Denis Crowther t/as Top Gun Cycles Nominal Defendant
[2006] NSWLC 2
•10/02/2006
Local Court of New South Wales
CITATION: Denis Crowther t/as Top Gun Cycles Nominal Defendant [2006] NSWLC 2 JURISDICTION: Civil PARTIES: Denis Crowther t/as Top Gun Cycles
Nominal DefendatnFILE NUMBER: 111621 of 2005 PLACE OF HEARING: Balmain Local Court DATE OF DECISION:
02/10/2006MAGISTRATE: Magistrate H Dillon CATCHWORDS: Workers compensation - Recovery action - Assessment of quantum LEGISLATION CITED: Motor Accidents Act 1988 s 79
Workers Compensation Act 1987 s 151 Z (1) (d)CASES CITED: Medlin v State Government Insurance Commission (1995) 182 CLR 1 REPRESENTATION: Mr M.J Jenkins instructed by Turkslegal Solicitors
MR P Garling SC instructed by Holman Webb SolicitorsORDERS: 1. Verdict for the plaintiff in the sum of $14,862.01 plus interest calculated from 17 June 1999 by the Registrar pursuant to s 100 Civil Procedure Act. Judgment accordingly.; 2. Costs to follow the event in a sum agreed or assessed.
Judgment
1. The plaintiff’s action in this matter is brought pursuant to s.151Z(1)(d) of the Workers Compensation Act 1987 seeking recovery of a sum paid in workers’ compensation to a bicycle courier, Mr James Morley, who was injured in an accident near the Queen Victoria Building in George St, Sydney on 13 September 1991.
2. On 9 December 2005, I gave reasons for deciding that there ought be a verdict for the plaintiff. The issue of quantum, however, was left open as I had not received submissions from the defendant on that question. Both parties have now ventilated their respective positions in relation to that issue.
3. The plaintiff claims a sum of $19,249.50 in respect of workers’ compensation paid, together with interest pursuant to s.100 of the Civil Procedure Act 2005.
4. The plaintiff submits that Mr Morley suffered non-economic loss of 22 per cent of the most severe case. This is based on a life expectancy of about 40 years, a balance of working life of about 27 years and the prospect of suffering post-traumatic osteoarthritis together with continuing but modest discomfort in his right elbow when doing certain things.
5. The defendant argues that no award ought be made in respect of non-economic loss as there is no evidence that Mr Morley’s ability to lead a normal life was, or is likely to be in the near future, significantly impaired for a continuous period of less than six months due to his accident. (See s.79(1)(b) of the Motor Accidents Act 1988.)
6. Past economic loss is agreed at $1940, being net loss of earnings for four weeks. The loss of superannuation for that period is also agreed.
7. The plaintiff submits that future economic loss, based on the permanency of Mr Morley’s condition and the continuing complaints of disability from which he suffers, especially in relation to heavy lifting, ought be assessed on the basis of a net loss of $300 per week due to osteoarthritis for a period of five years deferred for 22 years. Applying the relevant discount tables, this comes to $20,189.16. In the alternative, a claim based on Medlin v State Government Insurance Commission (1995) 182 CLR 1, is made a to a “cushion” of $20,000.
8. The defendant contends that there is no basis for an award in respect of future economic loss as Mr Morley has been continually employed since his recovery from the accident, has had no treatment for his injuries since 1991 and has been able to lift speaker boxes with relatively little discomfort in his profession as an audio engineer.
9. Past medical expenses are agreed at $1954.17.
10. In relation to future medical expenses, the plaintiff submits that a small allowance of, say, $3000, ought be allowed. The defendant disputes that there is any basis on which any award for future medical expenses ought be made.
11. A claim is also made to superannuation entitlements based on grossing up past and future economic losses at the rates of 8 per cent for past loss and 9 per cent for future loss. The submission is that the relevant sums be grossed up by multiplying them by 120 per cent. The claim is therefore to a sum of $2366.67.
12. No Fox v Wood component is claimed, nor is there any claim for past or future domestic assistance.
Assessment
13. The accident took place on 13 September 1991 and notional damages are therefore assessable under the provisions of the Motor Accidents Act 1988.
Non-economic loss
14. Section 79 of the Act governs awards in relation to non-economic loss caused by accidents occurring prior to 26 September 1995. Section 79 (1B) places a significant limitation on a court’s powers to make such an award. It provides:
No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person’s ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 6 months by the injury suffered in the accident.
