| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DUNCOMBE -v- LEIGHTON CONTRACTORS PTY LTD [2002] WADC 83 CORAM : WILLIAMS DCJ HEARD : 23, 24, 26 & 27 APRIL 2001 AND 25, 26 & 27 FEBRUARY 2002 DELIVERED : 1 MAY 2002 FILE NO/S : CIV 3752 of 1999 BETWEEN : JOHN REGINALD DUNCOMBE Plaintiff
AND
LEIGHTON CONTRACTORS PTY LTD
Defendant
Catchwords: (1) Negligence - Employer and employee - Water cart sliding over whilst watering down ramp
(2) Assessment of damages - Plaintiff suffering a burst fracture of first lumbar spine
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
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Result:
Plaintiff entitled to judgment against the defendant Representation:
Counsel:
Plaintiff : Mr I L K Marshall
Defendant : Mr J P T Olivier
Solicitors:
Plaintiff : Paul O'Halloran
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Commissioner for Railways v Ruprecht (1979) 142 CLR 563
Duzevich v Carrier Air Conditioning Pty Ltd [2000] WADC 277
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
McLean v Tedman & Anor (1984) 56 ALR 359
Tomlinson v Thomas [1999] WADC 119
Wyong Shire Council v Shirt & Ors (1980) 29 ALR 217
Case(s) also cited:
Nil
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WILLIAMS DCJ:
Introduction 1 On 20 September 1997 the plaintiff, whilst acting in the course of his employment with the defendant at Mt McClure via Leinster, was driving a Ford Louisiville L8000 water truck down a ramp when it went over a wet area of the ramp causing the back of the water cart to slide sideways to the left and to roll over on its side as a result of which the plaintiff sustained an injury to his back. 2 The plaintiff alleges the accident was caused by the negligence and/or breach of statutory duty and/or breach of contract of employment of the defendant. The defendant denies liability and further says that the plaintiff's accident was caused by or contributed to by his own negligence. 3 There were numerous allegations of negligence but essentially the plaintiff was alleging that the defendant was negligent in four respects. Firstly it was said that the ramp contained too much clay and was unstable in the condition that it was. Secondly the ramp was incorrectly cambered. Thirdly the slope was too steep. Fourthly that watering the ramp whilst descending the ramp was an unsafe practice.
Evidence of the plaintiff 4 The plaintiff was born on 18 October 1944. Since turning 18 years of age he has been a truck driver for all of his working life driving semi-trailers, road trains and trucks. He had worked for the defendant between 10 November 1992 and 28 August 1993, 2 and 4 September 1993 and 11 October 1993 and 30 April 1994. Prior to his accident on 20 September 1997 he had been in the defendant's employment since 6 May 1994. For approximately two years he was a road train driver. The plaintiff commenced duties driving the water truck at Mt McClure approximately 12 months before his accident. He had driven a water truck in his previous employment with the defendant but that involved road watering and this was the first occasion on which he had been watering ramps. The object of watering was the suppression of dust. 5 The defendant operated the mine site at Mt McClure. It was an open pit operation and involved the use of a number of ramps down into the pit area.
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6 On Saturday 20 September 1997 the plaintiff commenced work at 6.00 am. The plaintiff considered himself responsible to the project manager on site, a Mr Leon Taylor. There was in fact no day shift operating on that day as Mr Taylor had sent the other employees back to camp because of a machinery breakdown. The plaintiff was kept on to keep the dust down and was told to water down the dumps. At about 2.30 pm he commenced to water the ramp in question. This was a temporary ramp. It was put there to widen the pit. The ramp was only used to bring waste out of the pit. After he ran out of water he filled the truck at the Calista Standpipe. He then returned to the pit and watered the roads about the pit. The water truck holds approximately 13,500 litres and weighs approximately 22 tonne. He described the water truck as being about half full. He came down the haul road to approach the ramp. According to the plaintiff he stopped at the stop sign and put the truck into second gear. He looked down the ramp and considered that it was dry enough to re-water. He was travelling at approximately five kilometres per hour and had travelled approximately 40 metres down the ramp when the back of the truck commenced to slide to the left. He turned the wheel to the left in an attempt to correct the back sliding to the left. The truck stopped and then rolled onto its left hand side. At that stage it was facing across the ramp.
7 The plaintiff braced himself and tried to hold onto the steering wheel. When he released his seat belt he fell to the passengers door. He felt a severe pain in his back when he climbed out of the truck but is unable to say when his injury occurred. 8 According to the plaintiff there was approximately 25-30 minutes between the two waterings of the ramp. He described the ramp as being in reasonable condition although it had not been sheeted. He described sheeting as the application of laterite or gravel by a dump truck which is then levelled by a grader. He described the ramp as a clay type soil. It was dry when he started at 2.30 pm. He decided to water it continuously to obtain an even layer of water. He continuously watered all the way down and back on the first occasion. On the second occasion the ramp looked dry enough to re-water.
