Foundas v Rough
[2008] WADC 155
•17 OCTOBER 2008
FOUNDAS -v- ROUGH [2008] WADC 155
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 155 | |
| Case No: | CIV:1935/2005 | 12-15 AUGUST 2008 | |
| Coram: | GOETZE DCJ | 17/10/08 | |
| PERTH | |||
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff in the sum of $150,125 | ||
| PDF Version |
| Parties: | EMMANUEL HARRY FOUNDAS DONALD BENJAMIN ROUGH |
Catchwords: | Damages for personal injuries Negligence Motor vehicle crash Liability admitted Turns on own facts |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943 |
Case References: | Ascic v Westel Co-operative Ltd (1992) A Tort Rep 81-159 Graham v Baker (1961) 106 CLR 340 Husher v Husher (1999) 197 CLR 138 Italiano v Vita, unreported; FCt SCt of WA; Library No 950109; 15 March 1995 Mastaglia & Anor v Burns [2006] WASCA 190 Randall v Dul (1994) 13 WAR 205 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
DONALD BENJAMIN ROUGH
Defendant
Catchwords:
Damages for personal injuries - Negligence - Motor vehicle crash - Liability admitted - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment for the plaintiff in the sum of $150,125
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K S Pratt & Mr S P Paonni
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Vincent Partners
Defendant : B C Sierakowski
Case(s) referred to in judgment(s):
Ascic v Westel Co-operative Ltd (1992) A Tort Rep 81-159
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Italiano v Vita, unreported; FCt SCt of WA; Library No 950109; 15 March 1995
Mastaglia & Anor v Burns [2006] WASCA 190
Randall v Dul (1994) 13 WAR 205
(Page 3)
- GOETZE DCJ:
Introduction
1 The plaintiff claims damages for personal injury, loss and damage alleged to have been suffered by him in a motor vehicle crash.
The plaintiff
2 The plaintiff was born on 28 February 1963. He is a registered painter, in partnership with his wife. He has two children, a son born in 1994 and a daughter born in 1996.
The crash
3 On 24 October 2002, the plaintiff was driving his work motor vehicle in a north easterly direction along the kerbside lane on Beaufort Street, Mt Lawley, near the intersection of Second Avenue. The defendant was driving a truck in the centre lane, to the right of the plaintiff's vehicle and in the same direction as the plaintiff.
4 The defendant, without warning, steered his truck to the left and into the path of the plaintiff's vehicle forcing it to collide with a power pole to its left side and the defendant's truck struck it on its right side. The plaintiff's vehicle was a "write off" in consequence of the crash. It was necessary for the plaintiff to be assisted from his vehicle through a passenger door by the attending police officers, as his vehicle was too damaged on the driver's side to enable him to exit through his own door.
5 Liability has been admitted for the negligence of the defendant.
The plaintiff's injuries
6 On the day of the crash, the plaintiff attempted to contact his local general medical practitioner Dr Angelo Mavromatis but, he was not able to obtain an appointment. In consequence, he attended another nearby general medical practitioner, Dr Stephan Hellmuth, on the day following the crash. Dr Hellmuth reported that the plaintiff's crash symptoms:
"were lower back pain; both knees were sore, sore left axilla and a sore neck. Treatment was with the anti-inflammatory Surgam."
7 On 29 October 2002, the plaintiff reported to Dr Hellmuth that he had only been able to manage one half day's work since the crash. His left arm was sore and his knees were aching. The plaintiff was referred for
(Page 4)
- physiotherapy. The plaintiff also continued with Surgam and was further reviewed by Dr Hellmuth on 5, 12 and 26 November 2002 following which, the plaintiff reported feeling better with physiotherapy. Dr Hellmuth said that the plaintiff:
"reported that there was pain from the head to the left shoulder. His left knee felt weak and his left arm was still not the best. His range of shoulder movements was normal."
"On 6th January 2003 [the plaintiff] had been away from work and treatment for some 3-4 weeks due to a family bereavement. He was not sleeping well due to stiffness/soreness. He found it difficult to put his left hand behind his back. Imaging revealed a left sub-acromial bursitis. He couldn't lift his left arm. An ultrasound guided cortisone injection was given around 24 January."
9 The plaintiff did not consider physiotherapy to be successful and so he stopped that treatment in January 2003.
10 The plaintiff was next reviewed on 7 April 2003, without significant improvement. He reported that he was struggling to lift ladders and, that, there was still no strength in the left shoulder/left arm. Dr Hellmuth was of the opinion that the plaintiff was "still significantly (partially) unfit for work". Dr Hellmuth suggested obtaining a specialist's opinion regarding further management. He considered that physiotherapy had been of benefit to the plaintiff.
11 The plaintiff attended Dr Mavromatis on 1 and 23 April 2003, 21 December 2004, 20 August 2007 and 10 September 2007. It can be seen that there are substantial gaps between attendances from April 2003 to December 2004, and from then to August 2007. Indeed, the attendances on 21 December 2004, 20 August 2007 and 10 September 2007 were solely for medico-legal review purposes.
12 On 12 August 2003, Dr Mavromatis reported that the plaintiff suffered:
"extensive soft tissue injury involving the left side of the neck, extending into the left trapezius muscle and possibly involving the left brachial plexus."
(Page 5)
13 In 2003, the plaintiff was referred to Dr John Salmon, pain management specialist, but, he did not attend Dr Salmon.
14 The defendant, through his insurer, arranged for the plaintiff to be reviewed by Dr John Rosenthal, a medical practitioner working in rehabilitation medicine, on 14 and 28 May 2003, 12 November 2003, 21 May 2004 and 21 July 2006.
15 Dr Rosenthal reported that the plaintiff claimed no prior medical history of relevance. The plaintiff was involved in fishing from a 23 foot boat and he also coached his son's junior soccer team.
16 Dr Rosenthal examined the plaintiff's left upper limb electrodiagnostic studies undertaken on 5 April 2003 from which he determined that there was:
"no cervical radiculopathy but there is moderately severe carpal tunnel syndrome. This was injected last week" ie, May 2003.
17 The plaintiff complained to Dr Rosenthal of:
"posterior neck pain referring into the left shoulder and upper arm as far as the elbow. Headaches are now infrequent. He has a disturbed sleep pattern. He no longer has any knee joint or back pain."
18 The plaintiff told Dr Rosenthal that he had been off work for a week following the crash. Upon his return, he attempted to discharge full duties, but there had been days when he was:
"struggling and cannot complete a full day's work. He has particular difficulty with any lifting and repetitive left upper limb activity."
19 Dr Rosenthal arranged for a magnetic resonance image scan of the plaintiff's cervical spine which revealed only minor age related disc degeneration at various levels. There was no comprehensive pathology to account for the plaintiff's left upper limb symptoms. Functional views of the cervical spine revealed only slight reduction in the segmental range of flexion and extension.
20 Dr Rosenthal was of the view that the plaintiff had suffered:
"… a cervical strain injury of at least moderate severity. There are objective clinical signs of left lower facet joint
(Page 6)
- irritability where there has presumably been capsular ligamentous strain. Fortunately there has not been an intervertebral disc injury of significance. The accident may have aggravated a pre-existing clinically quiescent carpal tunnel syndrome though the underlying cause would more likely be associated with his occupational activities. There is a contralateral pre-accident history of hand parasthesia."
