De Ceglie v Timosevski

[2018] NSWDC 196

District Court

New South Wales

Medium Neutral Citation:

De Ceglie v Timosevski [2018] NSWDC 196

Hearing dates:

10, 11 July 2018

Date of orders:

19 July 2018

Decision date:

19 July 2018

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the plaintiff against the defendant for $107,458.35.
(2)   Order the defendant to pay the plaintiff’s costs.
(3)   Grant liberty to the parties to approach my Associate within 7 days if any different costs order is sought by either party.

Catchwords:

NEGLIGENCE – accident involving car and motor scooter

 

LIABILITY – resolution of conflicting versions of accident – inconsistency between oral evidence and statement to police – most probable explanation for accident

 

CONTRIBUTORY NEGLIGENCE – standard of care that of a reasonable person – degree of departure, if any, from standard of care

  DAMAGES – future loss of earning capacity

Legislation Cited:

Civil Liability Act 2002
Motor Accidents Compensation Act 1999

Category:

Principal judgment

Parties:

Antonio Paul De Ceglie (plaintiff)
Mitchell John Timosevski (defendant)

Representation:

Counsel:
P Menzies QC with W Ward (plaintiff)
R Perla (defendant)

  Solicitors:
J A Buda & Associates (plaintiff)
Moray & Agnew (defendant)

File Number(s):

2017/132436

Judgment

Introduction

1. The plaintiff was injured when he fell from a Vespa motor scooter in Dalhousie Street, Haberfield on 20 March 2015. These proceedings were brought by the plaintiff seeking damages for the alleged negligence of the defendant.

2. Liability is in issue. The Civil Liability Act 2002 is relevant to questions of liability. Quantum is in issue. The Motor Accidents Compensation Act 1999 is relevant to the calculation of damages. The plaintiff’s case was that he was riding along Dalhousie Street when the defendant’s utility vehicle, which had been parked on the left-hand side of the road, turned directly across his path. The defendant’s version was that no such manoeuvre was performed. The defendant’s case was that the utility was stationary with its indicator on, waiting to make a right-hand turn, when the plaintiff approached from the rear and fell off his scooter.

3. As counsel for the defendant correctly put it, this is a case where the court must make a finding about whether the plaintiff’s version, or the defendant’s version, is accepted. There is really no room for finding that the accident happened in some way which is a combination of the two cases.

Liability

4. Certain facts were not in issue. They are:

1. Dalhousie Street runs approximately east-west.

2. At its western end Dalhousie Street runs into Parramatta Road.

3. Dalhousie Street is a reasonably busy connecting road.

4. The plaintiff lived in the family home at 26 Dalhousie Street, which is on the northern side of the street.

5. The defendant’s employee Mr Jordan Sims was doing tiling work at 37 Dalhousie Street which is on the southern side of the street.

6. Mr Sims was driving the defendant’s utility on the day of the accident.

7. Mr Sims arrived at 37 Dalhousie Street at about 7.00am in order to perform tiling work. He parked the defendant’s utility nose-in to the driveway of the property.

8. At about 8.00am Mr Sims had to move the utility because it was blocking the owner’s car.

9. Mr Sims reversed the utility out of the driveway and then drove west towards Parramatta Road.

10. Before he got to Parramatta Road Mr Sims turned north into a driveway on the northern side of Dalhousie Street, did a three-point-turn and then drove back east along Dalhousie Street.

11. Mr Sims was intending to return to 37 Dalhousie Street and park in the driveway.

12. The plaintiff rode his Vespa motor scooter out of the driveway of No. 26 and turned left into Dalhousie Street, thus travelling east.

13. The accident occurred on Dalhousie Street just north of No. 37 and just south of No. 34, which was a large block of home units.

14. Where the accident occurred there is one trafficable lane in each direction separated by double lines, and one lane for parked cars in each direction.

15. On the northern side of Dalhousie Street adjacent to No. 34 there was a bus stop.

16. The bus stop was part of the northern lane available for parked cars.

17. At the time of the accident the roadway was dry, the weather was fine and the light was good.

5. The version of the plaintiff and the version of Mr Sims about how the accident occurred were starkly different.

Plaintiff’s version of the accident

6. The plaintiff said that he rode his Vespa out of the family home and turned left and then travelled east along Dalhousie Street. He said that he rode about 100 metres before the accident occurred. In oral evidence he said that he was travelling at no more than 20-30kph. He was riding towards a coffee shop where he was going to meet some friends and he was then intending to go on to the gym which he regularly attended.