Other evidence called by the plaintiff 9 Mr Lindsay Sargent was employed as a dump truck driver at Mt McClure by the defendant from May 1997 for a period of approximately 12 months. He described the ramp as a temporary ramp having been constructed to remove a slip area. He described the ramp as
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being of a laterite material which he described as being slippery when wet. He described sheeting as the placing of more material on the ramp to make it an all weather ramp. The material would be a hard blue rock material. There were no all weather ramps on the mine site. He described tyning as a practice whereby graders scarify the surface of the ramp to allow water to be absorbed into the ground. He was not aware of any tyning taking place at the ramp prior to the plaintiff's accident. 10 When shown Exhibit "1", photo 1 showing where the plaintiff's water truck had overturned, he stated the camber was higher on the windrow side than the high wall side. He negotiated the road slowly because he experienced slipping because of the camber of the road. 11 Ms Carmel Dietrich was employed by the defendant in 1996 and worked at Mt McClure for 12 months commencing in 1997 as a site clerk and a relief water cart driver. She was not able to say if there were any problems with the ramp but described its surface as a lot more slippery than other ramps. 12 Mr Neil Leckie was employed by the defendant at Mt McClure in January 1995 initially as a dump truck driver and then on the water cart and grader. On the day of the accident he was due to start nightshift at 6.00 pm. Following the accident he went to the accident scene. He estimated he arrived within 20 minutes of the accident occurring. He was shown Exhibit "1" being the photos of the accident scene. He described what is seen in those photographs as what he observed. He observed the water and the marks left by the truck. He described the water as having run off to the windrow side following the camber then going down the ramp and finding its way to the other side. That indicated to him that the ramp was not a true grade. 13 Mr Leckie had used that ramp previously. He described it as put in to deal with a slippage. The surface consisted of cap rock, laterite and clay. He described the surface as "quite slippery" and "glazed" where the soil had compacted. He was there from the ramp's inception and he did not recall any sheeting or tyning of the ramp. The majority of the surface was clay and that could be a problem when over-watered. It was standard practice to continuously water when the dump trucks were not operating. 14 According to Mr Leckie on a number of occasions he raised with Mr Leon Taylor, the project manager, the fact that the camber was too steep causing trucks to slide to that side.
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15 Mr Shane Richard commenced working for the defendant at Mt McClure in April 1976. In September 1977 he was an excavator operator.
16 On the date of the accident he was due to commence work at 6.00 pm. He and the rest of the crew were driven down the ramp sometime before 6.00 pm when it was still daylight. They had an inspection at the site of the accident. He described the ramp as glazy, looking slippery and generally in poor condition. It was rarely graded, tyned or sheeted in any acceptable form. He was of the view that the entire ramp was clay which became extremely slippery when wet. He considered that the camber was in the wrong direction and that was indicated by the fact that the water from the truck had run off to the high wall. 17 Mr Andrew Van Der Meer is a consulting engineer. He graduated with honours from the University of Western Australia in 1970, completed a Masters of Engineering Science in 1973 and set up as a consulting engineer in 1979. 18 He has been visiting mine sites since 1976. He has often visited pits, had designed haul roads and carried out soil tests in relation to designing roads. 19 In his report of 17 January 2001 he sets out the material on which he relied in coming to his conclusions. Mr Van Der Meer was of the opinion that there were three main contributory reasons for the truck sliding out of control as it did.
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3. The fact that the truck was watering as it was going down hill contributed to the accident. In certain parts of the slope water could be running under the wheels of the truck as it was descending slowly down the hill. 7000 litres is seven tonnes of water. The centre of gravity would be behind the front wheels. The truck wants to go sideways. The truck is inherently unstable. 20 Mr Van Der Meer was of the opinion that the defendant could have carried out certain measures to reduce the risk of the accident occurring: (a) The defendant could have surfaced the ramp especially on steeper parts of the ramp with a more suitable road base material such as a graded crushed rock. The skid marks were far too smooth. The application of crushed rock to the ramp increases a co-efficient of friction between the tyres and surface significantly increasing the resistance of sliding of tyres on a surface. (b) The defendant could have correctly constructed the ramp with more friendly slopes which would be more conducive to vehicular traffic. The ramp radius for that slope was far too sharp. The ramp should have had a smaller curvature. The ramp could have been constructed with a more gradual arc. (c) The defendant could have instructed the plaintiff only to add water to the ramp as he was driving the truck up the ramp rather than driving down the ramp. When watering up the ramp the centre of gravity of the truck is below the
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front wheels. The truck has a much more stable configuration if it is watering up the hill. 21 Mr Van Der Meer had seen the report of Mr Ivan Saracik dated 10 April 2001. He had the following comments: As to par 5(f) Mr Saracik's calculation of a slope of 10.2 per cent was based on calculations in a drawing with a scale of one to 1000. His calculations could be in error by as much as 30 per cent. Ramps are usually built up to the limit of 12 per cent. As to par 5(m)(iii) The skid marks show a lot of clay in the ramp. It is a very smooth skid mark confirming there was a high degree of clay in the ramp. As to par 5(n) It is very difficult to over-water a proper road as the water usually runs off to the side. As to par 6 The colour where the water has washed below the truck is similar to the clay below the laterite on the high wall.
