
State of NSW v Moss [2000] NSWCA 133
Sullivan v Gordon (1999) 47 NSWLR 319
Van Gervan v Fenton (1992) 175 CLR 327

PARTIES :

Shannon Keith Dallas
(Plaintiff)
P & M Denton Building Constructions Pty Ltd
(Defendant)

FILE NUMBER(S): SC 20232/2001

COUNSEL:
Mr A J Bartley SC with Mr J H Gibson
(Plaintiff)
Mr P Blacket SC with Mr D Priestley
(Defendant)

SOLICITORS:
Mr Ian Chipchase
Stacks
(Plaintiff)
Mr Andrew Kemp
Holman Webb
(Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 11 SEPTEMBER 2003
20232/2001 - SHANNON KEITH DALLAS v

P & M DENTON BUILDING
CONSTRUCTIONS PTY LTD

JUDGMENT (Personal injury: assessment - paraplegic)

1 MASTER: The plaintiff seeks damages for personal injuries sustained in an accident which occurred on 31 May 2000. Whilst working on the construction of a roof he fell approximately 4.5 metres to the ground and was rendered a paraplegic. The defendant is P & M Denton Building Constructions Pty Ltd (Denton Building) who was the occupier of Lot 5 Honeyeater Crescent, Blaxland (the premises) and had the care, control and management of the roofing work being undertaken on the premises and was also the plaintiff’s employer. The defendant has admitted liability. Contributory negligence is not in issue. On the first day of the hearing, the cross claims were settled.

Background

2 The plaintiff was born on 16 August 1977 in Sydney and grew up in the Hills area of Sydney. He was aged 22 years when this catastrophic accident occurred. He is now 26 years old. The plaintiff’s parents separated when he was three years of age. The plaintiff resided with his mother but maintained contact with his father. His family life was not a happy one. He described himself as “an angry young man” at the age of 15 years, but then found religion. Religion turned his life around.

3 Throughout high school the plaintiff played basketball. He was 6’ 1” and a bit and was the team’s centre. His team were the State champions. He played soccer for six years and sat on the New South Wales bench for two games in the junior competition. He played golf with his friends every fortnight (t 93.1-20). During the plaintiff’s school years, he demonstrated admirable athletic prowess. It was at this time that the plaintiff developed a passion for surfing and from time to time he chose to pursue this passion over the requirement to attend school on a daily basis. Surfing ruled his life.

4 The plaintiff gave evidence that during his youth he was known as “The Wildfoot”. His mother belonged to Parents Without Partners and various bushwalking associations. He would quite often accompany her on bushwalks such as along the North Shore trail which took you from North Head around to Manly. He would go camping and bushwalking with friends in a national park near Goulburn. The plaintiff’s father lives near Katoomba. There is a huge network of trails up through the bush that the plaintiff has ridden and walked along, and taken dates (t 113.32-50).

5 The plaintiff’s father is, and has always been, employed as a carpenter. The plaintiff’s mother has a chequered career history but essentially it has revolved mainly around the building and development areas. When the plaintiff was growing up, his mother cornered the market in developing dual occupancy sites in the Hills area. She later bought a chain of hair dressing salons in the Wollongong area, but this business went into liquidation. Unfortunately, the plaintiff was named as a director, although he was not involved in the operation of the business, this affected his credit rating.

6 In 1995, the plaintiff completed his Higher School Certificate at Muirfield High School. The plaintiff did well in the subjects he liked particularly design and technology and biology. As part of the assessment for design and technology he designed a computer desk and developed a marketing plan for it (t 5). The plaintiff did not do as well in the subjects he did not like, such as English. After he left school, the plaintiff worked for his mother’s company, Dallas Brooks Pty Limited as a carpenter. As she could not offer him the carpentry skills he required, he sought an apprenticeship elsewhere.

7 In October 1997, the plaintiff commenced his carpentry apprenticeship with P & M Denton Building Constructions Pty Limited. He worked four sometimes five days per week and attended TAFE one day per week for the whole four years of his apprenticeship. During that time, the plaintiff estimates that he was involved in erecting framework for over 100 houses. He helped construct two large houses for Mr Denton personally. About two weeks prior to the accident, the plaintiff completed his carpentry apprenticeship. By this time he had already commenced TAFE studies in order to obtain his builder’s certificate. Hence he was working six days per week and attending TAFE after work three nights per week, plus doing assignments.

8 The plaintiff was in excellent health and physically fit. The plaintiff’s passion for surfing continued unabated. He surfed nearly every day before work and on weekends. The only pre-accident injuries that the plaintiff suffered were a fractured leg as a child, a subluxation of the left shoulder at 21 years without permanent sequelae, and various lacerations to his fingers. At the time of the accident, the plaintiff had a steady girlfriend but that relationship ceased after his accident.

9 After the plaintiff’s mother’s business collapsed she set about updating her education in the building trade. Over the last few years she has established a successful business in Terrigal. She acts as an independent certifier of plans (mainly swimming pools) which are to be submitted to Council. The plaintiff is currently residing with his mother in her house at Erina. It is a newly (not yet) completed two storey house. The plaintiff’s bedroom and bathroom, which have been modified, are located on the ground floor. There is a lift whereby the plaintiff can gain access to the kitchen located upstairs. Not surprisingly, the plaintiff would prefer to be independent and reside in his own accommodation.

The accident

10 On 31 May 2000 the plaintiff was on site erecting the roof on what was to be a residential house. Also present when the accident occurred, were his boss Mr Denton and another apprentice carpenter. The plaintiff was on the roof structure, erecting the roof. Mr Denton was standing on the ground passing the wooden beams up to the plaintiff. The plaintiff was erecting the truncated truss, and was positioned on a piece of timber at the apex of the roof structure, trying to align a beam. His feet were 4.5 to 5 metres above the concrete slab (t 17). He was applying pressure to the hip alignment when the roof structure collapsed causing him to fall, landing on the concrete slab below. There is no dispute that this fall caused the plaintiff’s paraplegia. As previously stated, liability has been admitted and contributory negligence was not pressed, so the issues to be determined relate to the assessment of damages, which are considered below.

11 During the hearing, to assist the court in the understanding of how the accident occurred, the plaintiff constructed a model of a roof with trusses, truncated and other. The court was duly impressed not only with the skill of the physical model that the plaintiff had made, but also the manner in which he articulated how the accident occurred.

Damages

12 The plaintiff is a remarkable and highly motivated young man who has been actively involved in his rehabilitation. Some of the components of damage have been agreed between the parties. This judgment focuses on those components where there is a divergence of views between the parties. A schedule of damages appears at the end of this judgment. The assessment is made in accordance with the Workers Compensation Act 1987. The main areas of dispute are future economic loss, technology systems, additional holiday costs and appliances.

Non economic loss

13 The parties agree that non economic loss should be assessed as a most serious case at 100%. This equates to $244,250.00. I agree with this assessment. Pursuant to the Workers’ Compensation Act s 151M, the plaintiff is not entitled to interest on non economic loss.

Past economic loss

14 The parties agree that past economic loss should be assessed at $492.00 to $570.00 per week net from 1 June 2000 to 2 June 2003. This equates to $88,246.00. I agree with this assessment. To bring this amount up to judgment date, I allow a further 9 weeks at $570 = $5,130. Thus past economic loss is $88,246.00 plus $5,130.00, which equates to $93,376.00.

Interest on past economic loss

15 The parties have agreed that interest on past economic loss should be assessed at $3,178.00. This amount is reasonable and allowed.

Fox v Wood

16 The Fox v Wood component has been agreed at $5,807.00.

Past loss of employer’s superannuation contributions

17 The parties have agreed that at 8% of gross past loss of superannuation contributions amount to $8,471.00. I allow this amount.

Future economic loss

18 The plaintiff makes a claim for future economic loss on the basis that for the next five years he would have worked as a sub-contract carpenter. The rate of $36.50 per hour is the current tender rate for carpenters as published by Cordell’s Building Information Service Cost Guide (Ex E). After deduction of tax, with no allowance for rebates, the plaintiff’s nett weekly earnings are calculated at $1,033.16. The amount claimed for future economic loss, after allowing 15% for vicissitudes, amounts to the sum of $805,736.00.

19 The defendant submitted that the plaintiff’s future economic loss should be calculated slightly differently. The defendant relied on the report of Deloitte Touche Tohmatsu dated 14 March 2002 (Ex 8). In respect of potential future loss, this report assumed that the plaintiff’s pre-accident earnings of $644.98 gross per week were accurate. When that sum is adjusted by the discounted rate of 3% the report assessed a total potential future loss of $450,833.00. This was in contrast to the economic assessment report of 20 August 2001 prepared by Mr Paul senior forensic accountant with Workcase Pty Ltd on behalf of the plaintiff. Mr Paul calculated a total potential future loss figure of $520,637.00. This figure represents the report’s estimation of the sum of the plaintiff’s future loss of earnings ($436,102.00) and future loss of superannuation ($84,535.00), but it did not make an allowance for vicissitudes. If this adjustment is made Mr Paul’s calculations for future economic loss amount to $370,686.70.