7. The plaintiff said that as he approached the scene of the accident he saw a white utility on the left-hand side of the road at a bus stop. His perception was that the driver was talking on a mobile phone. He thought that he was about 40 metres away when he first saw the utility.

8. As to the occurrence of the accident the plaintiff said:

“And all of a sudden he’s in front of me and I brake to avoid him and my front wheel – I lost control of my front wheel and went underneath the – his ute. And that’s all I remember.”

9. The plaintiff said that he thought the utility was doing a sudden U-turn from the parked position on the left side of the road in the bus stop. The utility was driven side-on to him and so he was faced with an emergency situation leading him to brake and lose control of the scooter.

10. The plaintiff said that when he was lying on the road he was just next to the double set of lines. He said that the driver of the utility approached him and tapped him on the helmet and said: “Where the fuck did you come from?”.

11. The plaintiff could remember cars driving past him. He was lying on the ground and it seemed like forever until the police and the ambulance arrived. He was in a lot of pain and he was screaming because of the pain. He was taken straight into the ambulance and given morphine for his pain. He was then taken to the Emergency Department of Royal Prince Alfred Hospital.

12. In cross-examination the plaintiff said that he had ridden his Vespa on Dalhousie Street hundreds of times, as he lived in the street. He denied that he was travelling at 50kph. The plaintiff acknowledged that he came around a left-hand bend from his home and then approached the area where the accident happened. There is no clear line of sight from his home to the bus stop. It was when he came around the bend that he noticed the utility parked on the left-hand side with the driver on his phone.

13. The plaintiff agreed in cross-examination that he did not see a phone in the driver’s hand. He saw the driver’s hand touching the side of his head and he assumed that he was using a mobile phone. The plaintiff could perceive no other reason why the utility would be sitting parked in the bus stop area.

14. The plaintiff was cross-examined about a number of versions he had given in relation to the accident.

15. The ambulance notes, in relation to the accident, read as follows:

“Motorised scooter rider came off at approx. 50km/hr. Pt [patient] states car came out in front of him causing him to swerve and fell off. Denies LOC [loss of consciousness], wearing a helmet.”

16. The notes of the Emergency Department at Royal Prince Alfred Hospital were tendered. The “triage comment” in the notes was:

“m-mba 50k swerved to miss car and fell off.”

17. The nursing notes made at 9.10am on the morning of the accident recorded as follows:

“Pt fell from scooter at approximately 50km/hr, swerved to miss a car. Pt landed on right shoulder. P was wearing a helmet.”

18. On 26 March 2015 the plaintiff was interviewed at the hospital by a social worker Ms Hayes. In relation to the accident, she recorded:

“Pt [patient] advises was travelling down Dalhousie St Ashfield when a white ute did a U-turn in front of him, causing him to swerve and fall off bike preventing collision. He states driver then got out of car and hit pts [patient’s] helmet and then drove off. Nil rego details attained [sic] and Ashfield Police involved. Event no. 5736247. Accident date 20/3/15 – pt reports cannot remember more.”

19. A police notebook was tendered which recorded an interview between Constable McCracken and the plaintiff which occurred at 8.12am on 20 April 2015. The notebook recorded each question asked by the police officer and each answer given by the plaintiff. The plaintiff signed the notebook to acknowledge the accuracy of the questions and answers recorded.

20. In relation to the accident the plaintiff told the police:

“I came out of my driveway, turned left and was travelling about 30kms, I noticed a white table top ute. I saw the driver on the phone. The driver was doing a U-turn. I instantly started to break [sic] and then my front tyre went. As a result I fell and landed on my right shoulder. I managed to get my phone to call my friend to come down. The driver of the ute came over and said ‘I don’t know where you came from’.”

21. The defendant tendered a copy of the plaintiff’s claim form sent to the insurer and received on 9 September 2015. In the box “Describe what happened in the accident. Include details of who you believe caused it” the claim form said:

“Riding Vespa on LHS of Dalhousie Street heading towards Haberfield Shops.

Car (ute) was parked far left near curb and bus stop.

Ute then quickly did a U-turn in front of me (no warning indicator). I braked hard to prevent colliding with the ute. Vespa slid.