Evidence for the defendant 22 Mr Ivan Saracik is a mechanical engineer and a consultant to the mining industry with 30 years' experience in project construction and contract management. 23 In relation to Mr Van Der Meer's assessment that the ramp was constructed to an approximate longitudinal grade of 12 per cent, Mr Saracik made his own calculations from Exhibit "2" and concluded that the "grade of the 115m section haul ramp terminating at the point of this incident is an average of 10.2 per cent." 24 With respect to Mr Van Der Meer's assessment that the truck rolled over and slid further down the ramp until it came to a complete halt, Mr Saracik was of the view that it slid less than three metres. He would have expected the truck to slide some 10 – 12 metres if the ramp had been slippery. 25 With respect to Mr Van Der Meer's opinion that a clay soil on road surfaces will render the road surface extremely slippery if sufficient water
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is added to the road surface, Mr Saracik was of the view that a clay surface only becomes slippery if excess water is added. 26 It was Mr Saracik's view that the surface was a reddish laterite surface and not clay. 27 It was Mr Saracik's opinion that: (a) The surface was laterite and there was no evidence of a high proportion of clay at surface. (b) There was no evidence of camber being incorrect or less than optimised. (c) Watering down grade is an industry standard activity which can be carried out in total safety, if done appropriately. 28 Mr Van Der Meer and Mr Saracik placed the final resting place of the truck on the ramp as depicted in Exhibits "2" and "2A", although Mr Saracik was of the view that the truck finished up some 40 metres further down the ramp than Mr Van Der Meer. They both marked on plans (Exhibits "2" and "2A") where they say the truck finished up. 29 Mr Lee Junk is a senior mining engineer. In September 1997 he was a senior mine surveyor at the site. It was his evidence that the ramp was not as exhibited in Exhibits "2" and "2A". The reason for this was because there had been a slip in the western side of the pit sometime prior to the accident and that a new ramp had been prepared. Following the accident he had prepared a sketch which is part of Exhibit "16A" that depicted the accident scene. That sketch shows the co-ordinates as to where the accident occurred and that plan puts the accident as having occurred outside the pit. 30 This evidence was notwithstanding the fact that on 22 February 2002 Mr Junk had written a letter to the defendant's solicitors (Exhibit "18") certifying that a photocopy of Exhibit "2A" was prepared by him and that it was true and correct in all respects. 31 This evidence was given towards the end of the trial and only came to the note of counsel for the defendant on the morning on which it was given. Mr Van Der Meer sat in on this evidence. He was recalled on this point. He had heard Mr Junk's evidence about the co-ordinates and that the ramp had been widened by removing dirt from the highway. He did not accept that evidence. It was his view that Exhibit "2", Plates 2 and 9, showing the weathered face show that the face in the foreground is older
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than the face in the background and that there had been no need to change the top section of the ramp. It was his evidence that the co-ordinates are in error. 32 I was most impressed with Mr Van Der Meer as a witness and I accept his evidence on this point. It was almost the last day of evidence when this assertion was made by Mr Junk. It flies in the face of Exhibit "18" and I am not prepared to accept Mr Junk's evidence on this point. 33 Mr Leon Taylor was the project manager responsible for the administration of the contract in September 1997. He also gave evidence of a slip having occurred in May 1997 which required a cut back which linked into the then existing ramp. The existing ramp was used to start the new cut back. 34 On the day of the accident he travelled to the accident scene. Prior to the accident he could not recall any complaints about the surface of the ramp which he described as a laterite-gravel material with clay below. On that day the dayshift did not work and the plaintiff was instructed to carry out water cart duties from 6.00 am to 6.00 pm. The ramp was not being used by traffic and it was necessary to give it a good watering. In a report of 24 September 1997 (Exhibit "10"), Mr Taylor stated that "the camber of the corner caused truck to slide to the left." He stated in evidence that was a true statement. In his report he stated that the surface was "clay/gravel" which had been recently watered and that the water truck had travelled 80 metres down the ramp when the wheels started to slide. 35 In an Investigation Report (Exhibit "20") dated 22 September 1997, Mr Taylor stated the major cause of the accident was "Following site accepted practice rather than standard site procedures (written down)". Under the heading "What action has been taken to prevent a recurrence" Mr Taylor has written: "The operators have been instructed to follow written procedures rather than the previous accepted standard. The old site standard is now deemed unacceptable." 36 Mr Taylor agreed that this ramp was continuously watered prior to the accident and that was tolerated by management and that following the accident, work procedures were changed.
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The law applicable
37 The duty imposed upon an employer at law for the safety of employees was stated by the High Court in McLean v Tedman & Anor (1984) 56 ALR 359. In a joint judgment Mason, Wilson, Brennan and Dawson JJ said at p 363: "The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence (Wheare v. Clarke (1937) 56 CLR 715 at 723; Henwood v. Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 444). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk." 38 As to whether or not a risk of injury is foreseeable, Mason J in Wyong Shire Council v Shirt & Ors (1980) 29 ALR 217 at p 221 said as follows: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The
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perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
The issues 39 The issues that arise to be decided therefore are firstly whether the risk that the water truck might overturn in the circumstances in which it did was reasonably foreseeable. If that question is answered in the affirmative the second issue is to determine what a reasonable employer should do in response to the risk. The third issue is whether the plaintiff has been guilty of contributory negligence.
Findings 40 I accept the evidence of the plaintiff as to how the accident occurred. There is no other evidence to suggest that his evidence is other than correct. 41 It is the plaintiff's assertion that there are three causes of the accident:
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described it as a "clay-gravel road". I do not accept Mr Saracik's opinion that the surface was a reddish laterite surface and not clay. Exhibit "1" does not support that proposition at all. The defendant could easily have guarded against this risk by surfacing the ramp with a more suitable road base material such as graded crushed rock. There is no evidence that this took place on this ramp. It was clearly foreseeable that an accident of the kind that did occur could occur. In my view the defendant was negligent in this respect. 2. The ramp was incorrectly cambered and the slopes were too steep for the watering operation to be safely carried out. Again I accept the evidence of Mr Van Der Meer on this point. The curvature in the ramp increases the grade at the inside of the curve. This increased the slope substantially. This can be seen from the photographs in Exhibit "1". It is also the reason for the adverse camber at that section of the ramp. That is the reason that the accident occurred at that section of the ramp. There can be no dispute about the adverse camber otherwise the water would not have run across the road. Other witnesses also described the ramp as being slippery. Mr Taylor in his report described the camber of the corner as being the cause of the truck sliding to the left. The defendant could have correctly constructed the ramp with more friendly slopes which would be more conducive to vehicular traffic. The ramp should have had a more gradual arc. It was clearly foreseeable that an accident of the kind that occurred could occur. In my view the defendant was negligent in this respect. 3. The fact that the truck was watering as it was going down hill contributed to the accident. The evidence does not support the plaintiff in this respect. However, it is clear that the previously accepted standard was to continuously water. It was Mr Taylor's evidence that the ramp was not being used by traffic on that day and it was necessary to give it a good watering. Following the plaintiff's accident Mr Taylor stated in his report that the operators were
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instructed to follow written procedures which involved spot watering and not continuous watering. The continuous watering certainly contributed to the accident. There was ample evidence that the ramp was wet and slippery. It is clear that continuous watering was contrary to the written methodology (see Exhibit "4") but had been allowed by management. In my view it was clearly foreseeable that in those circumstances that an accident of the kind that did occur could occur. In my view the defendant was negligent in letting this manner of operation develop. 42 It follows in my view that the defendant has breached its duty of care to the plaintiff and is negligent and liable to the defendant in damages.