20 The defendant says that the nett weekly amount that the plaintiff would receive as a sub-contractor would be subject to deductions for tools, petrol, car expenses, depreciation on tools and insurance premiums, such as public liability, professional negligence and accident insurance and estimated that these weekly deductions would amount to $400.00. A portion of these expenses would be tax deductible. The defendant also submitted that while the plaintiff may have worked six days per week for a number of years, so as to establish his business, that would not always be the case particularly in future years when he had family commitments.

21 The approach that I should adopt in relation to future economic loss has been set out in State of NSW v Moss [2000] NSWCA 133. In Moss Heydon JA (as he then was) referred to two principles, the first being that it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury. The second is that the failure to call such evidence does not necessarily result in selection of only a nil or nominal figure as damages for impaired earning capacity.

22 In respect to the first principle, Heydon JA noted, at 69, by reference to Jongen v CSR Ltd (1992) Aust Torts Reports 81-192, Anderson J at 61, 713, that over-elaborate evidence may be unhelpful and that the task of assessing damages in personal injury cases should be kept as simple as possible. In respect to the second principle, His Honour noted that a failure to provide a complete evidentiary assessment of what the plaintiff would have been likely to earn but for the injury would not necessarily mean that a plaintiff’s case would not survive appeal by a defendant. This is because damages for reduced economic capacity, as part of general damages, are difficult to assess and there is a wide discretion in assessing them. Moreover, the issue does not turn on what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. As His Honour noted, evaluation is an exercise in estimation of possibilities, not proof of probabilities. After reviewing the authorities, Heydon JA further concluded at 87:

“where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task...The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award in being made, since what is involved is not the finding of historical facts on the balance of probabilities, but the assessment of the value of chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.”

23 The plaintiff gave evidence that he intended to continue working with Mr Denton for a while. However, Mr Denton had advised the plaintiff that he intended to diversify and pursue other business endeavours not in the building trade. The plaintiff and Mr Denton had discussed the Provincial contract (the Provincial contract) being taken over by the plaintiff. As a result of his accident the plaintiff lost the opportunity to take over this contract. The Provincial contract was subsequently awarded to another of Mr Denton’s employees who was at the time of the accident was also an apprentice. Further, it was also the plaintiff’s intention to follow in Mr Denton’s footsteps by building a prestigious home to reside in for a period of three months to a year and then on sell it for a profit. He intended to repeat this process a number of times. The houses the plaintiff intended to build were to have been prestigious custom built ones so as to differentiate them from a project home market, and hence make them more saleable to a more discerning and wealthier homebuyer.

24 The plaintiff gave evidence that had he not been injured he would have worked as a carpenter on a sub-contractor basis for the next five years and then as a builder (t 30.10-20). During this period, the plaintiff (as Mr Denton had done previously) planned to build his own house with the help of his friends as stated above. To keep the labour costs at a minimum, the plaintiff’s friends, who are in other trades such as plumbing, would have assisted him in the construction of the house. They would have performed most of the work on the house and in return he would have assisted them in the building of their houses. As a young man, the plaintiff had planned to take a year off and travel with a friend around Australia in a Kombi for some months or until the money ran out. He also had planned in the near future to backpack through the northern hemisphere for about 12 months. While he was away, the plaintiff planned to rent his property to tenants so income was coming in to pay the mortgage. The plaintiff planned, when he returned to Australia as previously stated, to sell the house and build another to live in for a while, sell it and repeat this process a few times.

25 Mr Michael Bartlett National Manager of Cordell Building Information Services gave evidence that the average Sydney metropolitan rates for builders for the months of December, January and February averaged at $36.50 per hour. The lowest was $35.00 and the highest was $40.00 and there was a cluster around the $35.00/$36.00 mark. As a self employed sub-contract carpenter on $36.50, the plaintiff would not get holiday pay, sick leave, long service (t 246.50) nor would he receive superannuation.

26 While it is difficult to be precise, particularly as the plaintiff had only just started his working life when the accident occurred, it is my view that it is more probable than not, that the plaintiff would have achieved his goals. The plaintiff impressed the court as being a man of intellect and one that possessed good practical skills and knowledge of carpentry and a high degree of motivation. He wanted to be financially comfortable and it was important to him to establish a happy family life. Even though he was only 22 years of age when the accident occurred, he had by that time gained his apprenticeship; he worked hard and completed his studies. He had already taken active steps in order to achieve his builder’s licence. He was fortunate enough at such a young age to have found his niche in his working life. Had the accident not occurred the plaintiff would have obtained his building qualifications and become a sub-contractor for a number of years. During this time he would have established contacts, which would have provided work for him when he ultimately became a builder.

27 Thus, had the accident not occurred, it is my view that it is more probable than not that the plaintiff would have worked as a carpenter on a subcontract basis for five years and then as a builder. The plaintiff may have taken time off from work to travel around Australia and overseas. He may not have continued to work six days per week, but offset against these possibilities are that he would have built homes for sale and would have secured the Provincial contract. As previously stated the court cannot be precise, but doing the best I can, the money expended on travel and the reduction incurred would have been replenished by the building, renting and on selling of houses. Further, the plaintiff would have structured his business so that when he was nearing the retirement age of 65 years, he would have had employees to carry out the physical work and he would have taken on more of a supervisory role

28 The plaintiff’s calculation of future economic loss is on the basis that a subcontractor carpenter earns $36.50 per hour gross for 48 hours per week, 48 weeks per year, less 5% for wet weather days, this equates to average weekly earnings of $1,536.37 per week gross, which converts to $1,033.16 nett. I accept that the plaintiff would have earned $36.50 per hour gross and worked 48 hours per week, 48 weeks per year. Some weeks he may have worked more than 48 hours when very busy, sometimes less. Calculation on the basis of a 48 hour week is reasonable. The allowance of 5% for wet weather is reasonable. However, I agree with the defendant’s submission that an amount representing deductions for the replacement and repair of tools, petrol, car expenses and appropriate insurances such as public liability and accident and sickness policies would be incurred in running the business and some of these, if not all, would be tax deductible. Thus, even though the plaintiff would most likely conduct his business through a company, as I have no evidence as to the appropriate tax regime for the business I will treat the plaintiff as earning $1,536.37 gross per week and paying tax on that amount. Thus, I allow the plaintiff’s future nett weekly earning at $1,536.37 per week gross which is $1,033.16 nett, multiplier 917.5 less 15% for vicissitudes which equates to $805,736.00.

Residual earning capacity

29 The plaintiff’s counsel submitted that the reality is that the plaintiff would never be in receipt of remunerative employment at any time in the future so his future economic loss should be assessed as nil. The defendant submitted that the plaintiff will be able to find work in drafting or building related type work on a full time basis until he reach the age of 45 years and then on a part time basis until 55 years. According to the defendant, the plaintiff would be able to re-enter the work force when he completed his TAFE course. The defendant adopted the opinion of Associate Professor Jones (referred to below).

30 Associate Professor Richard Jones, a senior specialist of rehabilitation medicine (report dated 6 June 2001) and a very experienced practitioner, expressed the opinion that the plaintiff has the potential to work full time till the age of 45 years, reducing to half time to the age of 55 years at which time he would retire from the paid workforce. During cross examination, Associate Professor Jones acknowledged that the plaintiff is a highly motivated young man who has directed his efforts to-date to sports and is very successful. It was his view that the plaintiff will ultimately obtain employment. Associate Professor Jones’ evidence was that 5 days a week, 7 hours per day would be appropriate, but “the plaintiff would not last at it forever”. According to Associate Professor Jones, if the plaintiff was to work it would be a big demand on him, so he would need assistance in his home as it would be time consuming getting himself ready for work. Further, the plaintiff would need time off work for check ups and urological management. Associate Professor Jones concluded that full time employment is achievable but the plaintiff would need an empathetic employer.

31 The occupational therapist employed by Accent Rehabilitation Service, Mr David Scott Bacon, who assisted the plaintiff in relation to rehabilitation, painted a somewhat bleaker picture. At the outset, Mr Bacon reported that one of the vocational goals was for the plaintiff to gain the necessary qualifications and subsequent employment as a CAD operator in the building industry (Civil Engineering Technical Officer). The main tasks of CAD operators are the preparation of diagrams, drawings, plans and designs for construction work under the direction of civil engineers and engineering technologists, interpretation of work assignment instructions, applying appropriate procedures and selecting of equipment, analysing data and carrying out computations, estimating material costs and ensuring that finished works are within specifications, regulations and contract provisions, and the inspecting of civil engineering works and organising and supervising maintenance and repair work.