My Vespa slid toward left and I fell towards the right damaging my right shoulder and ribs as per doctor’s report. Please see diagram.”

22. The claim form also records that the accident was reported to police, who came to the RPA Hospital on Friday, 20 March 2015. No diagram was tendered as part of the claim form. The plaintiff signed the claim form on 13 April 2015. He said that the writing on the claim form was not his (except for his signature), and he could not remember who filled it in on his behalf. Nevertheless the plaintiff did not dispute the accuracy of the matters in the claim form which he signed to declare as true and correct.

23. The plaintiff was also cross-examined about versions of the accident recorded by doctors in their reports. It was not clear from the reports of Dr Bodel or Dr Davis, tendered for the plaintiff, whether or not the history of the accident came from the plaintiff himself or from matters which the doctors had been asked by solicitors to assume.

24. The version of the accident recited by Dr Bodel accorded generally with the plaintiff’s version, save that Dr Bodel did not record anything about Mr Sims being on a mobile phone. Dr Davis recited a three-line history of the accident, and again nothing was said about a mobile phone.

Defendant’s version of the accident

25. The version of the accident put forward on behalf of the defendant came from Mr Jordan Sims, an employee of the defendant and the driver and sole occupant of the utility. The matters not in dispute concerning Mr Sims’ version have previously been set out.

26. Mr Sims gave evidence that he was heading back towards No. 37, travelling east on Dalhousie Street. He indicated to turn right, stopped in the line of traffic and was waiting to turn into the driveway of No. 37. There was oncoming traffic so he had to wait. Mr Sims said that he then heard “scraping noises” which sounded like something scraping along the ground. When he heard the scraping noises he turned the hazard lights on because he wasn’t sure what the noise was. He got out of the driver’s door and walked to the front of the car. He said that he saw a “moped” on the ground and he saw a man on the ground. The moped was on the passenger side of his car towards the front of the car. The man was in a similar position, close to the moped.

27. He said that he then picked up the moped and took it off the road. He thought that that was the first thing he should do. He saw the man lying on the ground in pain. He put wheelie bins in front of his car and at the back of his car so that no-one could run into his car or the man on the ground.

28. He spoke to the police when they came.

29. Mr Sims was cross-examined about the version which he gave to the police. The version in the police notebook was not in question and answer format, nor was it signed. However, it was admissible as a business record and went in without objection.

30. In relation to the version given by Mr Sims the police recorded as follows:

“- pulled into driveway of 37 Dalhousie from Parramatta Road

- as I pulled in I heard a noise “bang”

- got out of his car and noticed a male lying on the ground next to a mop head [sic]

- moved the bike off the road and set bins up as a road block

- a gentleman in the white van applied first aid holding his head

- owner of No. 35 Dalhousie Street called emergency services.”

31. Mr Sims was cross-examined about the version of the events recorded by the police as coming from him. He denied that the accident happened when he was pulling into the driveway of 37 Dalhousie Street. He recalled the police arriving and he recalled speaking to the police and giving an account of what happened. When he was asked whether he had said “as I pulled in, I heard a noise ‘bang’”, his answer was:

“I can’t recall, I can’t remember exactly the words that I used, but I know at the time that I was pretty shaken up because there was a man on – laying on the road that was injured from – however he got there, I don’t know. I can’t remember the exact words that I used, but I know that I didn’t pull into the driveway. I was stationary and my car was stopped in the middle of the road. So there.”

32. Mr Sims acknowledged that the recording by the police of hearing a noise, getting out of his car, noticing a man lying on the ground next to a scooter, moving the scooter off the road, setting up the bins as a road block, and someone else administering first aid, were all correctly recorded by the police.

33. Mr Sims said that he did not pull into the driveway and his car was still facing east in Dalhousie Street in the middle of the road when the police arrived. The police did not draw a sketch of the scene in their notebook.

34. Mr Sims denied that he said to the man on the ground “Where the fuck did you come from?” He said that he did not say anything at all to the man on the ground.

35. The plaintiff’s version, that the ute was parked at the northern side of the road in the bus stop and then turned across the eastbound scooter, was put to Mr Sims and he denied it.