Contributory negligence 43 The principles applicable to the determination of contributory negligence were expressed as follows by Mason J in Commissioner for Railways v Ruprecht (1979) 142 CLR 563 at 570: "Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611); and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. None the less it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable or prudent man, he would expose himself to risk of injury - see eg Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37." 44 In my view there has been no contributory negligence on the part of the plaintiff. The plaintiff was merely carrying out the instructions of his employer in accordance with the then current practice.
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Assessment of damages
Injuries 45 According to the plaintiff he was taken by ambulance to the first aid post and from there by Royal Flying Doctor to the Kalgoorlie Regional Hospital. 46 There is no medical report from the Kalgoorlie Regional Hospital however a First Medical Certificate (part of "Exhibit 13") signed by a Dr Monk of the Royal Flying Doctor Kalgoorlie indicates his injury as being a "burst fracture first lumbar spine". 47 Mr Trinajstic, an orthopaedic surgeon, first saw the plaintiff at Sir Charles Gairdner Hospital on 1 October 1997 in the out-patient department and admitted him. He was discharged on 15 October 1997. 48 Dr Graziotti is a pain medicine specialist. His report of 9 April 1998 is the first report of any treatment administered to the plaintiff. In that report he states that the plaintiff has had multiple treatments including physiotherapy, TENS, anti-inflammatories and Amitriptyline and recently facet joint injections from T12 to L2 all without benefit. His x-rays revealed a Grade 111 compression fracture of L1, a Grade 111 wedge fracture of L1 and osteoparia. 49 Mr Trinajstic’s report of 3 June 1998 indicates that the plaintiff underwent a crush fracture of L1. 50 His current problem at that time was one of back pain. He had no leg symptoms whatsoever. Mr Trinajstic felt that the plaintiff would be suitable to return to some form of work as a water cart driver initially at four hours per day with up to four hours of lighter duty.
Employment history 51 The plaintiff left school at 14 years of age. Since 18 years of age he has been driving semi-trailers, road trains and trucks for all of his working life up until the time of his accident.
Loss of amenities 52 The plaintiff claims damages for loss of amenities being pain and suffering and loss of enjoyment of life both past and future.
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53 The plaintiff described his initial pain state on a scale of one to 10 as 10 at the mine site, nine in Kalgoorlie Regional Hospital and still very bad at Sir Charles Gairdner Hospital. He spent some 5-6 months in a brace and was on morphine for approximately 12 months. Thereafter he was on Panadeine Forte and now takes Panadeine. The pain is confined to his lower back and not referred to the legs. He presently resides in a Homeswest unit in Geraldton. There is very little that he can do and he gets help with his domestic activities. He is able to do his shopping.
54 He is able to drive a motor vehicle. He has become very depressed although he has not seen fit to consult a psychiatrist. He described himself as a happy go lucky person before his accident who enjoyed fishing and dancing but has had no social life since his accident. 55 He returned to work for the defendant for a work trial. He persevered for three weeks but was unable to cope. 56 At the present time he has breathing problems and has consulted a physician. 57 According to the plaintiff he is not able to participate in a full sex life "because my back gives me trouble, and that's why I do not want to get involved in a relationship". I am unable to accept the plaintiff's evidence on this point. It is clear from the Mends Street Medical Notes (Exhibit "12" tendered by the plaintiff) that he has had prescriptions for Viagra on 28 October 1998, 11 November 1998, 10 December 1998 and 28 January 1999. Dr R d'Scarlet, the plaintiff's general practitioner, described the prescription of Viagra as being for males who wish to maintain an erection and who are intent on having sexual intercourse (T284-6). I accept Dr d'Scarlet's evidence on this point. This would indicate to me that the plaintiff is exaggerating his symptoms. 58 Dr d'Scarlet is a general practitioner. He saw the plaintiff between 9 November 1997 and 10 July 1998. He was seeing him every month or so and prescribing analgesia and providing progress medical certificates. 59 In his report of 9 April 1998 Dr Graziotti noted that he was tender around the T12/L1 area with a full range of movement of lumbar and thoracic spine. 60 In his report dated 3 June 1998 Mr Trinajstic felt that the plaintiff would be "suitable to return to some form of work as a water-cart driver, initially starting at a fairly low level of up to 4 hours per day with up to 4 hours per day of lighter duty".
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61 Dr Andrew G Harper is an occupational physician. He saw the plaintiff on 28 July 1998. On palpation there was tenderness at the level of the L1 principally to the left side of the vertebral body and to a lesser degree at the level of L2.
62 In a report of 15 September 1998 (one year after the plaintiff's accident) Mr Trinajstic considered that it was unusual for the plaintiff to be getting pain that far down the track. 63 Mr Trinajstic gave evidence at trial. He confirmed that he had last seen the plaintiff in September 1998. He considered that the plaintiff's history was consistent with his injury. He considered that his endurance would improve with regular exercise and mobilization and if he gave up smoking. Even then he would still have trouble lifting and carrying. 64 Dr Graziotti gave evidence at trial. He performed facet joint injections between 19 March and 9 April 1998 and an epidural on 9 April 1998. The plaintiff was now left with conservative measure such as exercises. He considered that the plaintiff's disability was 20 per cent of the thoraco-lumbar spine. He had not seen the plaintiff for three years. 65 Dr Harper also gave evidence at trial. He assessed the plaintiff as having a 25 per cent loss of effective function of the thoraco-lumbar spine which resulted in a 25 per cent disability of the whole of the body. Dr Harper considered that the plaintiff's emphysema was a contributing factor. His respiratory condition would preclude him from manual work. 66 Mr Desmond Williams, an orthopaedic surgeon, gave evidence at the trial. Mr Williams considered the plaintiff had a permanent residual disability. There was no indication of surgery. Fitness and exercise was the appropriate management. 67 Pursuant to s 3C(3) of the Motor Vehicle (Third Party Insurance) Act 1943 I am required to assess non-pecuniary loss as a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. The maximum amount of damages that may be awarded for non-pecuniary loss at the present time is $232,000. 68 I am of the view that the plaintiff's non-pecuniary loss should be assessed on the basis of 20 per cent of a most extreme case. 20 per cent of a most extreme case is $46,400.