32 Mr Sanderson, the rehabilitation psychologist with Accent, held the view that the plaintiff needed to attain diploma level studies and to finish his building subjects to improve his employability for the following reasons: firstly, according to Australian Federal government statistics, the potential for new jobs in the area of civil engineering technical support is limited; secondly, employment for civil engineering associate professionals is expected to decline despite employment rising slightly over the last five years and this occupation is employed mainly in the property and business services industry; and thirdly, job turnover for civil engineering associate professionals is below average, but with no employment growth expected job turnover will provide all the job openings.

33 Mr Bacon gave evidence that from his experience (of about 18 months) he had not dealt with any person in a wheelchair that had resumed paid employment (t 251.47). Drawing on his training and professional knowledge, Mr Bacon said that the chances of people in wheelchairs going back into paid employment are very low (t 252.22). He said that when a person in a wheelchair sought employment with an employer (other than their pre-injury employer) it was difficult for them to convince that employer that they were capable of doing the job (t 252.50-56). When asked, Mr Bacon also gave evidence that when the plaintiff’s rehabilitation was first assigned to Accent, he was hopeful that the plaintiff could return to paid employment. He then stated that even if he had the plaintiff for another five years as a client, it would be extremely difficult to find the plaintiff paid employment without a family contact or something else similar (t 258.15). He viewed self employment as being more flexible for a person with a disability (t 264.15). As previously stated, Mr Bacon gave a very bleak outlook in relation to the plaintiff’s future employment prospects.

34 The plaintiff considered that his future employment probably involved some sort of drafting if he was able to set up his own drafting business and advertise himself and try to find work that did not involve site work. But obviously his disability limited his field of employment (t 122 38-46). The plaintiff stated that he has a friend who teaches CAD applications at Sydney University. He is in a wheelchair and only works part time, two days a week (t 59.1-10). The plaintiff’s evidence was that completing his Builders Certificate was not something that he would do immediately. It was something that he would look at after finishing his skiing interests if he was unable to obtain some sort of coaching position, or helping people with disabilities. This is something that interests him a lot more these days and shows a lot more worth than just a job (t 122.2-10).

35 The plaintiff gave evidence that if he were to work 8 hours per day, five days per week as a junior in a design and drafting area at, say, North Sydney it would affect his health mentally and would restrict his physical development ability. At the end of the day his mental capacity to stay focused for long periods of time would be impaired. The plaintiff gave evidence that prior to the accident he had no difficulties with stamina in terms of keeping up a full days work.

36 In order to survive, the plaintiff says that if he had to he would work 8 hours per day, five days per week, but working 40 hours would take away from his mental and physical health (t 125.10-55). At present, the plaintiff spends two hours per day on physical maintenance. He gave evidence that since the accident he tends to sleep 10 to 12 hours a day and has copped a lot of flak from his friends and family because prior to the accident he never slept in. He enjoyed the mornings (t 126.15-50). Being realistic, the plaintiff thought that he would be able to work three days a week; working full hours with a decent break in the middle (t 128.50).

37 The plaintiff also thought that he might be able to do some kind of work from home. Possibly drawing. He would have to go back to TAFE and complete his Clerk of Works, which would enable him to do drafting. The plaintiff said that he could draw up the plans for people wishing to renovate but this would mean that the site would have to be accessible in order for him to go to it and measure up for the extensions. The plaintiff thought that he might be able to do consultation work, although he has not had any experience in building. If he acquired the certificate he would be able to consult from an academic area. But, as the plaintiff said in evidence, building is all about being there, it is construction and he had only been a tradesman for two weeks prior to the accident (t 58.35-55). The evidence of Associate Professor Jones and Mr Bartlett is that the plaintiff would be unable to carry out site work. I accept that not being able to carry out site inspections would severely limit the plaintiff’s prospects of gaining employment in this building field.

38 Since the accident, the plaintiff has done some work from home for his mother (t 33.4-19). In December 2001 to February 2002, while his mother was overseas, he handled enquiries from business clients concerning the progress of their building plans with council (t 67–68). The plaintiff also did some design work of decking and a front fence for an already existing house for one of his mother’s clients (t 68–69). The plaintiff was paid approximately $350 for each drawing but has not done any more since (t 69-70).

39 The plaintiff was six months into his building certificate course at the time of the accident, but he had not completed it (t 33.50). At the beginning of 2001, six months after the accident, the plaintiff attended TAFE and talked with the teachers and a disabled officer about his future prospects based on his past experience. It was suggested by the TAFE teachers that he commence a course which would give him computer skills enabling him to draw and produce plans on the computer. During the first six months of 2001 the plaintiff attempted to complete six modules he dropped three and completed three. The plaintiff has completed one module of the Building Certificate; the design module. What the plaintiff would have liked to do was plans for housing construction (t 34.50-55).

40 Accent made arrangements for the plaintiff to attend a drafting diploma course at TAFE. The plaintiff did not complete this course as he lost focus. He had come out of hospital and went straight back into studying. He began having incontinence problems and became distracted (t 44.47-54). The plaintiff was six months off completing this course. At first he thought it would involve more architectural design, but it was based on 3D modelling concepts involving clocks and mobile phones (t 45.27.34). The plaintiff completed one module of the building certificate and one module in the drafting diploma at the same time (t 48 35-45).

41 Prior to the accident the plaintiff did not snow ski. He is now an elite athlete in skiing. After the accident, the plaintiff took up down hill skiing (t 43.55). In 2001 (Australian ski season), the plaintiff was taken skiing by a girlfriend and was identified by a disabled skier on the hill, who inquired about the plaintiff who he was. The plaintiff was then asked to go back to one of the talent identification camps. At this camp the plaintiff did really well. As a result the plaintiff was offered, as an option, training by Disabled Winter Sport Australia at a training camp in Canada which he funded himself. In early 2002, the plaintiff trained in Canada for two months with the Australian coach (t 92.32-44). In 2003, the plaintiff competed in the Canadian National Championships and won two silver medals (t 91.54). As a result of his success, the plaintiff is now being sponsored by AIS and has qualified for the Australian national disabled ski team and will receive 60% of his training costs (t 55.50). As part of the Australian team the plaintiff intends to compete in the World Championships next year and in the Para Olympics in Italy in 2006 followed by Vancouver in 2010. As a competition skier the plaintiff would be expected to compete in the overseas circuits during the northern hemisphere winters. As a competitive skier it is his future goal to represent Australia in the Winter Para Olympics (t 92.7-45).

42 The defendant’s approach to the plaintiff’s pursuit of skiing is that it is one that the plaintiff chose to embark upon; and if the plaintiff’s capacity to work on a full time basis has been postponed for a few years while he develops his skiing career, the defendant should not be liable to compensate the plaintiff for the loss of earnings during this period.

43 The plaintiff was asked if he had deferred his building certificate and business career in order to develop his sporting prowess. The plaintiff stated that it was his accident that caused him to defer his study and as he was in hospital he was unable to attend TAFE. The plaintiff said that he deferred his drafting not because he wanted to ski, but because he needed mental space to get over his accident (t 162.32-55).

44 There is a range of possible outcomes when assessing the plaintiff’s residual earning capacity. It is my view that in order for the plaintiff to teach or coach skiing to the disabled he has to firstly establish himself as a capable and experienced skier. This will take time. It is due to the accident that the plaintiff has been forced to retrain. It is difficult to predict with any certainty what his future working life will be. He may complete his diploma and work in the design field. However, in the near future on the balance of probabilities, it is more likely that he will focus on ski instructing or counselling areas as this is where the plaintiff’s interests lie. The plaintiff, quite reasonably, said that if he could not coach skiing or be involved in counselling, he could work from home doing something such as drafting. I agree with the plaintiff’s assessment that he needed to have taken some time out after the accident to come to terms both mentally and physically with his disability. The defendant has agreed to past economic loss to date of trial (some three years after the accident).

45 It is my view that the defendant is obliged to compensate the plaintiff for the next two years while he obtains his skiing experience or returns to study. The plaintiff’s skiing career depends on him not suffering any future injuries, so he may embark, by default, on a drafting career if he becomes injured. Taking this into account I allow for a period of two years for the plaintiff to re-train. During this time the plaintiff will not be in receipt of remunerative employment. As previously stated, the plaintiff has the ability to explain concepts so that they can be readily understood by others and this is a pre-requisite should he decide to teach or coach, be it skiing, counselling or drafting.

46 After two years, it is my view that the plaintiff will be capable of working three days per week on a full time basis. The days off would allow him to attend medical appointments and maintain his physical and mental health. It is possible that the plaintiff’s work could be spread over 5 days per week for lesser hours. This would allow him to attend medical appointments and maintain his physical fitness. Alternatively, he could work 3 days per week for longer hours. This view is largely in accord with the views of Associate Professor Jones. However, even if the plaintiff is capable of working three days per week until 55 years, is it likely he will find an employer? According to Mr Bacon, who was the rehabilitation officer for the plaintiff, it is not.