Additional evidence on liability

36. Without objection a police “COPS” printout was tendered. It was created by Constable McCracken, who was the officer who attended the scene of the accident. Constable McCracken recorded in the COPS Narrative:

“Police spoke with the driver of the ute (witness) who stated he slowed down and indicated right to go into No. 37 Dalhousie. He had to wait as there was a vehicle coming in the opposite direction. He pulled into the driveway and then heard a bang, got out of his car and noticed a male on the ground with a scooter next to him. The witness then called for other people to assist as he blocked the traffic, placed bins as a road block and moved the scooter off the road. At the same time emergency services were notified by an onlooker.”

37. That Narrative in the COPS document does not accord precisely with what Constable McCracken recorded in her notebook. There is nothing in the notebook about Mr Sims indicating right to turn into No. 37 and waiting as there were vehicles coming in the opposite direction. However, there is consistency between the notebook and the COPS document in that both say that Mr Sims’ version was that he pulled into the driveway and then heard a bang.

38. In relation to the version given by the plaintiff, the COPS document is consistent with what Constable McCracken recorded in her notebook after the interview on 20 April 2015.

39. The COPS document also records material concerning an unnamed witness. It states:

“Police then spoke to another witness at 35 Dalhousie who stated he noticed the scooter take off quickly, he then heard a bang and looked around and saw the DR [driver] on the ground. A male from another car, stopped and performed first aid (holding his neck still) whilst waiting for ambulance and police to arrive.”

40. The COPS Narrative also says:

“Police spoke with the DR [driver] who stated a vehicle had cut him off. Police were unable to find any evidence to support that version. The DR informed police he was travelling at 50kms/hr at the time of the accident.”

41. It is not clear where that speed of 50kph came from, as the version recorded in the police notebook given by the plaintiff was that he was travelling at about 30kph.

42. The COPS Narrative concludes as follows:

“Police have reviewed the version from the driver and the version of witnesses and found there to be conflicting versions. As a result police will not be taking any further action. Police have obtained the medical records of the motor cycle driver.”

43. Constable McCracken then made the following entry in the COPS document:

“After discussing the matter with the Traffic Sgt, it has been agreed the cyclist was at fault for the collision. Given the extent of his injuries police are not taking formal action for the incident. The cyclist has been notified of the outcome.”

44. As noted, it is difficult to understand whether or not the COPS Narrative in the document is accurate, given the discrepancies between the statement recorded by police from the plaintiff, as well as the statement recorded by police from Mr Sims. Further, it is difficult to understand why a traffic sergeant thought that the cyclist was at fault, when the investigating police officer simply came to the view that there were conflicting versions. Finally, the reference to the version of “another witness” makes it plain that that witness did not actually see the accident happen (“he heard a bang and looked around”).

45. I place no weight at all upon the conclusion reached by the traffic sergeant.

46. I place little weight upon the entire COPS document, because of the discrepancies between the contemporaneously recorded statements and the interpretation of those statements recorded in the COPS narrative.

47. There is nothing in the COPS document that causes me to doubt that the police accurately recorded in the notebooks what was said to them by both the plaintiff and Mr Sims. I find that the notebook entries are accurate recordings of what was said to the police by both parties.

Resolution of the conflicting versions on liability

48. As counsel for the defendant correctly put it in final submissions, this is a case where the two versions cannot sit side by side and the court must come to a view as to which version is more probable. The conflict in the evidence is between the plaintiff and Mr Sims, as there was no eyewitness to the collision. As counsel for the defendant also put it, if the plaintiff’s version is accepted, then pulling into the left-hand side of the road to perform a turn across the eastbound lane was a “dangerous driving manoeuvre”.

49. Both the plaintiff and Mr Sims gave evidence in a forthright way. I cannot draw any conclusions on credibility from demeanour. I therefore need to look at other factors affecting credibility.

50. The various versions of the accident given by the plaintiff have all been consistent and I accept his evidence as truthful and accurate. He has at all times said that the utility was parked on the left-hand side of the road in the bus stop and, as he approached, the utility turned straight across the path of the scooter, leading to emergency braking and a fall upon the roadway.

51. I do not think that there is any significant effect on credibility arising from the plaintiff not mentioning on several occasions his impression that the driver of the utility was on a mobile phone. That is very much a peripheral matter.

48. Nor do I think that the different estimations of speed given by the plaintiff (50kph versus 30kph) affect the plaintiff’s credibility. This was a very sudden and unexpected event, and any estimate of speed would necessarily be just that – an estimate.