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69 I allow the plaintiff the sum of $46,400 for loss of amenities being pain and suffering and loss of enjoyment of life both past and future.
Past loss of earning capacity 70 The plaintiff claims damages for past loss of earning capacity. 71 According to the plaintiff he did a work trial with the defendant after his accident. He persevered for three weeks but was unable to cope. He also spent a period of time checking light bulbs and the reticulation system in a block of two units. Apart from that he has been unable to work since his accident. He has been on a support pension since 26 November 1998. 72 In his report of 3 June 1998 Mr Trinajstic reported that he felt the plaintiff would be suitable to return to some work as a water cart driver, initially starting at a fairly low level of four hours per day with up to four hours per day of lighter duty. Mr Trinajstic last saw the plaintiff in September 1998. In evidence he stated that if the plaintiff gave up smoking and got himself a bit fitter that would assist him greatly. Mr Trinajstic considered that even if he did those things he would still have trouble lifting and carrying and prolonged standing or sitting for more than a couple of hours. 73 In his report of 23 April 2001 Dr Graziotti stated that the likelihood of the plaintiff returning to full-time work was low. There was a possibility of him returning to sedentary work, but this outcome was highly unlikely. 74 Dr Harper described the plaintiff as debilitated but he could not separate out contribution to that from his lumbar fracture and the emphysema. The emphysema is a contributing factor. 75 Mr Williams did not think that the plaintiff would ever get back to truck driving activities. His work capacity was in the sedentary area where he was mobile but not involved in any stresses on the spine. 76 Dr John Upham is a respiratory physician. In a report dated 19 September 2000 he indicated that the plaintiff had a severe chronic airflow limitation secondary to emphysema. By reason of that condition he expected that the plaintiff would not be able to work beyond the age of approximately 62 or 63 years of age.
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77 The plaintiff's claim for past loss of earning capacity including interest on past loss of earning capacity and loss of living allowances is $213,801.03 in accordance with schedule "A" annexed to these reasons for judgment.
78 The defendant makes no objection to the schedule except for Item 4 where the defendant says the weekly rate should be $210 per week. That was the evidence of Mr Taylor and I accept that evidence. 79 I direct the parties to prepare another schedule of past loss of earning capacity on the basis of this finding.
Future loss of earning capacity 80 The plaintiff claims future loss of earning capacity in the sum of $377,397.02 in accordance with the schedule annexed to these reasons and marked "B". 81 It is the submission of counsel for the defendant that the evidence of Dr Harper and Dr Upham was that the plaintiff would be unlikely to have worked beyond age 60 in any event and that the figure for future living allowance should be the sum of $210. I agree that the figure should be $210 for reasons stated when dealing with past loss of earning capacity. 82 The plaintiff was born on 18 October 1944 and as at 23 April 2001 was approximately 56½ years. I accept the evidence of Dr Upham, the respiratory physician, that the plaintiff would not have been able to work beyond the age of 62 or 63. I direct the parties to prepare a fresh schedule of future economic loss based on the plaintiff having worked for a further six years instead of nine years and that the figure for future living allowance should be $210.
Past gratuitous services and future services 83 The plaintiff claims damages for past gratuitous services and future services. 84 It was the plaintiff's evidence that he is now not able to do anything around the house. Because of that he has had assistance from a number of people who have assisted at various times. This has included Mr Philip Garlick, Ms Darlene Forbes, Ms Ellen Forbes and a Ms Greenwood who passed away in April 2000. He says he requires
(Page 20)
assistance for 12 hours per week to do his housework for him. He does his own cooking. 85 Ms Darlene Forbes gave evidence that she assisted the plaintiff on average about 14 hours per week to assist him around the house including four to five hours gardening on weekends. This was for 11 months in 2000. 86 Ms Ellen Forbes gave evidence that since her daughter Darlene left Geraldton in December 2000 she would take the plaintiff meals a couple of times per week and keep him company. Mr Philip Garlick gave evidence that he presently works three weeks on and one week off at Leonora. When he is not working he resides at Geraldton. During that week he would spend six to seven hours at the plaintiff's place doing his yard, putting in and cutting roses. 87 Mr Trinajstic, when asked about the plaintiff's ability to cope at home, stated that the injury had certainly slowed him down but he considered that there was an element of depression present given how long things had been going on. 88 Dr Graziotti expressed no opinion on the plaintiff's ability to cope at home. 89 Dr Harper considered that the plaintiff needed help with the carrying of heavy bags, and vacuuming and sweeping but that the extent of help to do those things was reasonably modest. 90 The plaintiff claims damages for past and future gratuitous services in a sum of $82,464 and $90,438 respectively in accordance with the schedule annexed to these reasons and marked "C". 91 I accept Dr Harper's evidence that the extent of help required by the plaintiff was reasonably modest. In my view an average of three hours per week would cover the plaintiff's requirements since the date of his accident. He is a single person living alone and is able to do his own cooking. 92 I direct the parties to bring in a schedule of past gratuitous services on the basis of an agreed rate of $12 per hour on the basis of three hours per week. 93 In relation to future services the claim is made on the basis of a life expectancy of 23 years. It is the submission of counsel for the defendant
(Page 21)
that future services should be limited to four years for the reason that the plaintiff has other unrelated problems and the fact that he will simply get older and would have required those services in any event. I accept that submission but would allow a further six years in this respect. I direct the parties to bring in a schedule of future services on the basis of three hours per week at an agreed rate of $12 per hour for a period of six years.