21 Dr Rosenthal recommended that the plaintiff continue taking simple analgesics and/or non-steroidal anti-inflammatory medication subject to tolerance. He would be helped by an upper body exercise program. The plaintiff had a "current level of [work] efficiency [of] 70% of his pre-accident output".
22 In November 2003, the plaintiff reported to Dr Rosenthal that he had suffered:
"a significant flare up of left cervicobrachialgia three or four months ago at which time he had to take strong analgesics on a regular basis."
- This "flare up" occurred during a very busy work time when the plaintiff was undertaking consistent overtime. Dr Rosenthal reported that:
"Notwithstanding this temporary exacerbation, his pattern of improvement had been reasonable and provided he doesn't push himself he remains reasonably comfortable. His current level of work efficiency is 70% of his pre-accident level. He has to specifically avoid heavy jobs such as using a roller when painting walls and ceilings but otherwise he copes very well with the less physically onerous aspects of his job. He has found it necessary to put on an additional employee."
24 Dr Rosenthal was of the view that the plaintiff's crash caused symptoms would continue to improve with time. There had been slight improvement since the previous examination.
25 In May 2004, the plaintiff reported to Dr Rosenthal that he suffered continuation of his left sided neck pain referring into the left shoulder and upper arm with associated headaches. The neck, shoulder and upper arm pain were activity related, intensifying:
(Page 7)
- "with physically onerous work particularly lifting, painting ceilings which require sustained cervical extension and any sustained left upper limb activity above shoulder level."
26 The plaintiff's symptoms were relieved with Naproxen, which he took four to five days a week.
27 The plaintiff continued with his boating and soccer coaching activities.
28 The plaintiff declined facet joint blocks. Although he was working full hours, Dr Rosenthal's opinion was that the plaintiff did not have a full physical capacity.
29 In February 2005, the plaintiff attended Dr John K Ker, consultant physician in rehabilitation medicine, at the request of his own solicitors. Dr Ker reported that:
"radiographs of the cervical spine, left shoulder and low back were relatively unremarkable."
30 Dr Ker noted that the MRI scanning from 9 May 2003 demonstrated "multi-level subtle disc bulges at C2/3, C3/4 and C5/6 and also at T2/3".
31 The plaintiff told Dr Ker that he:
"undertook a variety of work tasks rather slowly. Additionally, he found tasks which involved the use of a roller or sustained painting difficult to perform."
32 The plaintiff reported to Dr Ker that his crash caused symptoms had not really resolved. He experienced neck soreness every day requiring simple analgesia, but he had reduced his reliance on the anti-inflammatory Mobic. The plaintiff suffered headache associated with neck pain and also the radiation of pain into the right and left shoulders. Further, the plaintiff had a continuing presence of central low back pain radiating towards the buttocks.
33 The plaintiff returned to Dr Rosenthal on 21 July 2006:
"in a dramatically improved physical state of health. He underwent gastric banding in September last year and had since lost 30 kilograms in weight. As a result of this weight loss, he no longer requires medication for hypertension."
(Page 8)
34 The plaintiff had also suffered bilateral inguinal hernias requiring surgical repair, together with an umbilical hernia, all of which resulted from heavy lifting at work. They interfered with his work capacity.
35 Dr Rosenthal was of the opinion that the plaintiff's then symptoms were:
"a cervical strain injury of moderate severity causing some left lower cervical facetal pain and dysfunction". The "MR scan of the cervical spine, … only shows mild changes consistent with the normal aging process. There is no evidence of him having sustained any significant cervical disc injury. There is no basis to assert that this injury will cause him progressive disc degeneration."
36 There was at that time some clinical evidence of mild anxiety and depression relating to non-crash medical issues. The plaintiff was able to continue as a self-employed painter:
"subject to certain restrictions. Those restrictions relate to the avoidance of overhead ceiling work and undertaking heavy roller work. I further acknowledge some reduction in efficiency but remain of the view that he has retained 70 per cent of his pre-accident capacity as previously reported. I consider he is capable of working full hours subject to a mix of appropriate duties, dividing his time between quoting, supervision and some hands-on work."
37 Dr Rosenthal did not believe that the plaintiff's working life was reduced by reason of the crash caused injuries. There was:
"some current restriction of left shoulder movement and some weakness on stressing his rotator cuff. There is also a mild degree of acromioclavicular joint function. These are common clinical findings in painters, ceiling fixers and other people engaged in upper limb work at or above shoulder level."
38 Dr Rosenthal considered that there was scope for further improvement regarding the plaintiff's neck symptoms, particularly following removal of medico-legal and other stresses, but there was a 10 per cent cervical impairment. In his oral evidence, Dr Rosenthal indicated that the plaintiff's continued work as a painter is likely to be interfering with the ability of his crash caused injuries to improve.
(Page 9)
39 In August 2007, the plaintiff again saw Dr Ker who reported that the plaintiff had told him, that, the adoption of a flexed position with his neck would produce neck pain and stiffness and that:
"if he maintained his neck in an extended position for any period such as looking up at ceilings or other items above him, he would experience neck pain. The plaintiff had some restriction of neck movement."
40 The plaintiff continued with anti-inflammatory medication.
41 The plaintiff reported to Dr Ker that he spent approximately 40 - 50 per cent of his working day actively painting, but certain tasks, such as ceiling work or painting from a cherry picker, were tasks he would no longer undertake. Dr Ker further noted that:
"In general, when not painting, as well as organising the work of his other staff and subcontractors, he will undertake a number of simple quotations and he is responsible for tasks such as invoicing from the contracting business".
42 Following the surgical banding on his stomach, the plaintiff had lost considerable body weight of approximately 30 kilograms resulting in significant improvement in his previously described upper thoracic and low back pain which, in 2007, only troubled him when he undertook sustained physical activity.
43 Dr Ker was of the view that the plaintiff was fit for selective painting duties and he thought that "active painting tasks for 50 per cent of his time seems reasonable".
44 On 2 October 2007, Dr Mavromatis reported that the plaintiff had:
…"persistent left sided neck pain and stiffness. He can mostly do anything work wise, but now as opposed to pre-accident, if he rolls ceilings or does roller work on higher walls, he develops quite severe left sided neck pain that lasts several days and sometimes longer than one week.
He also now is developing clinical signs of moderate left sided subacromial bursal impingement, but that may be related to repetitive overhead work as a painter rather than as a direct result of the MVA."
(Page 10)
45 Dr Mavromatis thought the left sided neck pains and stiffness were consistent with the crash. The restriction in neck movement was mild, but there was no obvious loss of power in the upper limbs that could be detected. The plaintiff required continuation of simple analgesia and occasional short bursts of non-steroidal anti-inflammatory medication, the cost of which would be minimal.
46 On 19 July 2008, the plaintiff again saw Dr Ker for pre-trial review. His condition continued as previously.
Loss of amenities
47 As a result of the crash, the plaintiff suffered an extensive left sided strain of the cervical spine predominantly involving the soft tissues as described by Dr Mavromatis in his report dated 2 October 2007 and to which I have already referred. This is consistent with Dr Rosenthal's report dated 28 May 2003 that the plaintiff suffered:
"a cervical strain injury of at least moderate severity. There are objective clinical signs of left lower facet joint irritability where there has presumably been capsular ligamentous strain."