49. I therefore find that the surrounding circumstances including the account given by the plaintiff to the ambulance officers, the Emergency Department, the social worker, the police, and the insurer (via the claim form) are all consistent with the plaintiff’s version given in court.

50. By contrast, the version of the accident given by Mr Sims on the morning, at the scene, is inconsistent with the version he gave in court. The version recorded by the police is an amalgam of first person and third person expression. However, the police have recorded in the first person Mr Sims saying: “As I pulled in I heard a noise ‘bang’”. The police also recorded that the utility pulled into the driveway of 37 Dalhousie Street, in effect before the “bang”.

51. When confronted with that discrepancy in cross-examination, Mr Sims asserted that it did not happen that way, but that on the morning he was in shock and he could not remember exactly what he did say to the police.

52. There are improbabilities in the version given by Mr Sims in court. I find it difficult to accept that he would have moved the scooter first before attending to a severely injured man lying on the road. I also find it difficult to accept that he would not have said anything at all to the man who was lying in pain on the roadway.

53. I accept the plaintiff’s evidence that while he was still lying on the road Mr Sims tapped on his helmet and expressed surprise as to where the plaintiff had come from. Clearly Mr Sims never saw the plaintiff, otherwise he would never have pulled out straight in front of his path.

54. Finally, in considering the two versions of the accident put forward, I find that the plaintiff’s version of events is the more probable, and that Mr Sims’ version is improbable. If Mr Sims was simply sitting in the traffic in the eastbound lane with his right-hand indicator on then there was no reason why the plaintiff approaching from his rear, even at 50kph, could not have avoided the stationary utility. There was immediately to the left of the utility, on Mr Sims’ version, a clear parking lane created by the bus stop which would have been unoccupied if Mr Sims had been in the trafficable eastbound lane. Even if the plaintiff came up suddenly behind Mr Sims (and it must be remembered that Mr Sims said that he was stationary for some time waiting for oncoming traffic), the plaintiff would have simply swerved into the bus stop area and passed the utility, on its left.

55. There would have been no need on the version put forward by Mr Sims, for the plaintiff to undertake emergency braking and lose control of the scooter.

56. A common feature of both versions is that the scooter had to brake suddenly, fell to the roadway and the plaintiff fell off. The most probable scenario which caused that to happen was that put forward by the plaintiff i.e. the utility was parked in the bus stop waiting to make a right-hand turn across into the driveway of No. 37, and turned straight across the path of the eastbound scooter, giving it no time to stop safely or otherwise avoid a collision.

57. I accept the plaintiff’s version of the accident. I do not accept the version of the accident put forward by Mr Sims in court. I find that the accident occurred as he told the police i.e. that as he pulled into the driveway of No. 37 on the southern side of the street he heard a “bang”, which was clearly the cycle coming into contact with the road after the plaintiff had lost control.

58. I further find that the plaintiff lost control of the cycle because he was faced with an emergency situation, when the utility pulled out from the left-hand side of the road, having been stopped in the bus lane, and drove straight across his path. Rather than run into the utility the plaintiff braked hard and lost control of the scooter, which threw him onto the roadway causing his injuries.

59. I make the following further findings of fact:

1. As the plaintiff travelled east on Dalhousie Street on his Vespa scooter, the utility driven by Mr Sims was stationary in the northern parking lane adjacent to No. 34 Dalhousie Street;

2. The utility was stopped in a bus stop;

3. The scooter was travelling at about 50kph (I make this finding because this is what the plaintiff told the ambulance officers);

4. The plaintiff first saw the utility when he was 40 metres away, but the utility was stationary at that time;

5. When the scooter was quite close to the utility, Mr Sims swung out from the curb with a view to making a 90 degree turn, to travel across double lines and drive into the driveway of No. 37 Dalhousie Street;

6. The plaintiff was a very short distance away when this occurred;

7. The plaintiff braked the scooter heavily and lost control of it;

8. The scooter crashed and scraped along the road and the plaintiff fell off and landed heavily on the road on his right shoulder and side.

Civil Liability Act 2002

64. The defendant’s counsel very properly and sensibly conceded that if the plaintiff’s version was accepted over that of the defendant’s driver, then the plaintiff would establish the matters relevant under s 5B of the Civil Liability Act 2002. For the sake of formality, I record that I find that:

1. the risk was foreseeable;

2. the risk was not insignificant; and

3. in the circumstances, a reasonable person in the position of the defendant’s driver would have taken precautions against a risk of harm to the plaintiff – the precaution would have been to remain parked at the northern curb until the plaintiff’s scooter passed by.