47 The plaintiff is not the type of person to be idle. He is highly motivated. He may choose to do some voluntary work. It is more likely than not, that he will obtain some paid remuneration in the coaching or teaching fields or possibly drafting. It is possible the plaintiff will undertake projects in these fields which would allow him to work from home. Even if he were to embark on a ski coaching career this most likely would not last until he was 55 years of age. It is possible that the plaintiff may obtain a regular full time 3 day per week job but I have come to the view that it is more likely than not that the plaintiff will have periods of work on a 3 day basis and other periods where he does not.

48 To allow for these matters, I assess that until the plaintiff reaches the age of 55 years, he will have a residual earning capacity of $220.00 per week nett from 11 September 2005. I assess the plaintiff’s future loss of earnings at $1,033.16 nett x 104 weeks = $107,448.64. From 11 September 2004 until 16 August 2032 (the plaintiff will then be 55 years of age), I calculate the plaintiff’s residual earning capacity for 29 years in the sum of $813.16 nett per week. From the age of 55 to 65 years, the plaintiff’s earning capacity is assessed at nil. The plaintiff’s future economic loss is to be calculated by the parties in accordance with this methodology.

Future loss of superannuation benefits

49 As I have decided that the plaintiff would have worked as a subcontractor and then a builder, he would not be paid superannuation. Hence, no allowance is made for future loss of superannuation benefits.

Out of pocket expenses (and Medicare)

50 All medical and associated expenses to date have been paid by the defendant’s workers’ compensation insurer. The parties are agreed that $172,128.00 paid by the workers’ compensation insurer and $918.00 paid by HIC is appropriate. The total allowed for these items is $173,046.00.

Past cost of handyman

51 The plaintiff claims $18.00 per hour at 1.5 hours per week from 27 October 2000 to date, which equates to $3,645.00. The parties have agreed on this amount. I allow the sum of $3,645.00.

Past gratuitous assistance

52 The plaintiff has claimed $12,240.00 for past domestic assistance from 27 October 2000 to date at an average of 5 hours per week @ $18.00 per hour = $12,240.00. The defendant has allowed 3 hours per week @ $18.00 per hour = $8,424.00 (t 102.50).

53 To determine the applicable amount to be awarded for home care services (s 151K), it has been identified which services the plaintiff would reasonably need, resultant from the defendant’s wrong. Or expressed another way, the plaintiff is to be compensated for the loss of the plaintiff’s capacity to look after himself, which was caused by the accident – see Van Gervan v Fenton (1992) 175 CLR 327 – (s 151K(33)). According to s 151K(3), no compensation is to be awarded if these services would have been provided to the plaintiff had he not been injured. Sullivan v Gordon (1999) 47 NSWLR 319 reaffirmed this principle.

54 When the plaintiff was discharged from hospital he resided with friends in a house at Northmead. While ramps were installed, the house was not otherwise modified for wheelchair needs. By February 2001, the plaintiff was receiving three hours domestic care per week The plaintiff’s housemates assisted him with tasks around the house. By arrangement, the plaintiff’s housemates assisted him in day-to-day matters around the house in return for a cleaner undertaking the vacuuming and cleaning of the house. According to Mr Bacon, had the plaintiff not had the assistance of his housemates, he would have required 12 hours of domestic care per week.

55 I allow the plaintiff’s claim, which is claimed on average of 5 hours per week as reasonable. I allow the sum of $12,240.00.

Life expectancy

56 To make the calculations for the subsequent heads of damages, it is necessary to determine the plaintiff’s life expectancy. The plaintiff submitted that a deduction for diminished life expectancy should be made at 10%. The defendant submitted that a deduction of 15% should be made. The plaintiff’s counsel has explained to the plaintiff why the court is obliged to determine this issue.

57 Associate Professor Millard, who is an Associate Professor of Urology and has been a practising urologist for about 30 years, gave evidence. Since 1978, he has specialised in the management of spinal injuries and their urological consequences (t 193). Risks to life expectancy come from two different sources, the effect on kidneys and recurrent infections. If the plaintiff manages his bladder by intermittent self-catheterisation and provided he has a good technique he can expect to get about 1.3 to 1.4 infections per year but these are treatable with antibiotics. Currently the plaintiff has an indwelling urethral catheter from which it can be expected that he will suffer from 2.6 to 3.5 infections per year. The plaintiff at present prefers an indwelling catheter because it better suits his needs. He finds it easier to use when he is travelling as he has less problems with leakage. However, he will change to intermittent self-catheterisation in the near future.

58 From a urological point of view, Dr Millard opined that on the balance of probabilities, provided the plaintiff looks after his physical wellbeing (t 202) and does not contract any untreatable infections he will have a normal life expectancy. With proper medical care, regular checkups and compliance with medical advice, the plaintiff should have normal life expectancy. However, failure to attend to these requirements means that the plaintiff’s life expectancy might be reduced by as much as 15% (report dated 30 May 2003).

59 Associate Professor Jones (report 19 July 2001) stated that the plaintiff’s prognosis for life is diminished by approximately 10 to 15%. Associate Professor Jones is a very experienced rehabilitation medical practitioner who has been practising in the field of spinal injuries for over 35 years. When assessing the 10 to 15% Associate Professor Jones took into account the following facts. He found the plaintiff to be a highly motivated person and considered the risks that the plaintiff would have with urinary tract infections, without any consideration of severe nephropathy, kidney disease which is treatable, also taking into account the other additional changes that happen in spinal cord injuries with vascular and bowel problems and the risks of sepsis, Associate Professor Jones assessed the plaintiff as having a reduced life expectancy of 10 to 15% (t 214.34-46).

60 Hence, I assess the plaintiff’s reduced life expectancy at 10% as the plaintiff is well motivated, complies with medical advice and is physically fit. Dr Millard anticipates that the plaintiff’s urinary problems can be treated and his condition improved. Using the litigation tables, life expectancy is 47 years. The multiplier is 961.5.

Future care and assistance

(i) Handyman

61 Associate Professor Jones (report 19 July 2001) is of the view that the plaintiff has work potential but would require domestic assistance if he is to work full time. According to Associate professor Jones, the plaintiff would need home handyman assistance of about three hours per month. The plaintiff has claimed 1.5 hours per week for handyman services at $45.00 per week. This equates to $44,500.00. The defendant has allowed 1 hour per week at $30.00 per hour x 944.5 = $28,335.00 (I think the calculation in the defendant’s schedule is incorrect). Ms Oates (report 5 July 2001) recommended that the plaintiff would require gardening and handyman assistance for one hour weekly. It is my view that as it is most likely that the plaintiff will be living in a house with gardens and a lawn the sum of one hour per month is reasonable. Using the correct multiplier I allow the sum of 30 x 961.50 = $28,845.00

(ii) Future Domestic assistance

62 The plaintiff submitted that assuming he remains single to the age of 36 years he would require domestic assistance for 12 hours per week for 10 years @ $26.28 per hour = $315.36 per week x 412.9 = $130,212.00. The plaintiff further submitted that assuming he marries in 10 years time, aged 36 years, he would require domestic assistance for 3 hours per week. The defendant has allowed 3 hours per week at the rate of $23.00 per hour from now until the plaintiff reaches 60 years of age. The difference in the hourly rate comes about because the plaintiff has calculated a portion of the domestic care at weekend rates. It is not necessary that these services be provided at weekend rates so I will opt for the lower rate of $23.00 per hour.

63 Had the accident not occurred, the plaintiff would not have had the need for domestic services. He was fully self-sufficient. Mr Bacon the rehabilitation officer gave evidence that he based his assessment of domestic care on a shared house basis where the plaintiff does his share of the chores. Mr Bacon assessed that the plaintiff would require 12 hours of domestic care per week. He took into account that the plaintiff would do some cooking and laundry tasks (t 262). In this assessment Mr Bacon included tasks that the plaintiff could not do such as vacuuming, mopping of floors, cleaning of bathrooms, mowing lawns and taking leaves from the gutters and tasks like that (t 263).

64 Associate Professor Jones stated that while the plaintiff is independent in his personal care and some activities of daily living, if he was to work full time he would then require two or three hours per week of domestic assistance to ensure that his household chores are performed and to allow maximum potential for full employment. It is Associate Professor Jones’ view that spring cleaning is necessary and some allowance should be made for this.