48 Dr Ker found persisting neck soreness with movement restriction and the association of intermittent headache. Pain radiated from the plaintiff's neck to his right and left shoulders, but there was improvement in the right shoulder.
49 Further, for some time, the plaintiff suffered upper thoracic and central lumbosacral back pain. The plaintiff told Dr Rosenthal that, by May 2003, his headaches were then infrequent and that he no longer had any knee joint or back pain. However, in February 2005, the plaintiff reported to Dr Ker, that, back pain was intermittent. In any event, the back pain improved following gastric banding and the loss of 30 kilograms in weight. The plaintiff told Dr Ker, that by August 2007, his low back pain then only appeared to trouble him when he undertook sustained physical activity.
50 The plaintiff has been able to manage his symptoms by the use of paracetamol for the control of pain and the intermittent use of an anti-inflammatory agent, Naprosyn or Mobic, to assist in the management of stiffness. Warm showers have also assisted, together with the application of embrocations, such as Deep Heat.
(Page 11)
51 In November 2003, Dr Rosenthal was advised by the plaintiff of a temporary exacerbation of left cervicobrachialgia requiring the use of strong analgesia on a regular basis following a very busy period at work. However, that exacerbation settled and the plaintiff advised Dr Rosenthal that provided he did not push himself at work, then, he remained reasonably comfortable. Nontheless, the plaintiff does become symptomatic with exertion and although Dr Rosenthal anticipated continued improvement in the plaintiff's condition, he attributed the plaintiff's continuing pain from facet joint strain in the cervical and upper thoracic spines and said that the plaintiff's continuing work of painting requiring lifting of the upper arms and flexion of the neck, whilst looking up, can aggravate facetal joint dysfunction and hence cause continuing pain.
52 Although he was surprised that the plaintiff had not continued with improvement, Dr Rosenthal believed that it is unlikely that the plaintiff will have a complete resolution of his symptoms and that is why he attributed the plaintiff's disability to be a 10 per cent impairment of his bodily function. It is the plaintiff's work which prevents further improvement from occurring.
53 The plaintiff told Dr Rosenthal that he was only able to work at 70 per cent of his pre-crash output and, in evidence, Dr Rosenthal accepted that evaluation based on his clinical findings and on his understanding of what is required in the work force, following his experience of over 30 years in occupational rehabilitation medicine. Dr Ker thought that the plaintiff was fit for selective painting duties.
54 Dr Rosenthal did not believe that the plaintiff's condition would worsen by reason that he did not see any worsening in the plaintiff's condition from the time of his first consultation to the time of his last consultation.
55 As an non-medical guide to the effect of the plaintiff's injuries upon him and his work, Patrick O'Callaghan, another painter, gave evidence that, in "some weeks", the plaintiff would not "be in top form on three days out of five". Later in cross-examination, Mr O'Callaghan said that the plaintiff was in "discomfort most of the time. On three days per week, he wasn't in top form". Mr O'Callaghan said that the plaintiff would go to work, but not do much at times and that this could be for "half a month".
(Page 12)
56 Mr O'Callaghan observed the restrictions on the plaintiff in attempting ceiling work, any work above shoulder height and cherry picker work. He confirmed from his own observations that the plaintiff often had to cease work by lunchtime.
57 Shane Tamblyn, a subcontractor to the plaintiff, gave evidence of his observations of the plaintiff following any attempt to undertake heavy work or above head work resulting in the plaintiff having difficulty in turning his neck which he avoids by turning his whole body. He said that the plaintiff is "not a sympathy seeker" and that he and another subcontractor, Adam Fredericks, undertake the heavy work in the business, whilst the plaintiff undertakes the lighter work and that is because the plaintiff "struggles with overhead work".
58 Adam Fredericks also gave evidence that in August 2006, the plaintiff telephoned him requesting that he accept subcontract work from him. That work required two people, which the plaintiff said he could not do. This involved Acra shield work in South Perth and Dalkeith. He also gave evidence of observing the plaintiff's inability to continue rolling a ceiling at a foot locker store.
59 The plaintiff has been able to continue with his boating activities. Although his statement of claim alleges that he had to give up coaching his son's soccer team by reason of his crash caused injuries, the plaintiff said in evidence, that, the coaching was of rooball for small children. Other fathers were also helping. He did this for one to one and a half years prior to the crash and he continued until about one and half years after the crash. He ceased this coaching because he was not an accredited coach.
60 The plaintiff also said in evidence that the crash caused injuries have affected his personal relationship with his wife who is "tolerable and understanding", but his children are "forever having goes at me for not responding" to their needs.
61 None of the evidence which I have outlined above was seriously challenged by the defendant. Indeed, the defendant's expert Dr Rosenthal gave evidence supporting the plaintiff's claim. Accordingly, I make findings of fact in terms of that evidence.
62 I am required to assess damages for the plaintiff's injuries. pain and suffering and loss of amenities in accordance with the Motor Vehicle (Third Party Insurance) Act1943. Section 3C thereof requires that I determine a percentage of "a most extreme case". The present maximum
(Page 13)
- amount for a most extreme case is $309,000 and in my view, the plaintiff is entitled to an award of damages representing 12.5 per cent of a most extreme case which, after deduction of the statutory threshold, is the sum of $23,125.
Past medical expenses and travel
63 The plaintiff's evidence was that he was "blasé" about being able to claim for past medical and travel expenses.
64 The plaintiff attended Dr Hellmuth on seven occasions. His surgery was located approximately 1 kilometre from the plaintiff's home. The plaintiff also attended a physiotherapist, on a weekly basis for approximately three months, opposite Dr Hellmuth's surgery.
65 The plaintiff attended Dr Mavromatis on five occasions. His surgery was approximately 7 kilometres from the plaintiff's home. Further, the plaintiff has been required to attend Dr Rosenthal on four occasions and Dr Ker on three occasions.
66 The plaintiff's evidence was that, in the main, his wife purchased medication for him as required. He obtained prescriptions for such medication when attending his general medical practitioner for other non-crash related reasons.
67 It is clear from the plaintiff's evidence, that, when working from time to time, he has taken pain killing tablets and also non-steroidal anti-inflammatory agents.
68 It is certainly the case, that, each of the medicos who have reported or given evidence in this matter confirm the requirement for painkillers and anti-inflammatory agents. I am unaware on the evidence, whether or not a prescription is required for Panadol, which is one of the drugs of choice taken by the plaintiff. In his report dated 21 May 2004, Dr Rosenthal indicated that the requirement for Naproxen was over four to five days a week, and that seems to match the plaintiff's work habits. In July 2006, the plaintiff told Dr Rosenthal that his requirement was then paracetamol taken a few times a day and Mobic taken two to three days per week. Dr Rosenthal described the cost of this as being "fairly nominal".
69 However, there is no evidence quantifying how much medication the plaintiff has been required to take in circumstances where, for instance, he had a flare up of symptoms in mid-2003.
(Page 14)
70 The plaintiff has also purchased a special pillow to suit his neck injuries, but again, I have no evidence of its cost.
71 Absent any evidence as to the plaintiff's past medication and travel expenses, and given that the requirement for medication has now endured for nearly six years, I will allow $1,500 for past medical, travel and other expenses, including interest.
Future medical expenses and travel
72 The medical evidence is that the plaintiff's crash caused pain is controlled by the use of medication, being painkillers and anti-inflammatory agents as noted above. There is also evidence of the plaintiff requiring, or at least using with Dr Ker's apparent approval, embrocations such as Deep Heat. This will no doubt continue whilst the plaintiff continues to work. He is presently approximately 45.5 years of age.