Future travel expenses 94 The plaintiff claims future travel expenses in the sum of $6,385.90 in accordance with the schedule annexed to these reasons and marked with the letter "D". The future travel expenses are claimed on the basis of a future life expectancy of 23 years. 95 It is the submission of counsel for the defendant that the claim should be limited to a period of four years to take account of the plaintiff's emphysema. Again, I would allow six years. I direct the parties to bring in a schedule of future travel expenses based on a period of six years.
Future rehabilitation expenses 96 The plaintiff claims future rehabilitation expenses in the sum of $13,421.31 in accordance with the schedule annexed to these reasons and marked with the letter "E". It is the submission of counsel that the claim should be limited to a period of four years. For reasons previously expressed, I allow six years. I direct the parties to bring in a schedule of future rehabilitation expenses based on a period of six years.
Future treatment 97 The plaintiff claims damages for future treatment in the sum of $22,006.70 in accordance with the schedule annexed to these reasons and marked with the letter "F". 98 Again, it is the submission of counsel for the plaintiff that the multiplier for four years should be used. For reasons previously expressed I would allow six years. I direct the parties to bring in a schedule of future treatment based on a period of six years.
(Page 22)
Past paid services
99 The plaintiff claims past paid services in the sum of $120 in accordance with the schedule annexed to these reasons and marked "G". The defendant accepts that figure and I allow that sum.
Past medication 100 The plaintiff claims damages for past medication in the sum of $172.64 in accordance with the schedule annexed to these reasons and marked "H". 101 The defendant accepts that sum and I allow $172.64.
Future medication 102 The plaintiff claims damages for future medication in the sum of $12,504.37 in accordance with the schedule annexed to these reasons and marked with the letter "I". 103 The claim is made on the basis of a life expectancy of 23 years. It is the submission of the plaintiff that it should only be allowed for a further four years. For reasons previously expressed I allow six years. I direct the parties to bring in a schedule on the basis of a period of six years.
Past and future superannuation 104 The plaintiff claims damages for past and future superannuation entitlements in the sum of $17,994.87 and $28,316.83 respectively in accordance with the schedule annexed to these reasons and marked with the letter "J". 105 The defendant accepts items 1-4 of the schedule but says that the sum of $15,740.80 should be reduced by 30 per cent. The plaintiff accepts that position and it is agreed between the parties that the appropriate sum is $11,018.56 for past loss of superannuation benefits and I allow that sum. 106 The plaintiff additionally claims interest on past loss of superannuation benefits and refers to two District Court cases in which it was allowed: Tomlinson v Thomas [1999] WADC 119 and Duzevich v Carrier Air Conditioning Pty Ltd [2000] WADC 277. It is the submission of counsel for the defendant that interest on past loss of
(Page 23)
superannuation benefits should not be allowed. I was referred to Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192 a decision of Anderson J, the Supreme Court of Western Australia. Uniformity of decision making is an important consideration for the Court and not being convinced that the above District Court decisions are plainly wrong, I propose to allow interest on past loss of superannuation entitlements at the rate of 4 per cent. I direct the parties to bring in a schedule in relation to interest on past loss of superannuation entitlements. 107 The defendant does not have any objection to the plaintiff's calculation of future loss of superannuation benefits but says that the plaintiff would not have worked to age 65. I direct the parties to bring in a fresh schedule for future loss of superannuation benefits on the basis the plaintiff would have worked for a further six years.
Fox v Wood figure 108 The parties have agreed the Fox v Wood figure at $6,000 and I allow that sum.
Special damages 109 Special damages are agreed in the sum of $7,276.30 and I allow that sum.
Conclusion 110 In my view there has been no overlapping between the various heads of damages. It follows the plaintiff is entitled to judgment against the defendant as follows : Loss of amenities $46,400.00
Past loss of earning capacity To be calculated by
parties in accordance
with direction
Future loss of earning capacity "
Past gratuitous services and
future services "
(Page 24)
Future travel expenses "
Future rehabilitation expenses "
Future treatment " Past paid services $ 120.00 Past medication $ 172.64
Future medication To be calculated by
parties in accordance
with direction
Past and future superannuation
entitlements "
Fox v Wood figure $ 6,000.00 Special damages $ 7,276.30 111 I direct the parties to bring in the various schedules as directed in these reasons so that these figures may be ascertained.
(Page 25)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF PAST ECONOMIC LOSS DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
1. The date of the accident was the 20th September 1997.
2. The Plaintiff's pre-accident weekly wage was $816.43 nett. (Being $63,947.00 gross per annum from Income Taxation Return for year ended 30th June 1997, less $22,665.65 paid in tax, plus $1,173.00 tax rebate = $42,454.35 divided by 52 weeks = $816.43 nett per week).
(Page 26)
- 2 -
3. The Plaintiff suffered nett weekly loss of $816.43. The Plaintiff's past economic loss is $151,856.00 calculated as follows:
$816.43 x 186 weeks (from 20th September 1997 to 23rd April 2001) = $151,856.00 interest @ 4% per annum x 3.58 years =
4. The Plaintiff is also claiming the sum of $247.00 nett per week for living allowances paid for by the Defendant whilst the Plaintiff was working on site. 45.5 weeks on site per year x $247.00 per week = $11,238.50 divided by 52 weeks = $216.12 per week x 186 weeks = $40,199.25.
5. The Plaintiff is claiming a total sum of $213,801.03 for past economic loss including interest on past economic loss and loss of living allowances.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 27)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF FUTURE ECONOMIC LOSS DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
1. The Plaintiff is now aged 56 years having been born on the 18th October 1944.
2. The date of the Trial is 23rd April 2001 when the Plaintiff is aged 56 years.
(Page 28)
- 2 - 3. The Plaintiff would have worked to aged 65 years and therefore would have continued to work for another 9 years.
