Georges (formerly known as Leon Gogizkhah) v Soutter

[2016] NSWDC 9

District Court

New South Wales

Medium Neutral Citation:	Georges (formerly known as Leon Gogizkhah) v Soutter [2016] NSWDC 9
Hearing dates:	16 February 2016 – 18 February 2016
Date of orders:	19 February 2016
Decision date:	19 February 2016
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Judgment for the plaintiff for $45,140.10
Catchwords:	Personal injury, motor vehicle accident at T intersection, contributory negligence.
Legislation Cited:	Motor Accidents Compensation Act 1999 Civil Liability Act 2002
Cases Cited:	Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227
Category:	Principal judgment
Parties:	Lenny Georges (formerly known as Leon Gogizkhah) (Plaintiff) Vitina Soutter (Defendant)
Representation:	Counsel: M Cleary (Plaintiff) B Wilson (Defendant)   Solicitors: Shine Lawyers (Plaintiff) Sparke Helmore Lawyers (Defendant)
File Number(s):	2014/00145574

Judgment

1. On 11 August 2012 the plaintiff was involved in a motor vehicle accident in Edensor Park. He blames the accident on the negligence of the defendant. He has sued the defendant for damages.

2. The action is governed by the Motor Accidents Compensation Act 1999 (the “MACA”). The Civil Liability Act 2002 (the “CLA”) also has a part to play in determining if there was a breach of the duty of care.

3. The plaintiff has claimed damages under the following heads: past and future economic loss, past and future medical expenses and future paid domestic assistance. The plaintiff is not entitled to non-economic loss because he does not exceed the threshold imposed by Section 131 of the MACA.

4. The defendant denies that she is negligent but says, in the alternative, that if she was negligent then so too was the plaintiff. The defendant says the plaintiff’s injuries are significantly less severe and of much less consequence than he alleges.

5. The difference in approach between the parties was highlighted by the Schedules of Damages they gave me at the commencement of the hearing. The plaintiff’s schedule totals $1,092,696.80 (excluding medical expenses). The defendant’s schedule, also excluding medical expenses, suggests $8,253.

6. The Standard Orders made by a court when a matter is set down for hearing include a direction that a Schedule of Damages be prepared. The intent is that the court will be assisted in knowing, if only in broad terms, the respective position of the parties when the matter commences.

7. I pointed out my concerns to plaintiff’s counsel and he, appropriately, produced a revised schedule, this one totalling $319,447.50.

The plaintiff’s background

8. The plaintiff was born in 1963 in Iran. His name was then Leon Gorgizkhah. He changed to his current name in 2012. He completed high school but left Iran when he was 21 years of age, I gathered because of the political situation in that country. He spent some years in Europe, eventually coming to Australia in 1988.

9. The plaintiff is married and has three children. They are now all adults.

10. The plaintiff started work as a formworker soon after his arrival in Australia and has continued in that occupation for almost all of his working life up to the accident.

11. There was a major interruption to his capacity to work following a left eye injury he suffered on 12 September 2000. His eye was penetrated by a nail. He initially lost all sight in his eye but later underwent a left corneal graft in Adelaide in 2003. This returned a good deal of his sight in the left eye.

12. The plaintiff was able to resume work as a formworker in 2007. He had received workers compensation following the eye injury but the payments stopped in 2005 following what appears to have been, in effect, a ‘redemption’ of his rights. He received a lump sum.

13. The plaintiff’s wife carried on a small tobacconist business for a period in 2007 but the plaintiff took no active part in this business.

14. In 2010 the plaintiff worked for Lotus Construction in Wetherill Park and then in June 2012 he commenced working for Azzuri Concrete, also in Wetherill Park.

15. There was a good deal of confusion about whether the plaintiff was self-employed or working as a self-employed subcontractor. His tax returns which are contained in Exhibit A are of no assistance whatsoever. I think the payslips adduced by Azzuri Concrete are more useful.

16. A second medical condition which played some part in the case, and arose before the accident, concerned pain and numbness which the plaintiff felt in his feet. He consulted his general practitioner Dr Atto and then received a referral to Dr Beran, a neurologist. The plaintiff said that on his understanding of Dr Beran’s findings the difficulty was associated with his blood pressure and he was given tablets. It is difficult to reach any conclusion about exactly what was wrong with him but I note the physiotherapy that the plaintiff received in November 2012 (Exhibit A, page 70) seems to refer to the same problem.

17. Dr Beran’s reports (Exhibit 6) refer to some abnormal findings on the MRI scan of the plaintiff’s lumbar spine but there is no history of low back pain nor any suggestion that the condition affects the plaintiff’s ability to work.

18. Looking at the evidence generally it would appear that the plaintiff was engaged as a formworker at the date of the accident and was capable of doing that work.

19. The defendant challenged the size of the plaintiff’s pre-accident earnings. His tax returns (Exhibits A and 10) suggest an average income after 2006 of $286. His immediate pre-accident earnings, according to the pay slips (Exhibit E) paint a very different picture with average net earnings for the 10 weeks before the accident being in the order of $1,150.