73 Absent any evidence, but allowing for the notional cost of future medical expenses in the sum of $5 per week for the remainder of the plaintiff's working life (19.5 years - multiplier 607.9) produces a figure in the sum of $3,039.50.
74 I will allow $3,000 for future medical, travel and sundry expenses. The defendant's counsel conceded that some allowance for such past and future expenses should be provided to the plaintiff.
Past loss of earning capacity
75 The plaintiff's case is that:
1. prior to the crash, he was able to:
(a) perform all duties required of a painter;
(b) complete his business administration, including quoting prices for new work, either before or after his working day; and
(c) conduct all of his business with the assistance of one subcontractor, being Shane Tamblyn.
2. Subsequent to the crash, the plaintiff has:
(a) not been able to perform all physical duties required of a painter;
- (b) undertaken his business administration during normal working hours; and
(c) had to engage other subcontractors, at cost, to undertake work that he can no longer perform.
76 The defendant's case is that:
1. The plaintiff has neither proved the loss of an earning capacity, nor in the event that he has, that, such loss has been, or may be, productive of economic loss. Counsel for the defendant, Mr Sierakowski, submitted that Italiano v Vita, unreported; FCt SCt of WA; Library No 950109; 15 March 1995, referring therein to Graham v Baker (1961) 106 CLR 340, is a case of the kind presently under consideration and that I should follow its reasoning with respect to the plaintiff's changed work situation.
2. The information contained within the plaintiff's financial records demonstrates that the plaintiff has not suffered any economic loss in his painting business. Indeed, Mr Sierakowski submitted that the plaintiff's business earnings have flourished since the crash.
3. The plaintiff has not needed to engage additional subcontractors by reason of his crash caused injuries. Rather, any additional labour has been engaged to satisfy the expansion requirements of the plaintiff's business, as can be seen from his business records. This submission from Mr Sierakowski follows the factual position in Italiano's case.
4. The plaintiff's cost of labour has been the same throughout the plaintiff's work history and further, that, in the same way Mr Italiano did after his accident, the present plaintiff has been able to "re-shuffle" his work around to suit himself, given his post-crash condition and thereby, he has been able to achieve higher profits each year.
77 Before proceeding further, it is necessary to first say something about the plaintiff's business, which is conducted in partnership with his wife trading as Colourfast Printing Contractors. They came to Perth from Adelaide in 1997. At first, the plaintiff mainly undertook work for builders on new houses. However, at the time of the crash, the plaintiff was undertaking private work, shop fitouts and he was "breaking into the City of Perth" work, the latter of which provided approximately 30 per cent of his work.
(Page 16)
78 The plaintiff gave evidence that the City of Perth work not only provided higher than usual industry hourly rates for work performed, but, the City allowed a certain number of hours for each job. Further, it was routine and repetitive work such that a contractor experienced in the City's work could perform it in less than the allowed time, thereby effectively increasing the hourly rate allowed by the City of $47.50 for work performed in normal working hours and $65 for evening and weekend work to, say, $100 or $200 per hour. For example, all the City's car parks are painted in the same colour and if a patching job is required, then, as a regular subcontractor to the City, the plaintiff has the correct paint readily available and is aware of the mix of paint required, so that he can readily prepare the mix and repair only "the patch" that needs to be painted, without having to spend time ascertaining the mix of paint and possibly being required to paint a whole wall, as might another contractor not familiar with the work. Thus, the work is highly remunerative to someone like the plaintiff. The only problem was that initially there was a $50,000 limit in any one year on the work which a contractor could undertake for the City. However, this was later increased to $100,000.
79 At some undisclosed time, but after the motor vehicle crash, the plaintiff began subcontracting work to Pat O'Callaghan, who had his two sons working for him. Mr O'Callaghan and the plaintiff began working together in a loose arrangement, but then more closely from about Easter 2005. Subsequently, Mr O'Callaghan formed a partnership, named Intercity Painting Service, with the plaintiff and his wife. This meant that the plaintiff's partnership with his wife, their partnership with Mr O'Callaghan, and Mr O'Callaghan, could each undertake work for the City to the value of $50,000 per annum and increasing later to $100,000 each per annum, thereby increasing their contract fees.
80 Subsequently, in December 2006, the plaintiff's partnership and Mr O'Callaghan were both successful in tendering for work from the City of Perth, so that they were no longer restricted to work from the City on a job to job basis and to be limited in the quantum of their annual fees rendered to the City. Rather, they and the few other successful tenderers, could undertake all of the work required by the City of Perth. For this and other reasons, their Intercity Painting Service partnership was terminated in June 2007. The financial details of that partnership are, in their own way, incorporated into the plaintiff's financial figures, which I have set out below.
(Page 17)
81 The plaintiff's successful tender with the City was for one year, being 2007, with a two year option for 2008 and 2009. He exercised that option and must re-tender next year. He plans to do so. Whether or not he will be successful is an unknown factor, but if not successful, then, the plaintiff intends to undertake other painting work and is hopeful in that regard as he is now "well known" as a painter in Perth building circles. In that event, he will not then earn as much as he now does. Presently, the City of Perth provides 90 per cent of the plaintiff's work.
82 Against this background, it is easier to understand the plaintiff's business figures, which reveal the following:
Financial year | Contract fees | Labour related costs | Business profit | Plaintiff's earnings |
1998 | $237,292 | $122,379 | $ 45,664 | $ 35,332 |
1999 | $182,038 | $ 89,404 | $ 39,014 | $ 27,007 |
2000 | $166,975 | $ 45,771 | $ 40,876 | $ 25,438 |
2001 | $147,302 | $ 37,279 | $ 40,930 | $ 25,465 |
2002 | $113,427 | $ 25,597 | $ 51,436 | $ 30,718 |
2003 | $156,508 | $ 65,908 | $ 53,224 | $ 31,612 |
2004 | $180,662 | $ 62,618 | $ 60,682 | $ 35,341 |
2005 | $168,014 | $ 57,304 | $ 66,610 | $ 38,305 |
2006 | $296,304 | $102,152 | $129,746 | $ 69,873 |
2007 | $407,074 | $162,515 | $179,538 | $ 94,769 |
2008 | $575,029 | $104,741 | $387,240 | $203,620 |
(Page 18)
83 As can be seen from the above figures, the plaintiff's contract fees decreased from 1998 to 2002, but they have increased each year since the crash (24 October 2002), save for the 2005 year. The labour related costs in the financial year of the crash increased considerably and although reducing in the 2004 and 2005 financial years, they increased again in 2006, as did the contract fees. Further, the profits in the business have continued to increase each year from 1999 to 2008, as has the plaintiff's earnings.
84 In the 1998 year, the plaintiff received $25,000 by way of salary. In the 1999 year, the plaintiff received $15,000 by way of salary and in all subsequent years thereafter, he received $10,000 by way of salary and after the payment of his salary, the profit in the business was then divided equally between the plaintiff and his wife, as set out above to show the plaintiff's earnings.
85 The plaintiff's evidence was that prior to the crash, he undertook all administrative tasks, including his paperwork and quoting for new business, either before or after the working day. Thus he was able to spend the working day attending to work which was directly remunerative.