65. For the sake of completeness I also record in relation to s 5B(2) that:

1. there was a high probability that harm would occur if care were not taken;

2. the harm was likely to be serious;

3. the burden of taking precautions to avoid the risk of harm was minimal – it involved the driver maintaining his position parked at the side of the road to allow the cycle to pass;

4. the social utility of the activity that creates the risk of harm is of no relevance – the utility was being driven for work purposes and there was no reason why the usual precautions of a prudent driver could not have been observed.

66. There was no submission concerning causation, but for the sake of completeness I record that, in relation to s 5D of the Civil Liability Act 2002, the negligence was a necessary condition of the occurrence of the harm and it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.

67. I find for the plaintiff on liability, subject to the question of contributory negligence.

Contributory Negligence

68. The defendant submitted that the court should find that the plaintiff was travelling at 50kph, and that in doing so he was failing to take care for his own safety. Pursuant to s 5R of the Civil Liability Act 2002, the standard of care required of the plaintiff is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the plaintiff knew or ought to have known at the time.

69. I do find that the plaintiff was travelling at 50kph and not 30kph as he asserted in his oral evidence. He said to several people, very shortly after the accident, that he was travelling at 50kph. Further, the speed limit in Dalhousie Street was 50kph and there is no reason why the plaintiff should not have been doing that on a fine clear day. He was riding in a lane which was separated from oncoming traffic by double lines.

70. I find that there was no contributory negligence on the part of the plaintiff. The utility turned across the path of the scooter, when the scooter was almost upon it. The utility gave the plaintiff no opportunity whatsoever to avoid the collision. Further, there is no evidence that if the plaintiff had been travelling at some lower speed, there would not have been an accident. The plaintiff was faced with an emergency braking situation and there was no evidence called to prove that at some lower speed he would have been able to brake and avoid losing control of the cycle or having a collision. The defendant bore the onus of proving those matters and it did not call that evidence or discharge its onus.

71. I find that there is no contributory negligence on the part of the plaintiff and therefore no reason to reduce the judgment to which he is otherwise entitled.

Damages

72. There is no claim for damages for non-economic loss as the plaintiff does not meet the threshold under the Motor Accidents Compensation Act 1999. There is no claim for past or future care and assistance, as such claim was very sensibly abandoned.

73. Certain heads of damage and elements of damage were agreed.

74. The plaintiff’s past economic loss was agreed at $23,816 nett plus superannuation of $2,620, giving a total past economic loss of $26,436.

75. Past out-of-pocket expenses were agreed at $5,303.95.

76. The plaintiff’s current nett weekly wage was agreed at $1,250, which was not the measure of his loss, but which was evidence to be taken into account in calculating his future loss of earning capacity, if any.

77. The plaintiff was born on 8 January 1962 and is presently 56 years of age. He finished school in 1978 in Year 10 and commenced a four year apprenticeship as a mechanical fitter.

78. From 1983 to 1992 he worked as a tradesman on the Oberon class submarines, reaching the position of foreman. In 1992 he worked at Hanimex at Mascot as a maintenance fitter. Between 1992 and 2002 he returned to work at Garden Island doing submarine maintenance work. Between 2002 and 2003 he worked in the Department of Education doing school maintenance. Between 2003 and 2005 he drove buses, due to a lack of continuing work at Garden Island.

79. Between 2005 and 2006 he worked for the Abbey Group as a welder. Between 2006 and 2011 he went back to Garden Island and worked as a fitter and turner until such work ceased in 2011.

80. In 2011 to 2012 he studied to be a strata manager and obtained a qualification.

81. Between 2012 and 2013 he engaged in house painting and driving hire cars. This was casual work.

82. In 2013 he commenced work for Chandler McLeod, which is a labour hire firm. He was a casual, but subject to availability of work, he worked full-time when such work was offered to him. The work he did was for Thales Australia (Thales) again doing naval fitting work at Garden Island.

83. The plaintiff had not worked for about nine months prior to his accident on 20 March 2015. This is because Chandler McLeod had no work for him during that time. The plaintiff had been offered a return to work with Chandler McLeod at Thales on the Monday following the accident but he was unable to take up that position because he was in hospital for several weeks with his shoulder injury. The plaintiff eventually returned to work for Chandler McLeod doing work for Thales, although there was a long period of recuperation before he could do that work. In any event, the figure recited above for past economic loss was an agreed figure.