65 Like Associate Professor Jones, Ms MacMaster, a consultant occupational therapist (report 26 March 2001), stated that the plaintiff will require ongoing assistance with heavy domestic tasks. Ms MacMaster stated that it was reasonable and necessary to provide the plaintiff with assistance of 3 hours weekly for domestic assistance for cleaning and heavy duties. She stated that assistance would also be required with any relocation in terms of housing and some allowance should be made for this. It is my view that 3 hours per week for domestic care from now until the plaintiff is aged 60 years is reasonable and I allow this amount. The calculation is 3 hours x $23 per hour = $69.00 per week x 961.50 = $66,343.50.

66 Ms MacMaster stated that the plaintiff would need to have increased domestic care for periods of holidays or vacation where the plaintiff currently relies on friends to assist him with luggage and carrying of his equipment. Ms MacMaster estimated that the plaintiff would require extra assistance during vacation periods. Cost consideration for assistance with luggage carrying and organisation of equipment when travelling was estimated to involve someone to be present to assist him four 4 weeks annually. She also stated that consideration should be given to enable the plaintiff to have assistance for occasional weekends away camping and this was a normal pre-injury leisure pursuit. She estimated that the assistance of someone for 6 weekends annually was reasonable additional to the 4 week period. The plaintiff has claimed an additional four weeks and six weekends per annum; 4 weeks @ $26.28 per hour x 6 hours per day = $83,962.00 and 6 weekends $31.99 per hour x 12 hours = $43,802.00. In respect of the first amount, the defendant has made an allowance of $42,000.00 and in respect of the second amount, the defendant has made an allowance of $22,000.00.

67 The plaintiff needs assistance with his luggage and both to and from the airport and moving it around the airport itself and at his accommodation. The plaintiff has travelled to Fiji, and while there one of the plaintiff’s best mates carried the plaintiff up 22 flights of stairs (t 149.40). He has travelled on the plane to Vancouver and flown economy class to Queensland (t 150). He has travelled with friends and by himself. It is my view that the plaintiff can travel alone and does not require a carer. But he does require assistance with his baggage at the airports and while staying at accommodation (t 219.40-50). It is my view that the defendant’s assessment is reasonable. Ms MacMaster’s rates are calculated on the basis that the plaintiff requires assistance for the whole of his vacation. This is not so. The plaintiff needs some assistance with baggage handling. He may need assistance if he went camping. In relation to cleaning, some provision should be made for the “spring cleaning”. I allow the sums of $45,000.00 and $25,000.00 (adjusted to $70,000.00 to reflect the finding on life expectancy and spring cleaning).

68 In the latter ten years of the plaintiff’s life, Associate Professor Jones was of the opinion that the plaintiff may require an hour of personal care assistance per day. The parties have agreed to an additional one hour of care after 60 years of age. The defendant has allowed the sum of $12,630.00 for an additional hour per day from the age of 60 years. The parties have agreed to this amount, which is reasonable. I allow the sum of $12,630.00.

69 I assess the total for future domestic care at $148,973.50.

Vehicle costs to date

70 The parties have agreed that $8,000.00 is an appropriate sum for this component. I allow this amount.

Future additional transport costs

71 The parties have agreed that $50,000.00 is an appropriate sum for this component. I allow this amount.

Technology system

72 The plaintiff has claimed $19,409.00 for a technology system, plus $153,507.00 for replacement system and maintenance in the sum of $29,686.00. The defendant has made no allowance for a computer system, as it claims the plaintiff already has a computer and the necessary software. However, the defendant has made an allowance of $37,780.00 for a replacement and $10,000.00 for maintenance.

73 The plaintiff attended a technological high school, which advocated the use of computers. In carpentry, he studied a module on computers where he learnt how to set up a spreadsheet to do tax (t 47.50). While it was not a priority for the plaintiff to have a computer while he was completing his apprenticeship, it is my view that within a few years he would have purchased one, particularly as he was already familiar with its uses from his high school days. He would have needed a computer to run his sub-contracting business and he would have been obliged to update it from time to time. He would have required access to the internet and e-mail so he could send quotes and the like. I accept that after the accident, the plaintiff is more reliant on this form of communication. After the accident, his needs for the use of a computer have changed. The plaintiff now would use the computer to do internet shopping and banking, to keep in contact with friends via email and to do research and to locate an article he wants to purchase rather than physically trawl through the shops (t 48.15).

74 This view is supported by the Australian Bureau Statistics, statistics on Use of The Internet By Householders, November 2000, at 7. The plaintiff falls within a demographic of which 74% were internet users at the time of the survey. According to additional figures published by the Australian Bureau of Statistics in the report Communications and Information Technology Household use of information Technology, of internet users in the 18-24 demographic in 2000, 39% of access was occasioned from the home while 24% was from a work site. The high rate of access from the home correlates with the significant shift in internet usage generally during 2000. Nevertheless, as an employed adult with computer skills, the plaintiff was twice as likely to have accessed the internet as an unemployed adult. Thus the plaintiff’s need for a computer is essential now. He already has a computer of sorts, with some software. Now he needs a fairly sophisticated computer which has internet facilities, email, ICQ and the like. There are extra components he will now require. Thus, it is my view that the proper allowance for the technology system is that provided for by the defendant, namely the sum of $47,780.00.

Additional holiday costs

75 The plaintiff has claimed $93,078.00 and relied on the reports of Travelaw dated 21 May 2001 and 28 May 2003. The defendant has made an allowance of $60,000.00. Allowance has already been made for travelling assistance earlier in this judgment. From the Travelaw reports, wheelchair accessible rooms are more expensive than those which are non-accessible. While it is difficult to say with precision, it is my view that the plaintiff would have four weeks annual leave. Some periods of this leave during the plaintiff’s working life would have included overseas trips and interstate holidaying. While it is preferable for the plaintiff to travel business class, it is not essential or necessary at least so far as short trips are involved. These included destinations such as New Zealand and possibly the USA. It is my view that business class flights are necessary for long flights such as those to Europe.

76 In Diamond v Simpson (No 1) [2003] NSWCA 67, the defendant challenged the award of $330,000.00 or additional vacation costs for the plaintiff and two carers. The original claim before the trial judge, Whealy J, had been for $430,000.00. The plaintiff was severely disabled by athetoid cerebral palsy. It was based upon a life expectancy of a further 51 years and provided for a two week annual holiday somewhere in Australia and a three week overseas trip every four years. Whealy J described this as a “rather generous travel plan” and after taking into account a number of factors such as the possibility that the plaintiff’s travel overseas might have been at a lower level had she not been injured and the availability of suitable seating for the plaintiff to travel, reduced the claim by $100,000.00.

77 The Court of Appeal, Stein, Ipp JJA and Young CJ in equity, did not criticise the approach adopted by Whealy J in reaching the award of $330,000.00, which it described as a “broad-brush” approach. However, it pointed out, at para 188, that the guiding principle must be one of proportion and reasonableness. It said that the award had an “air of unreality” about it and pointed out that there might be a number of contingencies which might arise to prevent the plaintiff from taking an overseas holiday every 4 years. Instead, it concluded that it might be more reasonable to assume that the plaintiff might make around six trips overseas during the balance of her life expectancy. It also questioned whether it was reasonable to assume that the plaintiff would holiday somewhere in Australia every four years. Accordingly, it found that in terms of proportion and reasonableness $200,000.00 was an appropriate sum to award for the plaintiff’s vacation costs. Taking the matters referred to in Diamond into account and the plaintiff own circumstances, I allow $60,000.00 to reflect the extra costs that will be incurred in terms of airflights and accommodation.

Additional housing costs

78 The plaintiff has claimed the sum of $343,040.00 capital cost plus $399,743.00 as operating costs, totalling the sum of $742,783.00. The defendant has made a total allowance of $300,000.00. The defendant submitted that it would be cheaper for the plaintiff to buy a block of land and construct a project home at Warnervale similar in design to those shown in Exs 3 and 4. The plaintiff served and relied upon reports of an architect, Mr Heine of Heine Architects Pty Limited, dated 25 July 2001 and 31 March 2003, and a supplementary report dated 15 June 2003 (Ex D). While the plaintiff is not sure where he will ultimately reside, he favoured east of the Castle Hills area where he has spent some time (not Warnervale).

79 Associate Professor Jones is of the opinion that the plaintiff would need an appropriately designed home that would ideally have air conditioning, although it would not be essential for the plaintiff’s level of spinal cord impairment, but it would reduce the risk of his developing dehydration due to inclement hot weather. Associate Professor Jones was adamant that it was important that the plaintiff had a heated domestic size swimming pool for regular exercise. The plaintiff also wants a spa pool, the cost of which Associate Professor Jones says is negligible in the scheme of things (t 217).

80 It is my view that the plaintiff needs a heated swimming pool for exercise, particularly if he is working, which includes a spa. He also needs a house with air conditioning. The plaintiff would have, if the accident had not occurred, built a swimming pool and probably a spa on his property. He may have relied upon solar heating rather than full heating throughout the year, but now the pool needs to be heated all year round. I shall return to this topic when I discuss the issue of additional capital costs. Some time was spent in cross-examination of witnesses about the cost of air conditioning two rooms instead of the whole house. The difference is marginal and I accept Associate Professor Jones’ recommendation in relation to air conditioning.