86 The plaintiff also gave evidence that prior to the crash, he was able to attend to all physical aspects associated with the painting trade. However, after the crash, he was off work for one to two weeks. Upon resuming work, he suffered daily headaches for three months, together with neck ache and pain in the shoulders, particularly the left shoulder, and pain in the lower back and knees. The plaintiff said that the more he pushed himself, the more he aggravated the pain. However, the plaintiff was running a business. He was a "go-getter" and did what he could.
87 Although there was some improvement to the plaintiff's crash related injuries by six months post-crash, his condition since then has not improved. He has been limited in the painting tasks which he can perform. He still gets headaches two to three times per week. His neck and shoulder pain bring on more headaches. They ache about once a week, sometimes more, depending upon what tasks the plaintiff has been performing. But on three to four days per week, he is not able to stay at work all day and he goes home at mid-morning or lunchtime for the reason that he is in pain from working or because he cannot perform the heavy work required. In particular, he has difficulty with overhead painting and in using a roller at or above shoulder height. This accounts
(Page 19)
- for half the plaintiff's work. They are, he said, "the real killers". If he does attempt such work, then, he is unable to work on the following day or days.
88 When the plaintiff is forced home, he performs "normal life" duties or "paperwork associated with the partnership".
89 The plaintiff's evidence is that he does patching and light work. Overhead painting, rolling work and thick texture rolling requiring pressure on the roller is necessarily delegated to the plaintiff's subcontractors. As an example, the plaintiff said that if he were to apply two coats of paint to the courtroom ceiling, then he would have neck and arm pain the next day and all he could then do would be to go to work, set his subcontractors their "task for the day and disappear".
90 This evidence is consistent with the evidence from Mr O'Callaghan, Mr Tamblyn, Mr Fredericks and all medicos who either gave evidence or provided reports.
91 However, the plaintiff went further and gave evidence that by reason of the physical restrictions on his ability to carry out his duties as a painter, he has had to engage additional subcontractors to perform that work which he himself ordinarily would have done, but since the crash could not do, because of his crash caused physical limitations and this is where the parties' differences really begin.
92 Prior to and at the time of the crash, the plaintiff had one subcontractor, Shane Tamblyn, who has continued to subcontract to the plaintiff up to the present. Mr Tamblyn works exclusively for the plaintiff. He had worked with the plaintiff in years prior to the crash, left him and then rejoined him in or about 2000.
93 The plaintiff tendered into evidence, without objection, a lever arch file being exhibit 5, containing a series of invoices for the financial years ending 2003 to 2008 inclusive rendered to him by various subcontractors, including Shane Tamblyn, who performed work for the plaintiff following the crash. The plaintiff's evidence was that some of that subcontract work was necessarily undertaken by the relevant subcontractor because the plaintiff could not do that work. The plaintiff has then, in respect of each invoice, assessed in percentage terms the amount of work therein which he would have performed, but could not, because of his crash caused injuries. He has then calculated the monetary cost of having his subcontractor perform that work.
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94 The plaintiff's evidence of inability to perform certain tasks or to do so with difficulty is not seriously disputed by the defendant. However, he was cross-examined as to a number of contracts on which he was engaged in respect of which he undertook work which, he accepted, was beyond his physical limitations. He had nonetheless performed such work. In explanation, he said that the consequence of performing such work was to cause him pain resulting in his inability to work at all on the following day or days, depending on how much of that more onerous work he had attempted. This is corroborated by the evidence of Pat O'Callaghan and Shane Tamblyn, to which I have already referred, and is consistent with the evidence of Adam Fredericks and also the medical evidence of Dr Ker, Dr Rosenthal, Dr Hellmuth and Dr Mavromatis. I accept the plaintiff's evidence in this respect.
95 The invoices provided in exhibit 5 from various subcontractors for the 2003 financial year were issued by Vaughan Maurice, David Beavis, Phillip Mullane, Shane Tamblyn and Adam Fredericks. Messrs Maurice, Mullane, Tamblyn and Fredericks were or still are painters subcontracting to the plaintiff. Mr Beavis was a brush hand.
96 The total cost of subcontract labour and the breakdown thereof from individual subcontractors to 30 June 2003 as revealed in the addendum hereto is:
Maurice $ 2,060.00
Beavis $ 1,705.00
Mullane $ 2,763.00
Fredericks $ 3,480.00
Tamblyn $ 7,848.00
$17,856.00
97 These invoices are consistent with the plaintiff's evidence that following the crash, he was off work for one to two weeks and that thereafter he was not able to engage in full duties and so he recruited, initially, Messrs Maurice, Beavis and Mullane in November 2003. Messrs Maurice and Beavis subcontracted for that month only, with Mr Mullane subcontracting until December 2003 and for one task in January 2003.
98 Mr Tamblyn's pre-existing subcontract work was largely unaffected by the plaintiff's injuries until mid-January 2003, when he began to perform extra work for the plaintiff until Mr Fredericks joined the plaintiff
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- in May 2003. Mr Tamblyn then ceased performing extra work, at least in the short term. However, Mr Fredericks stopped working for the plaintiff in December 2003 and did not rejoin the plaintiff again until August 2006. He stopped again in May 2007, but started once more in September 2007, and he continues to still work for the plaintiff.
99 The invoices in exhibit 5 further reveal that, in the 2004 and 2005 financial years, when Mr Fredericks ceased subcontracting to the plaintiff in December 2003, Justin Williams, an apprentice, was recruited. He remained working with the plaintiff until August 2004.
100 I should also note, that, in September 2005, the plaintiff underwent gastric banding with the result that he lost considerable weight, which in turn relieved some of his low back symptoms. Further, in 2006, the plaintiff suffered from bilateral inguinal hernias, which Dr Rosenthal thought affected the plaintiff's ability to perform heavy work. These hernias were caused by work and resulted in surgery in August 2006. The plaintiff was off work for three weeks and two weeks or thereabouts respectively for these surgical procedures and both of them required a graduated return to work.
101 I have already mentioned that Mr Fredericks rejoined the plaintiff in August 2006. The circumstance of the plaintiff then approaching Mr Fredericks was his need for assistance to install Acra shield. This is a two man task. I accept that the reason why the plaintiff was not able to perform this was his crash caused injuries. He was not cross-examined on the basis that his hernia operation prevented him from doing that work.
102 The defendant led evidence from Alan Smit, a chartered accountant engaged in the forensic examination of business accounts, who produced a report detailing that:
(a) the plaintiff's contract fees have increased 400 per cent since the crash, but contract fees were declining prior thereto;
(b) the total earnings of the plaintiff and his wife have increased each year from 1999 to 2008;
(c) the 2008 financial year earnings are nine times higher than those of the pre-crash earnings;
(d) pre-crash, the percentage of labour to income varied between 23 per cent and 52 per cent of contract fees so that historically, the plaintiff employed additional labour as and when required; and
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- (e) post-crash, the plaintiff had incurred additional labour related costs in line with the growth in income.
103 Mr Smit said that the plaintiff had not provided any accounting methodology to show that the increase in labour related costs is a consequence of the plaintiff's crash caused injuries. Mr Smit thought that the plaintiff was involved in increased marketing and that that marketing had generated growth in the business. He further believed that the plaintiff had failed to show that he had available time to perform the tasks of the subcontractors in light of the growth of the business.