84. The plaintiff gave evidence that he was still working for Chandler McLeod for Thales doing the naval fitting work. This is heavy work. The equipment upon which he works is very large equipment. Tendered in evidence were photos of a pump cover and a pump impeller. These are huge pieces of machinery. Both photographs show large pieces of machinery attached to chains and chain blocks. Both items have to be lifted evenly from both sides, and thus there are chains at several points around the machinery. Those chains are hauled through the chain blocks by hand which is heavy work. When the equipment is lifted free of its housing, the chain blocks are then attached to a crane which lifts the equipment away.

85. Because of the plaintiff’s shoulder injury, he has difficulty doing this heavy work. He has a sympathetic workplace and fellow workers take over and do the hauling and any other heavy work that he cannot do. The plaintiff said that there are about two occasions per week when there is something he cannot do and other workers have to step in and do his job for him. Nevertheless, he is clearly a valued employee and he has been kept on in that job.

86. Unusually, there were no treating doctors’ reports tendered. The plaintiff tendered two medico-legal reports and the defendant tendered one. All three doctors basically agreed in relation to the plaintiff’s work restrictions.

87. Dr Bodel, an orthopaedic surgeon, reported that x-rays taken at the Royal Prince Alfred Hospital showed a severely comminuted fracture involving the neck of the right scapula and the blade of the right scapula. The plaintiff underwent a surgical procedure under the care of Dr Smithers at the hospital.

88. After a few weeks the plaintiff was discharged home in a sling and treated conservatively with analgesic medication and physiotherapy.

89. The plaintiff returned to work after about six months. Soon after attempting to return to work he lost control of a large hammer he was using which flew across the workplace. He was put off work as it was deemed that he was not safe to be in that work environment. The plaintiff then had more intense physiotherapy for four or five months and was eventually cleared to return to his normal duties. However, he was transferred to plant maintenance rather than shutdown maintenance.

90. Dr Bodel recorded the plaintiff’s complaints as an ache in the posterior aspect of the right shoulder in the region of the surgical scar, generalised weakness in the shoulder with an inability to push, pull, lift or use the right arm overhead, weakness of grip strength and difficulty sleeping on the right side. The only treatment was occasional Panadol. Dr Bodel noted that the plaintiff had to give up golf, soccer and soccer refereeing.

91. Dr Bodel on examination found two surgical scars on the right-hand side resulting from the operation for the fracture of the scapula. He found generalised wasting in the right shoulder girdle particularly on the infraspinatus muscle below the spine of the scapula on the right. There was a restricted range of shoulder movement on the right-hand side.

92. Dr Bodel thought there was no indication clinically to remove the plate and screws which were still in situ. Dr Bodel noted that while the plaintiff had returned to his pre-injury work, he did struggle with the heavy nature of the work as a fitter and turner. Dr Bodel said that he was “inherently incapacitated for full unrestricted work as a mechanical fitter as a consequence of this injury”.

93. Dr Davis, a consultant in occupational medicine, noted the following injuries recorded at Royal Prince Alfred Hospital:

1. comminuted fracture of the right scapula;

2. fractured sternum;

3. fractured right first and second ribs;

4. multiple abrasions and contusions;

5. pneumothorax.

94. Dr Davis made similar findings to those recorded by Dr Bodel. Dr Davis thought that the plaintiff was restricted in work of a weighted or forceful nature, work of a repetitive or sustained nature above mid-chest level, long periods of travel, repetitive reaching, and any activity which involves static loading around his neck or shoulders.

95. Dr Davis offered the opinion that the plaintiff would not be able to continue working full-time as a fitter and machinist after the age of 60, but would decrease his work by 50% and seek early retirement by the age of 65. No reasons were offered for that opinion. Both Dr Bodel for the plaintiff and Dr Mitchell for the defendant offered no such view. I reject that opinion of Dr Davis as it is not supported by reasons, and as the other two doctors expressed no such view.

96. Dr Mitchell, a consultant occupational health physician, examined the plaintiff at the request of the defendant’s solicitors. He accepted that the plaintiff had pain in the right shoulder, together with pins and needles in the right arm at times. The neck was often stiff, particularly on the right side. Dr Mitchell also found restriction of movement in the right shoulder. There was pain and reduced movement in the right shoulder.