4. The multiplier for 9 years on the 6% table of multipliers is 365.5
5. The Plaintiff would have continued to earn his pre-accident nett weekly wage of at least $816.42: $816.43 x the multiplier of 365.5 = $298,405.16
As no increases in the weekly wage have been taken into account when calculating future economic loss, no deduction for contingencies has been made.
6. The Defendant paid all the Plaintiff's living allowances therefore the Plaintiff claims the loss of future living allowances as follows: $247.00 per week for 45.5 weeks on site per year = $11,238.50
divided by 52 weeks = $365.5
$216.12 x 365.5 - $78,991.86
7. The Plaintiff is claiming a total sum of $377,397.02.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 29)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF PAST AND FUTURE GRATUITOUS SERVICES DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
Past Gratuitous Services
1. The date of the accident was 20th September 1997.
2. The date of the Trial is 23rd April 2001.
(Page 30)
- 2 - 3. The Plaintiff was provided with gratuitous services in the form of emotional support, help with bathing, administering medication, cooking meals, driving the Plaintiff to medical appointments and general household maintenance by his friend Debbie Greenwood for a period of 8 hours per day, 7 days a week for two years. (October 1997 to October 1999).
Debbie Greenwood died in April 2000. 8 hours x 7 days - 56 hours per week x $12.00 per hour = $672.00 per week x 104 weeks = $69,888.00
4. In the period 15th January 2000 to 23rd April 2001 the Plaintiff was provided with gratuitous services by Mr Phillip Garlic for 7 hours per month
7 hours per month x 16 months = 112 hours x $12.00 per hour =
$1,344.00.
5. For the period 15th January 2000 to December 2000, a period of 48 weeks, the Plaintiff was provided with gratuitous services by Darlene Forbes for 14 hours per week at the rate of $12.00 per hour =
14 hours x 48 weeks = 672 hours x $12.00 = $8,064.00
6. From 15th January 2000 to 23rd April 2001 the Plaintiff was provided with gratuitous services from Ellen Forbes for 4 hours per week
4 hours x 66 weeks = 264 x $12.00 per hour = $3,168.00
7. Total for past gratuitous services = $82,464.00.
(Page 31)
- 3 - Future Gratuitous Services
8. The Plaintiff is now aged 56 years of age, according to the Australian Life Table, he has a remaining life expectancy of 23 years. The multiplier for 23 years on the 6% table of multipliers is 661.1.
9. The Plaintiff is claiming gratuitous services of 12 hours per week at the rate of $12.00 per hour or $144.00 per week.
$144.00 per week x the multiplier of 661.1 = $95,198.40
$95,198.40 less 5% for contingencies of $4,759.92 $90,438.48
10. The Plaintiff is claiming a loss of future gratuitous services of $90,438.48.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 32)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF FUTURE TRAVEL EXPENSES DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
1. The Plaintiff is now aged 56 years having been born on 18th October 1944. 2. According to the Australian Life Tables the Plaintiff has a life expectancy of 23 years. 3. The multiplier for 23 years on the 6% table of multipliers is 661.1.
(Page 33)
- 2 - 4. The Plaintiff will be required to travel to the following:
General Practitioner 6 visits per year x 6 kilometres return trip = 36 kilometres x $0.25 per kilometre = $9.00 per year divided by 52 weeks = $0.17 per week x 661.1 = $112.00
Hydrotherapy 2 visits per week x 52 weeks = 104 visits per year x 8 kilometres return trip = 832 kilometres x $0.25 per kilometre = $208.00 per year divided by 52 weeks = $4.00 per week x 661.1 = $2,644.00
Gymnasium 3 visits per week x 52 weeks = 156 visits per year x 4 kilometres return trip = 624 kilometres x $0.25 per kilometre = $156.00 per year divided by 52 weeks = $3.00 per week x 661.1 = $1,983.00
Swimming Pool 3 visits per week x 52 weeks = 156 visits per year x 4 kilometres return trip = 624 kilometres x $0.25 per kilometre = $156.00 per year divided by 52 weeks = $3.00 per week x 661.1 = $1,983.00
5. The Plaintiff is claiming a total of $14,284.00.
$6,722.00 less 5% for contingencies = $6,385.90
(Page 34)
- 3 - 7. The Plaintiff is claiming a total of $6,385.90 for future travel expenses.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 35)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF FUTURE DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
1. The Plaintiff is now aged 56 years of age and according to the Australian Life Table, he has a remaining life expectancy of 23 years. The multiplier for 23 years on the 6% table of multipliers is 661.1.
(Page 36)
- 2 - 2. On Dr D Williams recommendations the Plaintiff is required to undergo a physical exercise programme which requires him to attend a gymnasium 3 times a week as well as a swimming programme in a 50 metre swimming pool 3 times a week for the rest of his life.
3. Swimming Pool
$3.60 per visit x 3 visits per week = $10.80 per week x 661.1 =
4. Gymnasium
The cost of a half yearly membership at a health club is $275.00.
$275.00 divided by 26 weeks = $10.57 per week x 661.1 =
5. The total cost is $14,127.70 for future rehabilitation costs.
$14,127.70 less 5% for contingencies $13,421.31
(Page 37)
- 3 - 6. The Plaintiff is claiming a total of $13,421.31.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 38)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF FUTURE TREATMENT DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11th February 2002
Date of Filing:
Filed on behalf of: The Plaintiff
Prepared by:
PAUL O'HALLORAN
Barrister & Solicitor
22nd Floor, Allendale Square
77 St George's Terrace Telephone No. 9325 7022
PERTH WA 6000 Ref: POH/SP:3203
______________________________________________________________
1. The Plaintiff is now aged 56 years of age and according to the Australian Life Table, he has a remaining life expectancy of 23 years. The multiplier for 23 years on the 6% table of multipliers is 661.1
2. The Plaintiff will require the following future medical treatment:
(Page 39)
- 2 - General Practitioner The Plaintiff will need to consult his general practitioner 6 times per year at $34.50. 6 visit per year x $34.50 per visit = $207.00 divided by 52 weeks =
$3.98 per week x 661.1 = $2,631.18
Orthopaedic Specialist The Plaintiff will need to consult a specialist once per year at $55.00 per visit.