104 As I have said, it is not really disputed that the plaintiff has suffered a crash caused reduced capacity to engage in the full range of duties required in the trade of a registered painter. Rather, the defence is that such reduced capacity is not, or may not be, productive of economic loss and that the plaintiff has "reshuffled" his duties in the business to have become more of an administrator, rather than a worker.
105 My finding is that prior to the crash, the plaintiff engaged daily in a full day's work of remunerative painting and that he attended to his administrative work and quoting before or after his day's work. There was some weekend work, but not much. I also find that since the crash, the plaintiff has had reduced capacity with above shoulder or head work and other work requiring pressure being placed on a painting implement. I find that he still suffers from headache, neck and shoulder pain and that he will continue to so suffer whilst he engages in painting.
106 I find that he goes home early on three to four days per week, or as Mr O'Callaghan put it, "3 days out of 5 he wouldn't be in top form" and "he'd go to work and not do much at times – for half the month". Insofar as the plaintiff goes home, he does so to perform "normal life duties" or he engages in his business administration, but he goes home or he does not do much work because of his crash caused injuries and their consequences.
107 I accept that the plaintiff now spends 8 – 12 hours per week in business administration and that he may now perform that in what would otherwise be his directly remunerative working hours. However, before the crash, he did that in addition to his full day's remunerative working hours. The plaintiff said that the volume of his "paper work" is now the same as it was before the crash, however he conceded that during his time spent working with Mr O'Callaghan, he necessarily performed more administrative work. My finding is that the plaintiff would have
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- continued to conduct his business administration, including quotations, either before or after his working day, had it not been for the crash.
108 It follows that the plaintiff loses time from attending to remunerative work by reason of his crash caused injuries. The medical evidence supports the plaintiff's reduced capacity and Messrs O'Callaghan, Tamblyn and Fredericks gave direct evidence of it in support of the plaintiff.
109 The plaintiff asserts that the consequence of these findings is as set out in the addendum to these reasons detailing subcontractors' billings to the plaintiff in the 2003 financial year. From that addendum, it can be seen when Messrs Maurice, Beavis, Mullane, Fredericks and Tamblyn began working for the plaintiff, the periods over which they each worked for the plaintiff and the billings they rendered to him, together with the plaintiff's calculation of that percentage of those billings which was, he says, incurred by reason of his crash caused injuries. He was not cross-examined on these billings by subcontractors, nor on his estimation of the various percentages.
110 There are then the invoices for the subsequent financial years of 2004 to 2008 as to which, the same comments are applicable, given that I accept that the plaintiff's condition has not really changed since six months after the crash.
111 Mr Smit made the point that the plaintiff had failed to show that he had the time available to him to perform the work which the subcontractors have now performed. Here, the assumption is, that, the plaintiff has otherwise attended to the administrative duties of his business, including marketing, so as to boost his business income, when he could not perform the heavier work, along the lines of the Italiano case, (supra).
112 However, the present volume of the plaintiff's "paper work" is the same as it was prior to the crash. Therefore, it could all be attended to either before or after the working day as it was prior to the crash. This would leave the plaintiff with his full working day, but, he is limited in the duties he can perform and he often is required to leave work without completing a full day's remunerative work, even performing light duties.
113 It therefore follows, that, contrary to Mr Smit's view, the plaintiff does have at least a certain number of hours available to him to perform the work, or at least part of that work, which the subcontractors have
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- performed since the crash. Those subcontractors have undertaken the heavy work which the plaintiff which has been unable, and continues to be unable, to perform by reason of his crash caused injuries.
114 It is however, also the case, that, at certain times at least, the plaintiff has performed the easier work at the same time others performed the more difficult work that he could not do in respect of which the plaintiff has made a claim. For example, the plaintiff himself gave evidence that he painted the lower part of power poles whilst Mr O'Callaghan, on a ladder, contemporaneously painted the upper part of those poles. His counsel, Mr Pratt, accepted the need for a discount on the claimed figures to reflect this and submitted that I should approach past loss of earning capacity on a global basis, using the plaintiff's claimed yearly losses, detailed below, as a guide.
115 The plaintiff's claim therefore really rests on two bases. First, that there is some heavy work he cannot do at all, yet the plaintiff recognises that he cannot claim for such work performed at times when he himself was undertaking lighter work. The plaintiff does not have any records which could assist in this regard. Secondly, sometimes the plaintiff cannot work at all, as to which, I have previously outlined the relevant evidence. Accordingly, the determination of past economic loss can only be determined in a global manner.
116 It should further be noted, that, one reason for the plaintiff's increased income is the obtaining of work from, and then his successful tender to, the City of Perth. This work started prior to the crash, but since the crash, such work has increased from 30 per cent to 90 per cent of the plaintiff's total work. This does not really require additional marketing by the plaintiff as opined by Mr Smit. I have already accepted that, putting to one side the period of working with Mr O'Callaghan, the plaintiff's "paper work" is now the same as it was before the crash. The City of Perth work requires the ability to attend to the work when requested and in 2006, the preparation of tender documents, soon to be repeated in 2009.
117 As noted, the plaintiff meets the suggestion that the increase in contract fees alone has caused the increase in labour related costs by his evidence, that, the City of Perth work is highly profitable and further, that, his crash caused injuries have caused him to be unable to complete all of the duties of a painter, such that he has subcontracted some of his work which he himself otherwise would have performed.
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118 The plaintiff has calculated his loss by assessing each invoice in exhibit 5 and determining the appropriate percentage of that work which he says that he would have done himself had it not been for the crash related injuries. Starting with the labour costs the plaintiff says were incurred, the plaintiff has calculated his past economic loss as follows:
Year | Labour costs incurred | Plaintiff's pre-tax one half share | Plaintiff's loss after tax |
2003 |
|
|
|
2004 |
|
|
|
2005 |
|
|
|
2006 |
|
|
|
2007 |
|
|
|
2008 |
|
|
|
|
|
|
119 The above figures as claimed represent only one half of the past economic loss to the plaintiff's partnership and his after tax share thereof. The plaintiff's counsel submitted that this is in accordance with the decision in Mastaglia & Anor v Burns [2006] WASCA 190. It is how the plaintiff's counsel submitted I should assess past loss of earning capacity. The plaintiff gave evidence that his wife assisted with the banking of their business and that she also picked up paint from wholesalers and delivered it to the plaintiff and his subcontractors at their varying places of work. There is no evidence of the value of the wife's services to the partnership. It is an equal partnership and I am asked to assess past loss accordingly. Counsel referred me to McLure JA at "[145] and following" and Buss JA at "]156] and following". This presumably included McLure JA at [147] and Buss JA at [157] – [171]. See also Buss JA at [175].
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120 One way to test these above figures is to determine the veracity of the plaintiff's claim that he himself could have done the work for which he has claimed had it not been for the crash caused injuries. To do this, it is necessary to divide the annual labour costs which the plaintiff says were incurred by the hourly rate payable to the subcontractors of $25 increasing to $30, "last year" according to the plaintiff, or "2 years ago" according to Mr Tamblyn, by which it is possible to calculate the extra hours per day for each year, on average, that the plaintiff would have worked as claimed, assuming a 46 week working year to allow for four weeks annual leave and 10 statutory holidays and also assuming a five day working week. I have allowed $25 per hour to 30 June 2007 and $30 per hour thereafter following the plaintiff's evidence. It is to be remembered that the plaintiff's claim is only for what he has paid his subcontractors.