20. I have no reason to doubt the veracity of the pay slips, but they do raise some unusual aspects. For example why was the plaintiff paid after the accident (when he did not work) and why do the post-accident payslips include overtime?

The accident

21. 11 August 2012 was a Saturday. The plaintiff went to work in his employer’s utility. He finished work at about 10am at a Coca-Cola factory and was making his way home. He was travelling along Edensor Road intending to turn right into Markovina Street. The intersection of these two roadways is a T-intersection. There is a useful diagram on page 28 of Exhibit A. There are also photographs (Exhibit 5).

22. The plaintiff says that he came to a stop at the intersection to allow two vehicles travelling in the opposite direction to pass. He then commenced a right hand turn. The location where he stopped and his subsequent path is marked on Exhibit 5, photograph 1. He said that when the turn was almost completed, so that 75% of his utility was into Markovina Street, his vehicle was struck by the defendant’s vehicle which was travelling in the opposite direction. He marked the point where his vehicle was situated when struck on photograph 2. The position of the parked car is also marked on this photograph. As shown in the diagram he alleges that this vehicle was parked on Edensor Street and set off notwithstanding that he was making the turn. Accordingly he says the accident was entirely the fault of the defendant.

23. The plaintiff was closely cross-examined on another diagram (Exhibit 4) and a history he gave to his doctor on 23 August 2012 (Exhibit A, page 46). He said he did not draw the diagram in Exhibit 4. He only inserted the street names. To the extent that it suggests the defendant’s vehicle was the second of the parked vehicles, the plaintiff says it is incorrect.

24. The defendant did not suggest there was another vehicle. The parties are in fact in agreement that the defendant’s vehicle was the first parked car before the intersection. The difference between them is how far back it was parked and at what stage it moved off. It is no part of the defendant’s case that her vehicle emerged from behind any other vehicle. To the contrary, she says she was parked as suggested by the plaintiff, but not as close to the intersection as he asserts. Rather she was some way from the intersection and having left that position proceeded along Edensor Road until the intersection when the plaintiff turned across her path.

25. As for the history to Dr Atto, the plaintiff says there was no bus involved and the history is simply wrong. In dealing with the history it is important to take into account the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2). When one adds in the clear mistake in the doctor’s notes concerning Cowpasture Road, the reason for his Honour’s warning is apparent.

26. The plaintiff did not have a clear recollection of an interview with the police but accepted there was a Record of Interview (Exhibit B). The contents of the interview are generally consistent with the plaintiff’s version. The exception is the last question and answer: “Q. Anything else? A. Nah, I heard she was parked on the right hand side.” This answer suggests the plaintiff had not seen the defendant’s vehicle before the collision.

27. The plaintiff’s evidence on this point was confusing. What I gathered from his evidence was that he had seen parked vehicles but only identified the defendant’s vehicle as being one of those parked vehicles after the accident and having spoken to other persons at the scene.

28. It was suggested to the plaintiff that he had been distracted by a person or persons in the garden of the corner house that can be seen in Exhibit 5, photograph 1. He denied this suggestion and said that no persons could be seen in that garden because it was overgrown at the time.

29. The plaintiff said that when he was in the ambulance he heard the defendant say: “I’m sorry, I was looking at the street directory, I didn’t look forwards.”

30. Two independent witnesses were called by the respective parties. They were Mr and Mrs Waller who were travelling in a ‘people mover’ in the same direction as, and immediately behind, the plaintiff’s utility as it moved along Edensor Road. Mr Waller was the driver. Mrs Waller was in the front passenger seat. Their children were also in the vehicle.

31. Mrs Waller was called by the plaintiff. She said that her vehicle, a Toyota Tarago van, is a high vehicle so that she had a good view of the utility ahead of her as well as the general scene. I note here the plaintiff’s utility was a Holden Commodore. Mrs Waller said that she was travelling about two car lengths behind the utility as it approached the intersection. The utility slowed down to make the right hand turn. She could not recall if it came to a stop or if any other vehicles passed in the opposite direction before the utility commenced its turn.

32. Mrs Waller said that she could see the defendant’s vehicle parked about 20 metres from the intersection. She said that her husband veered to the left when it became obvious the utility was going to make a right hand turn. She said she saw the parked vehicle come out from the kerb and into the centre lane. It “accelerated quickly” and there was a collision with the utility (T 142.25). She said the front of the defendant’s vehicle hit the side of the utility. She did not see any indicator on the parked vehicle when it left the kerb. She said that the collision occurred when the utility was close to entering the side street.

33. Following the accident her husband pulled over and attended the scene. She carried on to a nearby sports field to drop one of her children at a fixture and then returned to the accident scene. I gathered that this exercise did not take very long.

34. On her return Mrs Waller said she spoke to the defendant. She asked the defendant if she was “OK” and suggested that she sit down. The defendant said to her “I just panicked when I saw him and just accelerated”.

35. It was put to Mrs Waller that she had mistaken what was said by the defendant. She said she had not. This is corroborated by her statement (Exhibit D, in which her surname is incorrectly recorded).