81 The plaintiff would like somewhere to call home. It needs to be flat and on one level, with modifications made to it, such as, a larger than average bathroom made wheelchair accessible with appropriate hand railing; a kitchen that has been customised for disabled people, ie, spread out and cupboards not up high; and a double garage that he can drive into and get out undercover. The home needs to have level access including to the entrances. This could be an apartment or a house but most of Associate Professor Jones patients stay in homes, not apartments, possibly a preference for not being confined (t 170-171; t 222).

82 Michael Bartlett of Cordell Building Information Services said that the home would require three phase electrical connection because of the ducted air-conditioning. A garage door opener which would cost $600-$700 supplied and installed would be required. Internal pivot doors are necessary to enable the plaintiff to open from both sides in his wheelchair. He agreed that the swimming pool could be solar heated using the heating system of the house but, from his own personal experience, mentioned that his pool with solar heating cannot be used during winter (t 238-239). A sum representing this increased cost of heating the pool should be allowed.

83 Mr Bartlett was told that an alarm system and a video intercom system were required and they were included in the pricing. It is my view that the plaintiff would have included these items in his house regardless of the accident. Mr Bartlett gave evidence that the split cycle air-conditioner (in two rooms) would cost about $3,000.00 including installation per unit. From the sketch plan of the house (for option 3), two units would be necessary (t 240). Mr Barrett said that project homes are generally well designed and well made but dimensions of doors and hallways are kept to a minimum so it is unlikely that they would be able to accommodate a person in a wheelchair (t 241). In relation to the project homes shown in Exs 3 and 4, they do not have these modifications included in the price nor was there was any evidence given to establish that these project home builders would build to these modifications and if they did so, the cost of doing so. Further, the estimates of costs of a project home largely depend upon the site that is chosen to build the house.

84 From the evidence referred to earlier, the plaintiff would have built a large house in which he and his family would reside had the accident not occurred. The plaintiff would have built a two storey house, but after the accident he would prefer to reside in a single storey home so that he will not be dependant on a lift. The calculation of additional capital costs in the Heine reports take into account firstly, the additional capital costs for land; secondly, additional costs in the construction of the plaintiff’s house due to the inability to contribute his own labour; and thirdly, the additional costs for a modified house to accommodate his special needs following his accident.

85 Mr Heine’s report of 31 March 2003, breaks down the costs of additional housing into two major components, namely the capital costs contained in Schedule 1 and operating costs contained in Schedule 2 the additional capital costs of Option 3, the single storeyed house, is calculated at $343,040.00. This is made up of the additional costs of land in the sum of $135,000.00, additional costs of building of $112,460.00 and costs of lost labour at $95,580.00 which totals $343,040.00. The claims for additional land and the costs of lost labour are reasonable. However, included in the third item are the additional costs of building is an indoor heated pool, which is in addition to the outside pool. This is not necessary. The heating costs of the outdoor pool of $500.00 has already been allowed. Although Ms MacMaster refers to the need for an indoor hydrotherapy pool, Associate Professor Jones makes no mention of a hydrotherapy pool being a necessity. I disallow this item. Later in this judgment adequate provision has been made to ensure he has the means to keep himself physically fit. Thus, it is not reasonable to make an allowance for a hydrotherapy pool. In the Heine report an amount of $42,400 was calculated for the specialised works in building the indoor heated pool ventilation area. Further, a sum of $21,800.00 was allocated to house air conditioning, together with pool area ventilation. I disallow the pool area ventilation portion of that amount. I disallow the sum of $58,200.00 but allow the costs of house air conditioning in the sum of $6,000.00.

86 This means that I the amount of $284,484.00 is allowed for capital costs component of the additional housing costs.

87 The second component, namely the additional operating costs for Option 3 are listed below.

Additional operating costs per annum – Option 3 – Single Storeyed house (after accident – as at 31 March 2003)

Item	Additional cost
Depreciation of buildings (Schedule 6b)	$1,790.00
Depreciation of items other than building (Schedule 6b)	$5,825.00
Buildings insurance (Schedule 7c)	$130.00
Contents insurance	$0.00
Air conditioning (Schedule 4)	$2,010.00
Hydrotherapy pool (Schedule 5)	$5,180.00
Swimming pool	$525.00
Building repairs and maintenance [Appendix G of Mike Bartlett report: SD labour (Option 1) + total (Option 3)	$5,255.00
Council rates @ 0.00224500 x $50,000.00	$305.00
Total additional operating costs per annum	$21,020.00

88 For the reasons given earlier, I do not allow the sum of $5,180.00 for the hydrotherapy pool. This brings the sum of additional operating costs per annum to $15,840.00. This equates to the weekly sum or $304.62 per week x 961.5 = $292,892.13. Thus, I allow the total sum for additional housing costs as $284,484.00 plus $292,892.13 = $577,376.13.

Future medical expenses

(i) Medical care

89 The parties have agreed that $10,002.00 is an appropriate sum for urinary and renal screening annually. Associate Professor Jones (report 19 July 2001) is of the opinion that the plaintiff will require screening of his urinary system and renal system at two to three yearly intervals for the rest of his life and on an average he will require to see his general practitioner three or four times per year and be reviewed by his spinal specialist at yearly intervals. This amount is allowed.

90 Dr Bon San Bonne Lee a spinal and rehabilitation physician (report 29 May 2003) stated that the plaintiff suffers from ongoing urinary leakage and will require an indwelling catheter instead of intermittent catheterisation. If the plaintiff has evidence of reducing bladder volume, secondary to a neuropathic bladder at best this would probably involve life long anticholinergic medication (oxybutynin) this may extend to a possible change of bladder management in the case of ongoing leakage, or at worst long term, interventionist procedures such as clam cystoplasties in order to create bladder volume and protect the plaintiff’s kidneys from vesico-ureteric reflux. The plaintiff is a keen sportsman. According to Dr Bonne Lee the plaintiff is at risk of immobility osteoporosis and subsequent fractures as he ages and loses bone density. As he ages he will require investigation with bone mineral density studies and treatment at some stage for osteoporosis in order to prevent minimal trauma fractures.

91 Richard Millard, Associate Professor of Urology, gave evidence and was cross-examined. He was an impressive witness. Dr Catalaris agreed with his views. In his report dated 30 May 2003, Associate Professor Millard opined that the plaintiff would require nerve blocks in the future to drop his intravesical pressures as a day case procedure at an approximate cost of $500 every 12 to 24 months. In the near future, it is probable that the plaintiff will need the placement of a bladder neck artificial urinary sphincter at a cost of approximately $12,000 to keep him dry. The parties agree that this sum should be allowed.

92 The parties agree that the sum of $10,649.00 should be allowed for 4 visits to a doctor annually for a consultation of 30-45 minutes. The parties agree that the sum of $3,651.00 should be allowed for consultations with two specialists once annually. The parties agree that the sum of $62,300.00 should be allowed for hospital visits at $547.00 per day based upon a quotation from St Vincent’s Private Hospital. The parties have agreed that $10,459.00 should be allowed for physiotherapy consisting of an estimated 10 visits annually at a cost of $55.00 per visit. The parties agree that $5,000.00 should be allowed for antibiotics and medication. They have agreed that $6,339.00 should be allowed for nerve blocks every 18 months at $500.00 and that $12,000.00 should be allowed for an artificial sphincter.

93 The parties disagree on the following items claimed for future medical care, namely the drugs Caverject and Tolterodine, invitro fertilisation, pain management, seating clinic review and a personal trainer. The plaintiff submitted that $74,167.00 should be allowed for Caverject injections. The defendant disagreed. The evidence for its need is contained in the report of Professor Millard and t 106.35. The plaintiff’s claim is reasonable (if not modest) and I allow this amount.

94 The plaintiff submitted that $10,000.00 should be allowed for invitro fertilisation. The defendant has allowed $2,000.00. It is not certain whether the plaintiff will need to undertake this process nor is it certain how many children the plaintiff will have. It is the plaintiff’s wish to have at least two children, possibly four. In accordance with the principles in Malec v Hutton (1990) 169 CLR 638, I should make allowance for this possibility. I make an allowance of $4,000.00 for invitro fertilisation.