2003 $18,872 ÷ $25 ÷ 46 ÷ 5 = 3.29 extra hours per day
2004 $28,099 ÷ $25 ÷ 46 ÷ 5 = 5.04 extra hours per day
2005 $28,892 ÷ $25 ÷ 46 ÷ 5 = 5.02 extra hours per day
2006 $29,387 ÷ $25 ÷ 46 ÷ 5 = 5.11 extra hours per day
2007 $32,482 ÷ $25 ÷ 46 ÷ 5 = 5.64 extra hours per day
2008 $47,752 ÷ $30 ÷ 46 ÷ 5 = 6.92 extra hours per day
121 I have previously mentioned the plaintiff's evidence that on "3 or 4 days per week I don't stay at work all day". He then goes home and does "normal life duties or paper work". This was confirmed by Mr O'Callaghan, who in cross-examination referred to the plaintiff only working "3, 4 or 5 hours" on some days, "sometimes this would be 3 days per week. It depends on what he did at work the day before". However, in re-examination, Mr O'Callaghan said that on "3 days per week he wasn't in top form and – he'd go to work and not do much at times - for half the month". This leaves open the fact that there are days when the plaintiff does not lose any time at all. The "paper work" takes 8 to 12 hours per week, but pre-crash, this work was done before or after the remunerative work.
122 Bearing this evidence in mind, which I accept in the general sense, the extra hours which the plaintiff would have been required to work in lieu of subcontractors varies from 3.29 hours per day in 2003 to more than 5 hours per day in each of 2004 to 2007 years inclusive and 6.92 hours per day in 2008.
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123 At best, the calculations which I have undertaken are merely a guide to check whether the plaintiff could have performed the work he claims that he could not do by reason of his crash caused injuries.
124 Prior to the crash the plaintiff was fully engaged in remunerative work on each working day and performing his administrative and quoting work before or after his working day. Still, the plaintiff's business fees have grown and that growth is no doubt due to the plaintiff being successful with the City of Perth before the crash and thereafter, remembering that the plaintiff was initially limited to fees of $50,000 per annum and that this was later increased to $100,000 per annum. He was then able to earn even more fees by forming another partnership with Mr O'Callaghan until 2007, when the tender became operative and this has resulted in yet a further upward lift in annual contract fees. This increase in fees suggests an increase in work beyond the capacity of even a fully fit plaintiff to perform, but such must be balanced with the fact that, the City of Perth work is paid by the contract job, and not by the hour, so that it is for more profitable than other work as I have explained earlier in these reasons. It follows that the increase in contract fees has not been solely due to an increase in the volume of work undertaken by the plaintiff's business.
125 I accept that the plaintiff required assistance in his work by reason of his crash caused injuries and that the plaintiff could and would have undertaken some, but not all, of the work performed by his subcontractors. There appears to be too much work for the plaintiff to have undertaken it all.
126 I am prepared to allow the 2003 claim in full as that period followed immediately after the crash, and because the plaintiff's need to subcontract to the subcontractors additional to Mr Tamblyn was both immediate following the crash and quite contrary to his previous requirements and his use of Mr Tamblyn as his only subcontractor.
127 The plaintiff's condition has remained much the same from about six months after the crash until the present. I am therefore prepared to find that from 1 July 2004 onwards the plaintiff has lost an approximate tworemunerative work hours per day on average to his subcontractors, whom he would not otherwise have employed to perform that work. That approximately balances out with not working all day on "3 or 4 days per week" from "mid-morning or lunchtime". Accordingly, I assess past economic loss as follows:
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- 2003 claim accepted in full at $17,856 ÷ 2 = $ 8,928
2004 2 hours @ $25/hour x 5 days x 46 weeks ÷ 2 = $ 5,750
2005 2 hours @ $25/hour x 5 days x 46 weeks ÷ 2 = $ 5,750
2006 2 hours @ $25/hour x 5 days x 46 weeks ÷ 2 = $ 5,750
2007 2 hours @ $25/hour x 5 days x 46 weeks ÷ 2 = $ 5,750
2008 2 hours @ $30/hour x 5 days x 46 weeks ÷ 2 = $ 6,900
$38,828
128 I should note that my own review of the 2003 invoices totals $17,856, and not $18,962 as claimed by the plaintiff.
129 The figures in the above table allow for the plaintiff having time off work and going home. They also allow for the plaintiff doing light work whilst others did heavy work, so that on those occasions when others performed heavy work, the plaintiff was not unproductive in terms of remunerative work.
130 The figure of $38,828 does not however allow for income tax, and interest payable on past loss. As this lost income is additional to the plaintiff's earnings as set out in the table above, the tax rate applicable to the lost earnings is at least 30 per cent, or more, increasing with the plaintiff's increasing income as shown above in that table. Approaching this on a global basis, I will allow a global $27,500 for past economic loss of earning capacity, to include interest.
Loss of future earning capacity
131 Dr Ker gave evidence that many tradesmen retire at the age of 60 years in any event. That is a view he has reached following many years in practice in rehabilitation medicine. Because of the continuing symptoms suffered by the plaintiff, Dr Ker was of the view that the plaintiff might retire from work at an earlier time. On the other hand, Dr Rosenthal thought there is no reason why the plaintiff can not continue to work until the normal retiring age of 65, as was the plaintiff's pre-crash intention. This is the only substantive difference of opinion between these two medicos.
132 Dr Mavromatis has reported that the plaintiff suffers moderate left sided subacromial bursal impingement that may be related to the plaintiff's work. Dr Rosenthal also reported "restriction of left shoulder movement and some weakness on stressing his rotator cuff. There is also
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- a mild degree of acromioclavicular joint function". Subject to these reports, I accept Dr Rosenthal's view that the plaintiff can continue to work to age 65 years given the working arrangements he has with Messrs Tamblyn and Fredericks. Indeed, 65 years is the normal starting point for retirement as set out in Ascic v Westel Co-operative Ltd (1992) A Tort Rep 81-159 at 61,237, but the plaintiff may cease earlier or continue working longer than that age. If the plaintiff were to stop work early, then, it is likely to be for a non-crash related reason, such as indicated by Dr Mavromatis and Dr Rosenthal. There is no evidence that the plaintiff may have worked beyond 65 years of age.
133 However, in looking to future economic loss of earning capacity, one needs to have regard to what the position would have been had it not been for the crash, including findings of Dr Mavromatis and Dr Rosenthal above and, what the position will be now, given the fact of the crash and its consequential injuries inflicted upon the plaintiff. Further, the past can be taken as a guide to the future. Any number of questions can be posed, including:
(a) What happens if the plaintiff loses the City of Perth contract? His evidence is, that, he is now well known in the painting trade in Perth and he will be able to obtain other contract work but, such other work would be likely to be subject to fluctuations in economic trends which might adversely affect the building trade and hence the plaintiff's income. It would also not be as remunerative as the City of Perth work. On present day tax levels, the plaintiff will pay a marginal tax rate on taxable income as follows:
(i) $30,001 to $75,000 - 30%;
(ii) $75,001 to $150,000 – 40%; and
(iii) $150,001 and over – 45%.
His last three years net earnings have been $69,573 (2006), $94,769 (2007) and $203,620 (2008).