1 visit per year x $55.00 per visit = $55.00 divided by 52 weeks = $1.06 per week x 661.1 = $700.77
Hydrotherapy The Plaintiff will need to have hydrotherapy 2 times a week at a cost of $15.00 per visit.
2 visits per week x 52 weeks = 104 visits a year x $15.00 per visit = $30.00 per week x 661.1 = $19,833.00
3. The total cost is $23,164.95
Less 5% for contingencies $22,006.70
(Page 40)
- 3 - 4. The Plaintiff is claiming a total of $22,006.70.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 41)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF PAST PAID SERVICES DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
The Plaintiff employed a house cleaner for 2 hours per week at the cost of $10.00 per hour for a period of 12 weeks in the year of 2000.
The Plaintiff claims $120.00 for past paid services.
(Page 42)
- 2 - The Plaintiff claims a total of $120.00 for past paid services.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 43)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF PAST MEDICATION DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
Weekly Pharmaceutical Expenses
No. of Price per Packs Total expense
Pharmaceutical tablets per pack last for per week
pack No. of
weeks
Panadeine 100 3.60 4 $0.83
Aropax (20mg) 30 3.60 4 $0.83
TOTAL $1.66
(Page 44)
- 2 -
$1.66 per week x 104 weeks = $172.64
The Plaintiff is claiming $172.64 for past medication expenses.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 45)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF FUTURE MEDICATION DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Date of Filing:
Filed on behalf of: The Plaintiff
Prepared by:
PAUL O'HALLORAN
Barrister & Solicitor
22nd Floor, Allendale Square
77 St George's Terrace Telephone: 9325 7022
PERTH WA 6000 Ref: POH/SP/3203
______________________________________________________________
Weekly Pharmaceutical Expenses
No. of Price per Packs Total expense
Pharmaceutical tablets per pack last for per week
pack No. of
weeks
Panadeine 100 17.80 4 $4.45
Aropax (20mg) 30 61.85 4 $15.46
TOTAL $19.91
(Page 46)
- 2 -
The Plaintiff was born on 18th October 1944.
The Plaintiff is now aged 56 years. According to the Australian Life Table he has a remaining life expectancy of 23 years. The multiplier for 23 years on the 6% multiplier table is 661.1.
Total Future Pharmaceutical Expenses
$19.91 per week x 661.1 $13,162.50
$13,162.50 less 5% for contingencies $12,504.37
The Plaintiff is claiming a total for future medication of $12,504.37.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
(Page 47)
IN THE DISTRICT COURT OF WESTERN AUSTRALIA
HELD IN PERTH
No. 3752 of 1999
BETWEEN:
JOHN REGINALD DUNCOMBE Plaintiff
and
LEIGHTON CONTRACTORS PTY LTD Defendant
______________________________________________________________
PLAINTIFF'S SCHEDULE OF LOSS OF PAST AND FUTURE SUPERANNIATION ENTITLEMENTS
DATES OF TRIAL: 23RD APRIL 2001 ______________________________________________________________
Date of document: 11 February 2002
Filed on behalf of: Plaintiff
Date of Filing:
Prepared by:
PAUL O'HALLORAN Telephone: 9325 7022
Barrister & Solicitor Ref: POH/SP/3203
Level 22, Allendale Square
77 St George's Terrace
PERTH WA 6000
______________________________________________________________
Past Loss of Superannuation Benefits
1. The date of the accident was the 20th September 1997.
2. The date of the Trial is 23rd April 2001.
(Page 48)
- 2 - 3. The Plaintiff's gross pre-accident wage was $1,229.75 per week (being $63,947.00 gross per year from the Income Tax Return for year ended 30th June 1997 divided by 52 weeks).
4. Past loss of superannuation benefits is calculated as follows:
1998 $63,947.00 x 6% = $3,836.82
1999 $63,947.00 x 7% = $4,476.29
2000 $63,947.00 x 7% = $4,476.29
2001 $1,229.75 ($63,947.00 divided by 52 weeks)
x 30 weeks = $36,892.50 x 8% =
$2,951.40
Total less 30% $11,018.56
5. The Plaintiff is claiming past loss of superannuation benefits of $15,740.80 plus interest at :
$15,740.80 x 4% per annum = $629.63 x 3.58 years = $2,254.07.
6. The Plaintiff is claiming a past loss of superannuation benefits inclusive of interest of $17,994.87.
Future Loss of Superannuation Benefits
7. The Plaintiff is now 56 years having been born on the 18th October 1944 at the date of the Trial on 23rd April 2001.
Superannuation will be paid at 9% in 2002.
(Page 49)
- 3 - 8. The Plaintiff has a remaining worker life of 9 years. The multiplier for 9 years on the 6% total is 365.5. But for the accident the Plaintiff would have continued to earn at least a gross weekly wage of $1,229.75 or:
$63,947.00 per annum x 9% = $5,755.23 divided by 52 weeks =
$110.68 x 365.5 = $40,452.62
Less 30% deduction (Jongen v CSR Ltd) $28,316.83
9. The Plaintiff is claiming a future loss of superannuation benefits of $28,316.83.
DATED the 25 day of February 2002.
_______________________________
SOLICITORS FOR THE PLAINTIFF
TO: The Defendant
AND TO: Talbot & Olivier
10th Floor
55 St George's Terrace
PERTH WA 6000
(Ref: JPO:JAB:P10561)
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