15. The Act states that the object of s.79 is “to limit the amount of damages for non-economic loss in cases of claims relating to relatively minor injuries, in order to achieve the object of the Act of more fully compensating those with more severe injuries at a cost the community can afford to meet.” The court is required to bear that object in mind in assessing any claim for non-economic loss.
16. The plaintiff must therefore prove significant impairment on the part of the worker for a period of at least six months as a result of the injury.
17. The relevant injury was an undisplaced fracture through the head of the right radius, with an avulsion injury of the capitellum of the humerus and large elbow joint effusion. There is no doubt that the injury was a significant with potentially serious consequences for Mr Morley’s recovery and rehabilitation. Nevertheless, all the medical evidence, as well as Mr Morley’s own testimony, which was characterised both by frankness and a complete absence of self-pity, indicated that Mr Morley made an excellent recovery and was able to return to work relatively quickly. This is, no doubt, a tribute both to the skill of the people who treated Mr Morley and to him.
18. Although at common law there would be a substantial award for non-economic loss in this case, I am not satisfied on the evidence that significant impairment for a period of at least six months has been proven and therefore no award can be made in that respect.
Future economic loss
19. Mr Morley was off work after his injury for four weeks only. He has worked virtually full-time, apparently without any material impediment, since his recovery in 1991. He does, however, face the prospect of osteoarthritis in his elbow. Of course, there is a degree of speculation involved in such a consideration but the medical advice tendered in the reports suggest that his chances of osteoarthritis are increased as a result of the injury. The condition is permanent and Mr Morley is a professional sound engineer, an occupation which requires the lifting and moving of heavy equipment. There is therefore a material possibility that he will have a foreshortened working life. Some allowance ought therefore be made in respect of future economic loss or loss of earning capacity. The common law applies to accidents occurring before 26 September 1995.
20. At the time of the accident, Mr Morley was earning $485 net per week. In my opinion, it would be reasonable to accept a figure in the order of $300 per week as the estimated loss but to estimate that the loss of earnings would be for two years. I base that assessment on Mr Morley’s strong recovery, his apparent robustness and his generally optimistic and active way of life.
21. I would assess the loss in the following way: $300 net per week x 99.4 (two years, 5 per cent discount table) x 0.295 (deferred 25 years, 5 per cent tables) x 85 per cent, a total of $7474.37.
Past economic loss
22. This is agreed at $1940.00.
Past medical expenses
23. This is agreed at $1954.17.
Future medical treatment
24. If, as may well be the case, Mr Morley suffers the onset of osteoarthritis in his arm as a result of the injury, he is likely to require treatment for that, especially while working. I would allow $2500.00.
Loss of superannuation entitlements
25. Loss of past entitlements is agreed at $186.24. The loss of superannuation entitlements in relation to future economic loss is calculated in the manner proposed by the plaintiff but on the sum of $7474.37. It comes to a total of $807.23. The assessment in respect of loss of superannuation is therefore $993.47.
Conclusion
26. The plaintiff is therefore entitled to an indemnity in the sum of $14,862.01.
Interest
27. The plaintiff makes a claim to interest on the sum to which it is entitled to be indemnified for a period of about six years. The defendant contends that the Court ought exercise its discretion in relation to any order for interest on the basis that the plaintiff delayed commencing proceedings almost to the conclusion of the limitation period. The riposte to that is that the defendant has had the benefit of the moneys, accruing interest or being used for profitable purposes, for the period concerned. I note that the majority of the moneys were paid on 17 June 1999. I will allow interest to be calculated from that date.
Verdict and judgment
28. There will be a verdict for the plaintiff in the sum of $14,862.01 together with interest to be calculated by the Registrar from 17 June 1999 pursuant to s.100 of the Civil Procedure Act. Judgment accordingly.
Costs
29. The defendant advances an argument that the ordinary rule as to costs ought be displaced because of the fact that this case was randomly selected by the parties as a “test case” and because it succeeded in its argument concerning the principles concerning due search and inquiry, notwithstanding the ultimate acceptance by this Court that the test had been complied with by the plaintiff.
30. Be that as it may, both parties combined to bring this matter before the Court. The defendant was certainly successful in its legal argument but nevertheless failed in relation to the facts of the case. In my view, the ordinary rule that costs follow the event ought apply. Costs will be in a sum agreed or assessed.
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