Tolterodine

95 The plaintiff has submitted that $21,014.00 should be allowed for the purchase of Tolterodine. The defendant has allowed $12,000.00. This represents the costs of the “cheap and cheerful” drug Oxybutynin which the plaintiff is currently taking to drop the pressure inside his bladder. Both Oxybutynin and Tolterodine are equally effective drugs but their side effects differ (t 200). The level of functioning of the plaintiff’s bladder is a current concern and the plaintiff is undergoing further tests. The plaintiff has been taking Oxybutynin for the last month. If he is unable to tolerate Oxybutynin ($5.00 per month) he may need to go onto Tolterodine at a cost of $85.00 per month. The plaintiff says that the side effects from Oxybutynin are that he becomes drowsy and has difficulty focusing. Dr Millard’s evidence is that some patients do report drowsiness and affected concentration as a side effect from Oxybutynin but this is more likely to occur in older patients, but he accepts that the plaintiff may suffer this side effect. However, 30% of those taking the drug suffer unacceptable side effects and refuse to take it. It is more likely than not that the plaintiff may have to replace Oxybutynin with Tolterodine. Tolterodine has to be imported from New Zealand. I allow the sum the plaintiff has claimed, namely $21,014.00.

96 The plaintiff has also allowed $10,000.00 for pain management, $5,000.00 for seating clinic once every 5-10 years and $4,564.00 for a personal trainer at $240.00 annually. The plaintiff will develop problems if he does not keep as physically active as possible, such as osteoporosis and weakening of the bone density. The plaintiff said that with the blood circulation, the stronger the heart, the less change of pressure sores, which take a long time to heal, as his brain does not identify any lacerations and so does not send enzymes and minerals to heal. He has had an ulcer on his knee for six months (t 57). Associate Professor Jones said it would be reasonable for the plaintiff to go to a gym, and that when the plaintiff went away with teams he would have a physiotherapist who would treat him and teach him training regimes for building specific muscles needed for his particular sport. He would need a personal trainer while he is participating in sports at a high level (t 220). David Bacon, made an observation about cardiovascular fitness and upper limb muscular strength and that the opportunities for a paraplegic to exercise is considerably reduced. He said that a paraplegic should take every opportunity that presents itself to exercise. He recommends a supervised gym program initially, to supervise and guide the plaintiff into appropriate forms of exercise. He also suggested a wheelchair so that the plaintiff could participate in basketball (t 254). The plaintiff currently plays wheelchair basketball with the Sydney Kings. The defendant has made no allowance for these items.

97 As the plaintiff is a young man, and over his lifetime it can be expected he will from time to time suffer pain in his neck and shoulders, pain management advice will be beneficial. Hence I allow an amount of $5,000.00. In accordance with the principles in Malec v Hutton, I also make an allowance of $1,000.00 for seating clinic as the plaintiff’s body may deteriorate, such that he may benefit from advice from the seating clinic. A sum has already been allowed for gym membership and while the plaintiff remains an elite athlete he will be provided with the services of a personal trainer. I do not allow any amount for a personal trainer.

(ii) Special equipment

98 The plaintiff currently owns a “Quickie” wheelchair which is three years old. He also owns a basketball wheelchair and a ski chair. The plaintiff said that it was $5,500.00 for a chair, including a backrest, which he had used and would desire but has since broken and cannot use and for the cushion that he is required to sit on (t 173). Associate Professor Jones stated that if the plaintiff were to work he would need a fully operational spare wheel chair. He stated that the plaintiff required a standard wheelchair, a sports chair and commode and shower chair, and an appropriate mattress to reduce the risk of decubitus ulceration. Associate Professor Jones was also of the view that a titanium wheelchair was better (t 218). In lieu of the current wheelchair, which weighs approximately 20 kilos, the plaintiff would like a titanium wheelchair, which weighs half the amount. The plaintiff is very physically active and travels by car and will also travel by plane. The titanium wheelchair is easier to put in and out of his car and transport generally. Ms Kirchner, who works in the seat clinic at Prince Henry Hospital, stated that it would be better in the long run if the plaintiff had a titanium wheelchair.

99 The plaintiff says that his current chair is adequate but is an excessive weight. He had physiotherapists look over his transfer method into his car and they say that because the plaintiff has had five vertebrae fused that there’s only three vertebrae below and all the movement that would occur over the five vertebrae occurs over these three vertebrae so there’s a lot more wear and tear and that is why the plaintiff is hoping to obtain a titanium chair. The plaintiff has to lift the chair by one arm when he gets into the car and the titanium chair is half the weight and there would be less wear and tear on his shoulder pushing up hills. The plaintiff says that 10 kilos is a lot of weight to carry. The titanium chair quoted is the desired chair that everyone is acquiring, including all the plaintiff’s friends; moving away from the chromide construction. The plaintiff’s current Quickie chair has been adequate for three years, subject to the things he said in evidence, and is twice the weight that he could have (t 174).

100 Sally Kirchner, an occupational therapist, agreed with counsel that, in the long run, it is better to have a 10 kilo chair (the weight of the titanium chair) compared to a 16 kilo chair. When transferring in and out of cars, for example, and having to wheel a chair, or having to negotiate gutters, steps and the like the less wear and tear a paraplegic puts on his upper limbs the longer the limbs are going to last, which is why technology has been over the years aimed at achieving lighter and lighter chairs (t 269). Associate Professor Jones said that the plaintiff needs two wheelchairs, one of which will be operable at any time that would get him to and from work. The plaintiff has been in the position of being without a wheelchair at some stage and he found it very belittling and humbling (t 108).

101 It is my view that the plaintiff is entitled to have titanium wheelchairs as he is very physically active and there is medical support for this view. In the long term, the less wear and tear on his body the better. The plaintiff submitted that replacement of two wheelchairs (multiuse) is $17,018.00 once every three years which totals $107,878.00. The defendant allowed $29,173.00. Although the plaintiff has claimed for a new spare chair, as he would like to have one solely devoted to inside use at home, I do not think it is necessary. The plaintiff could use his old chair which after a service could be used as an inside chair and also operate as a spare chair in the event his current chair needs maintenance. Every three years the Quickie is replaced and the chair the plaintiff had been using is relegated to being the spare chair. Only one wheelchair needs to be replaced every three years, so I allow half this amount, namely $53,939.00 and maintenance of $5,000.00.

102 The plaintiff has claimed $9,622.00 for a leg trainer with a replacement every 12 years (no costs have been provided for replacement). Associate Professor Jones said that he prescribes them to elite athletes as they think they are necessary. He said that they are very useful in maintaining the range of motion in people who are very active in their elite sports and he thinks it is reasonable (t 221.30-35). Associate Professor Jones said the type of leg exercise machines that drive the legs rather than the legs driving them are readily available. He said that they are used by people such as the plaintiff to maintain a degree of muscle tone in the paralysed limbs, to maintain joint range of motion, which is important (t 224.20-30). The defendant has made no allowance for this. In light of Associate Professor Jones’ recommendation, I allow this amount of $9,622.00. No amount has been claimed for a replacement and I am not satisfied that replacement of this piece of equipment is necessary.

103 The parties have agreed on the sum of $2,500.00 for a sit ski. The plaintiff has claimed $11,715.00 for a replacement ski every 5 years for a period of 40 years at a cost of $7,000.00, deferred multiplier .748, multiplier 555.0 and maintenance of sit ski at $250.00 per annum using 555.0 multiplier = $2,668.00. The defendant has made an allowance of $2,000.00. The sit ski, which the plaintiff uses, costs $5,700.00 plus import, stamp duty and GST. It was purchased by Mr Denton (t 110.5). It is reasonable that the plaintiff be provided with two more chairs (one in five years time, the next in 10 years times) and maintenance for 15 years at $250.00 per annum. As it is my view it is unlikely that skiing will be the plaintiff’s all consuming passion in his older years and his need for continued updating of his chair will have abated.

104 The plaintiff has claimed $7,295.00 for a Freedom Rider Superbike with a replacement twice over a period of 40 years of $6,936.00. The plaintiff says he would use it as a form of exercise. He said that there are adaptations for the wheelchair that connect to the front that have a cycle and a wheel on them so that he could use it to shoot down to the shop and take it off and then push it through the shopping centre and come back out with his groceries, put his basket on the back, and connect that to the chair and take off again (t 112.10.15). The plaintiff aims to be a professional athlete and expects that he will use it professionally to either race with in the future and/or to train with. He said he will be an international competitor or he would require a racing bike to train with and to use for dry-land training (t 175.15-30). Associate Professor Jones pointed out that elite sportsmen, whether able bodied or disabled, have their own ideas about what is best for them, such as a bike for dry land training, which the plaintiff can use as a means of exercise and to go to the shops (t 218.15.35). The defendant has made no allowance for this. I allow for this bike plus two replacements over 40 years, which amounts to the sum of $14,231.00.

105 The parties agree on the following expenses: $35,000.00 should be allowed for a supervised gym programme. $3,500.00 should be allowed for a basketball chair and $1,985.00 should be allowed for its maintenance at $250.00 per annum for 10 years. $25,000.00 should be allowed for an Invacare storm torque, its replacement every 10 years and its maintenance.