(b) What happens if Mr Tamblyn and/or Mr Fredericks should leave the plaintiff's business? He would then be a sole trader with one subcontractor or without subcontractors at all and he would still have a distinct limitation in his ability to carry out the full range of duties of a registered painter. He might not find someone as reliable as Mr Tamblyn and Mr Fredericks, nor might he find
- someone by way of replacement who is willing to undertake the heavy work and leave the lighter work to the plaintiff.
134 These issues therefore reveal that the plaintiff's future is not certain and that the assessment of future loss of capacity requires consideration thereof.
135 It is then necessary to return to Italiano's case as relied upon by Mr Sierakowski. The facts in that case were quite different to the present in that Mr Italiano "reshuffled" his business after his accident so that he was thereafter engaged in full time business administration, including marketing. That was because his "traffic accident deprived the plaintiff of his capacity to work as a stonemason" per Anderson J at p 3.
136 The plaintiff, Mr Foundas, is not deprived of his capacity to work as a painter. He is only partly deprived thereof and his business does not need a full time administrator and marketing person. He still works in the business, albeit in light duties, and he could ordinarily perform his administration, including marketing, either before or after the working day. And so, it is not the case as Anderson J said at pp 6 and 7 in Italiano's case that the plaintiff's "changed role in the business to full time administration activities significantly improved the fortunes of the business". Rather, it is the increase in the City of Perth work and the successful tender to the City which has changed the "fortunes of the business". The plaintiff had this work prior to the crash, but on a limited fee basis. The profit from the City's work increased with the increase in fees which could be rendered, the partnership with Mr O'Callaghan and then the tender. The plaintiff had no need to adjust his role in his business in order to take advantage of these changes which would have occurred with or without the crash caused injuries. Indeed, had it not been for the crash caused injuries, then, the plaintiff could and would have performed much of the work himself, rather than having to employ another painter, or painters, to perform it for him, at cost.
137 Contrary to Italiano's case, in Mr Foundas' case, there is "cogent evidence that [the plaintiff's] lost capacity to physically work as a [painter] has been productive of economic loss … [Painters] have had to be engaged to supplement the team by reason of the [plaintiff's] inability to contribute strenuous physical labour" – to paraphrase Anderson J in Italiano at p 7.
138 Given this situation, the plaintiff's lack of full capacity will continue to be productive of economic loss into the future as he works in his team
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- unable to complete all tasks required of a painter and requiring subcontractors to perform and complete that heavier work which he now cannot do and tasks which he cannot complete. To the extent that such subcontractors will be required to be remunerated for work which the plaintiff would otherwise have done had he not suffered his crash injuries, then, he will continue to suffer economic loss.
139 Again, it is only possible to determine future economic loss of earning capacity on the basis of a global approach and in this regard, an award of $95,000 is appropriate recognising that this assessment is not to be restricted to one half in its quantification, as to which see Mastaglia (supra) at [89] and [92] per Martin CJ, following Husher v Husher (1999) 197 CLR 138, and McLure JA at [119].
140 This award can be tested by looking at the present day cost of a subcontractor at $30 per hour, for two hours per day at five days per week, applying the 19.5 year multiplier (607.9) and then reducing the total to allow for income tax and contingencies, including Dr Mavromatis' advice as to the plaintiff's work caused subacromial bursal impingement as follows:
$30 per hour x 2 hours per day x 5 days per week
x 46 weeks of work per annum ÷ 52 weeks to reflect weekly loss
x 607.9(19.5 years multiplier)
reduced by 5% to allow for contingencies
reduced by 30-40-45% to allow for income tax
$84,293.51 - $91,956.56 - $107,282.65
141 Obviously, this range is heavily influenced by the differing rates of income tax that apply to the differing scenarios of the plaintiff being either successful or not with future tendering for work from the City of Perth. I have endeavoured to achieve an award which is both in line with the present situation of the plaintiff being a successful tenderer, whilst also recognising that he may not always be so successful. Indeed, he may not always be so fortunate as to have staff who are prepared to work with and for him in the manner they presently do.
142 It also needs to be remembered, that, the plaintiff's loss of earning capacity arises in a partnership situation. The calculation of loss by reference to substitute labour in that situation "is no more than a means of quantifying the value of that loss … it (is) not necessary in a case such as
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- this that actual economic loss be established" per Franklyn J in Randall v Dul (1994) 13 WAR 205 at 215.
Past and future gratuitous services
143 This claim was formally abandoned by the plaintiff's counsel.
Summary
144 I will allow the plaintiff's claim calculated as follows:
General damages $ 23,125.00
Past medical and travel expenses $ 1,500.00
Future medical and travel expenses $ 3,000.00
Past economic loss $ 27,500.00
Future economic loss $ 95,000.00
$150,125.00
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ADDENDUM
Date | Maurice | Beavis | Mullane | Fredericks | Tamblyn |
Invoice | Amount claimed | Invoice | Amount claimed | Invoice | Amount claimed | Invoice | Amount claimed | |
01.11.2002 | $ 1,000 | $ 438 | ||||||
08.11.2002 | $ 480 | $ 355 | $ 800 | $ 675 | $ 640 | $ 1,000 | ||
15.11.2002 | $ 800 | $ 675 | $ 800 | $ 675 | $ 800 | $ 675 | $ 1,000 | $ 438 |
21.11.2002 | $ 1,000 | |||||||
22.11.2002 | $ 800 | $ 675 | $ 800 | $ 591 | ||||
27.11.2002 | $ 480 | $ 355 | ||||||
28.11.2002 | $ 1,000 | |||||||
29.11.2002 | $ 480 | $ 355 | ||||||
05.12.2002 | $ 480 | $ 355 | $ 600 | |||||
05.12.2002 | $ 480 | $ 302 | ||||||
19.12.2002 | $ 640 | $ 515 | ||||||
24.12.2002 | ||||||||
17.01.2002 | $ 1,000 | $ 800 | ||||||
31.01.2003 | $ 600 | $ 875 | ||||||
07.02.2003 | $ 600 | $ 238 | ||||||
14.02.2003 | $ 1,200 | $ 451 | ||||||
21.02.2003 | $ 400 | $ 753 | ||||||
26.02.2003 | $ 450 | $ 325 | $ 340 | |||||
15.03.2003 | $ 800 | |||||||
21.03.2003 | $ 1,000 | $ 540 |
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Date | Maurice | Beavis | Mullane | Fredericks | Tamblyn |
28.03.2003 | $ 1,200 | $ 438 | |||||||
10.04.2003 | $ 960 | $ 538 | |||||||
28.04.2003 | $ 2,800 | $ 835 | |||||||
09.05.2003 | $ 960 | $ 1,338 | |||||||
16.05.2003 | $ 800 | $ 338 | |||||||
23.05.2003 | $ 960 | $ 418 | |||||||
30.05.2003 | $ 320 | $ 320 | $ 840 | ||||||
07.06.2003 | $1,360 | $1,235 | $ 1,680 | ||||||
13.06.2003 | $ 800 | ||||||||
14.06.2003 | $ 900 | $ 775 | |||||||
20.06.2003 | $ 760 | $ 635 | $ 800 | ||||||
27.06.2003 | $ 640 | $ 515 | $ 800 | ||||||
$2,560 | $2,060 | $2,080 | $1,705 | $4,290 | $2,763 | $3,980 | $3,480 | $24,600 | $ 7,848 |
0
3
1