97. Dr Mitchell offered the following view about capacity for work:

“Mr De Ceglie has a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, he should be able to manage such work on a full-time basis.

Mr De Ceglie should manage all physical activities undertaken below mid-chest height and close to the body trunk, particularly if repeated or sustained in nature;

Fixed and awkward head, neck and spinal postures generally should be avoided and frequent posture movement should take place throughout the day.”

98. No doubt that is good advice, but it is simply not possible for a fitter doing work of the kind which Mr De Ceglie does to observe those limitations.

99. Dr Mitchell accepted that the plaintiff had ongoing pain and reduced movement in the right shoulder and to a lesser extent the lower neck. Dr Mitchell thought that the only future medical treatment was analgesic medication.

100. Thus it can be seen that there was a large degree of agreement between all three specialists about the reduced ability of the plaintiff to perform his chosen occupation.

101. The submission was made that the plaintiff could use his other skills. For example, he had obtained qualifications in strata management and had done some work in that field. I accept the plaintiff who said that he could only earn about $600 per week in that occupation, as opposed to the agreed figure of $1,250 nett as a fitter and turner.

Future loss of earning capacity

102. Pursuant to s 126(1) of the Motor Accidents Compensation Act 1999 I find that the plaintiff’s most likely future circumstances, but for the injury, are that he would have worked as a fitter until age 67.

103. Pursuant to s 126(3) I find that the plaintiff has a reduced capacity for work. While he is employed by Chandler McLeod at Thales his deficiencies are accommodated by fellow workers. However, if he were thrown onto the open labour market, he would have difficulty getting a job as compared to a completely able-bodied fitter of his age.

104. There is no way to predict how much work will be available with Chandler McLeod at Thales. That work has dried up in the past and it could dry up again. Then again, that work could continue for the rest of the plaintiff’s working life, which is another 11 years until 67 years of age.

105. The plaintiff may well have periods away from work in the future if the Thales work periodically dries up. However, that loss cannot be laid at the feet of the defendant.

106. However, there must be compensation for the plaintiff for his reduction in future earning capacity. The matter can be approached in one of two ways. The court can select a weekly figure, or it can simply award a lump sum “buffer”. This latter approach has been approved in many cases by the Court of Appeal.

107. However, since there is a figure which measures his present earning capacity at $1,250 per week, I propose to select the figure of $150 per week to reflect the reduction in future earning capacity. Even if the plaintiff loses his employment with Chandler McLeod and Thales, he is not unemployable. However, he would be a less attractive proposition on the open labour market than an able-bodied fitter.

108. The multiplier for 11 years on the 5% tables is 444.1. The calculation for future loss of earning capacity is: $150 x 444.1 = $66,615. I do not make any additional discount for vicissitudes in that figure. The selection of $150 per week already takes into account such vicissitudes.

109. To that will have to be added superannuation at 11%. The calculation is $66,615 x 11% = $7,327.

110. The total for future loss of earning capacity is $66,615 + $7,327 = $73,942.

Future out-of-pocket expenses

111. The only future out-of-pocket expense likely to be incurred is analgesia. The plaintiff said that when he has pain at the end of the day he takes non-prescription analgesics. The cost of these is $4.00 per week. He will only need these until stops his heavy work at age 67.

112. The calculation is: $4.00 x 444.1 = $1,776.40.

113. I do not allow any physiotherapy, as neither Dr Bodel nor Dr Mitchell think that it is necessary this long after the accident. I do not allow anything for any further surgery, as Dr Bodel, an orthopaedic surgeon, thinks that there is no need for removal of the plate and screws. There was no evidence that these are causing any problem.

114. In summary the plaintiff’s damages will be:

Head of Damage	Amount
Past out-of-pocket expenses	$5,303.95
Future out-of-pocket expenses	$1,776.40
Past economic loss	$26,436.00
Future loss of earning capacity	$73,942.00
TOTAL	$107,458.35

Orders

115. My orders are:

1. Judgment for the plaintiff against the defendant for $107,458.35.

2. Order the defendant to pay the plaintiff’s costs.

3. Grant liberty to the parties to approach my Associate within 7 days if any different costs order is sought by either party.

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Decision last updated: 19 July 2018