106 The parties also agreed that $590.00 should be allowed for a Pindot cushion and a further $2,244.00 for a replacement every 5 years. $685.00 should be allowed for a Roho cushion and $2,605.00 for a replacement every 5 years. $755.00 should be allowed for an Invacare back cushion and $4,786.00 for a replacement every 3 years. The amount for cushions is agreed.

107 The plaintiff said that he has always enjoyed going out in the bush (t 112-113). The plaintiff sought the sum of a Thermorest camp mattress at $1,050.00 and replacements each three years in the sum of $6,656.00. It is my view that as the plaintiff has from a young age enjoyed experiencing nature, he will go camping but two replacements are sufficient. I allow the sum of $1,050.00 for the camp mattress and two replacements at $950.00. The camp mattress and replacements total $2,950.00. It is agreed that the plaintiff is entitled to a mobile shower commode at a cost of $829.00, and a replacement each five years which amounts to $3,153.00, the total being $3,982.00. I allow this amount.

108 The parties have agreed that the sum of $800.00 should be allowed for the purchase of gym weights and a pulley. An additional $1,400.00 has also been allowed for parallel bars.

Future pharmaceutical expenses

109 It is also agreed that $51,569.00 should be allowed for catheters at a cost of $10.80 for 4 per day. $2,586.00 is allowed for a leg bag replacement. $1,271.00 is allowed for Milton solution. $5,399.00 is allowed for glycerine. $2,167.00 is allowed for a bedding protector. A further $7,630.00 for sorbitol and $6,230.00 for latex gloves is allowed.

110 The plaintiff also sought that allowances be made for the following expenses for which the defendant made no allowance namely, $14,072.00 for occupational therapist review. $10,000.00 for occupational rehabilitation and $5,000.00 for consultations with a psychologist. There no doubt will be advances in gadgets and techniques in the next 50 years, the plaintiff may benefit from consulting an occupational therapist or rehabilitation specialist from time to time. Once again in accordance with Malec v Hutton, I should allow for this possibility. An appropriate amount to allow for occupational review and rehabilitation is $5,000.00. The plaintiff may also benefit from some counselling in the future, so I allow $2,000.00 for this.

111 The plaintiff sought a sum of $8,509.00 for a spare wheelchair for multi-use. For reasons given earlier, this is not necessary so I disallow this amount. The plaintiff also sought $6,072.00 for a leg trainer and $9,622.00 for a replacement every 12 years. It is my view that a reasonable allowance for the plaintiff’s physical fitness has already been made, so I disallow this amount sought for a leg trainer.

112 The plaintiff also submitted that a personal alarm is necessary in the sum of $12,361.00 at $50.00 per month. Although the plaintiff gave evidence that he would feel more secure with a personal alarm, its need was not supported by Associate Professor Jones. In this era of mobile phones, it is neither necessary nor reasonable for the plaintiff to have a personal alarm in addition to a mobile phone. The plaintiff already has a mobile phone and would have obtained one whether or not the accident had occurred. Accordingly, I disallow the sum of $12,361.00 and $300.00.

Final calculations

113 The calculations for sit ski, including replacement and maintenance and future economic loss have been agreed upon and inserted in the schedule below.

Workers Compensation payments

114 Workers Compensation payments made to date are $237,211.78. This amount has been deducted – see schedule below.

Judgment

(1) I enter judgment that the defendant pay to the plaintiff the sum of $2,423,071.12.

(2) The defendant is to pay the plaintiff’s costs as agreed or assessed.

SCHEDULE

1. Non economic loss	$244,250.00
2. Past economic loss	$93,376.00
3. Interest on past economic loss	$3,178.00
4. Fox v Wood	$5,807.00
5. Past loss of employer’s superannuation contributions	$8,471.00
6. Future economic loss	666,271.36
7. Past out of pocket expenses	$173,046.00
8. Past cost of handyman	$3,645.00
9. Past gratuitous assistance	$12,240.00
10. Future care and assistance
· Handyman	$28,845.00
· Domestic assistance	$148,973.50
· Vehicle costs to date	$8,000.00
· Future additional transport costs	$50,000.00
· Technology system	$47,780.00
· Additional holiday costs	$60,000.00
· Additional housing costs	$577,376.13
11. Future medical expenses
Medical care
· Screening of urinary and renal system every year	$10,002.00
· Family Doctor	$10,649.00
· Specialists	$3,651.00
· Hospital	$62,300.00
· Physiotherapy	$10,459.00
· Antibiotics & Medication	$5,000.00
· Nerve blocks	$6,339.00
· Artificial Urinary Sphincter	$12,000.00
· Caverject Injections	$74,167.00
· Invitro fertilisation	$4,000.00
Medical care continued
· Tolterodine	$21,014.00
· Pain Management	$5,000.00
· Seating clinic	$1,000.00
Special equipment
· Wheelchair replacement	$53,939.00
· Wheelchair maintenance	$5,000.00
· Basketball chair	$3,500.00
· Basketball chair replacement	$9,500.00
· Basketball chair maintenance	$1,985.00
· Leg trainer	$9,622.00
· Sit ski	$2,500.00
· Sit ski replacement	12,454.00
· Freedom rider superbike	$7,295.00
· Freedom rider superbike replacement	$6,936.00
· Invacare storm torque	$25,000.00
· Levo standup chair	$16,000.00
· Pindot cushion	$590.00
· Pindot cushion replacement	$2,244.00
· Roho cushion	$685.00
· Roho cushion replacement	$2,605.00
· Invacare back cushion	$755.00
· Invacare back cushion replacement	$4,786.00
· Thermo rest camp mattress	$2,950.00
· Mobile shower commode	$3,982.00
· Gym Weights and Pulley	$800.00
· Parallel Bars	$1,400.00

12. Future out of pocket expenses

· Supervised Gym Programme
$35,000.00

· Gym membership
$10,333.00

· Occupational therapist review & Occupational rehabilitation
$5,000.00

· Psychologist
$2,000.00

13. Future pharmaceutical expenses

· Catheters
$51,569.00

· Leg bag replacement
$2,586.00

· Milton solution
$1,271.00

· Glycerine
$5,399.00

· Bedding protector
$2,167.00

· Sorbitol
$7,360.00

· Latex gloves
$6,230.00

Schedule Total
Less Workers Compensation payments made to date
$2,660,282.90
$237,211.78

Judgment amount
$2,423,071.12

**********

Last Modified: 09/15/2003

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Citations

Dallas v Denton Building [2003] NSWSC 833

Most Recent Citation

R v Bell (No 11) [2024] SADC 43

Cases Citing This Decision

1

R v Bell (No 11) [2024] SADC 43

Cases Cited

7

Statutory Material Cited

1

State of New South Wales v Moss [2000] NSWCA 133

Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93

Sullivan v Gordon [1999] NSWCA 338

CITATION:	Dallas v Denton Building [2003] NSWSC 833
HEARING DATE(S):	2, 3, 4, 5, 6, 10, 11 & 12 June 2003
JUDGMENT DATE:	11 September 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Master Harrison
DECISION:	(1) Enter judgment that the defendant pay to the plaintiff the sum of $2,423,071.12; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.
CATCHWORDS:	Personal injury: assessment - paraplegic
LEGISLATION CITED:	Workers' Compensation Act - ss 151K; 151M
CASES CITED:	Diamond v Simpson (No 1) [2003] NSWCA 67 Jongen v CSR Ltd (1992) Aust Torts Reports 81-192 Malec v Hutton (1990) 169 CLR 638 State of NSW v Moss [2000] NSWCA 133 Sullivan v Gordon (1999) 47 NSWLR 319 Van Gervan v Fenton (1992) 175 CLR 327
PARTIES :	Shannon Keith Dallas (Plaintiff) P & M Denton Building Constructions Pty Ltd (Defendant)
FILE NUMBER(S):	SC 20232/2001
COUNSEL:	Mr A J Bartley SC with Mr J H Gibson (Plaintiff) Mr P Blacket SC with Mr D Priestley (Defendant)
SOLICITORS:	Mr Ian Chipchase Stacks (Plaintiff) Mr Andrew Kemp Holman Webb (Defendant)

12. Future out of pocket expenses
· Supervised Gym Programme	$35,000.00
· Gym membership	$10,333.00
· Occupational therapist review & Occupational rehabilitation	$5,000.00
· Psychologist	$2,000.00
13. Future pharmaceutical expenses
· Catheters	$51,569.00
· Leg bag replacement	$2,586.00
· Milton solution	$1,271.00
· Glycerine	$5,399.00
· Bedding protector	$2,167.00
· Sorbitol	$7,360.00
· Latex gloves	$6,230.00
Schedule Total Less Workers Compensation payments made to date	$2,660,282.90 $237,211.78
Judgment amount	$2,423,071.12