36. Mrs Waller was asked about whether the plaintiff waved as he took the corner. She said there was one or more persons in the garden of the corner house and she had seen the plaintiff wave. It was more an acknowledgment by hand rather than any extended greeting.

37. Mrs Waller was not able to be precise about the point of impact nor the timing of the utility commencing the right turn and the parked vehicle leaving the kerb. Nevertheless her evidence was that the front of the defendant’s vehicle struck the side of the utility. This I think supports the plaintiff’s version of the respective angles of initial contact, if not the exact point of impact.

38. I thought Mrs Waller was a very good witness doing her best to recollect the accident and taking advantage of the statement that she had made in February 2013 when her recollection would no doubt have been better than it is today.

39. There are, naturally, matters about which Mrs Waller is vague but to the extent that her recollection was clear I accept her evidence. This includes matters both in favour and against the versions of the respective parties. For example, she has the parked car further back from the intersection than the plaintiff suggested but, on the other hand, she suggests the defendant drove too quickly into the intersection.

40. Mr Waller was called by the defendant. Although there were differences with his wife’s evidence he was also an overtly honest witness. Some differences were obvious, although perhaps of little significance: Mrs Waller had the family in a Tarago; Mr Waller said it was a Volkswagen Caravelle. Mrs Waller had four children in the car, Mr Waller said the fourth child was not yet born but he added in two guinea pigs as passengers.

41. Mr Waller said that he saw the defendant’s vehicle parked about 20 metres beyond the intersection. This is consistent with his wife’s evidence. He said the defendant pulled into the traffic lane and then drove as if part of the oncoming traffic until the impact which occurred in the position he marked on Exhibit 9.

42. The difficulty I have with Mr Waller’s version is that there is simply not enough distance in the approximate 22 or 23 metres the defendant travelled for her to have joined the traffic lane and reached a speed necessary to create an impression of being part of oncoming traffic. The substantial damage to the defendant’s vehicle (Exhibit 8) at least suggests she was travelling at some speed when the impact occurred.

43. I note here that absent expert evidence I could not conclude that the pattern of damage shown in Exhibit 8 can be used to infer the angle of collision with the utility.

44. I accept Mrs Waller’s evidence that the defendant accelerated quickly after leaving the kerb. Mr Waller also said this at T 163.46: “I think she hit the gas pretty hard.” This is also consistent with the words spoken by the defendant to Mrs Waller.

45. Mr Waller also said that the plaintiff waved but identified the object of the gesture as being in a property on the western side of Markovina Street rather than the eastern side.

46. Because the plaintiff had been cross-examined about being diverted by (but not waving to) a person in a house on the other side of the road (T 122.43) I invited his counsel to recall him to deal with the evidence given by Mr Waller. The plaintiff had also said, in his earlier cross-examination, that he had often seen people in a different garden (T 122.33).

47. When the plaintiff returned to the witness box he said that having been reminded by the evidence of Mr Waller he did now recall seeing a friend, Diana, in the front of the double storey property which can be seen as the second house from the corner in photograph 1 of Exhibit 5. He said this occurred about 40 metres before the intersection and played no part in subsequent events because, after waving, he had brought his utility to a stop to allow two vehicles to pass.

48. I am satisfied that the plaintiff did wave to a friend but I can reach no conclusion that this gesture had any effect on the accident.

49. The defendant gave evidence. She presented as an apparently honest person, although did appear, in giving her answers, to be concerned to deflect any criticism of her actions.

50. The defendant said that she was working as a contract courier. She was on her way to Abbotsford to pick up a parcel on behalf of Foxtel. She knew Edensor Road very well. She was proceeding in a westerly direction. She pulled over about 25 metres before the intersection with Markovina Street. She telephoned the person to whose address she was travelling and then checked the address in her street directory. She was stationary for about “three minutes”.

51. The defendant said that having started her car and put on her indicators she checked the mirrors to see if there were any vehicles travelling in the lane that she was about to enter. She said she waited for two vehicles to pass.

52. The defendant’s evidence about the two vehicles is important. It is consistent with the plaintiff’s evidence that he waited for two vehicles to pass before he commenced his turn.

53. The two vehicles having passed, the defendant said she entered the lane and built up her speed towards 50 kilometres per hour.

54. She then saw the defendant’s vehicle coming across her path. This was moments before the collision.

55. The defendant said she had earlier seen the utility before she left the kerb. It was driving around the bend which can be seen in Exhibit 5, photograph 1. She said that it was then travelling at 50 to 60 kilometres per hour and there was nothing about it that made her think it was not going to proceed past the intersection and continue along Edensor Road.

56. The defendant accepted that she did not have the utility under observation between the two sightings, that is from her parked position until immediately before the collision.

57. The defendant placed the point of collision closer to the centre line (Exhibit 11, photograph 1). She also marked the place where she had parked in photographs 2, 4 and 5. She said the No Stopping sign which can be seen in photograph 5 was present at the time.

58. The defendant denied the conversations that were related by the plaintiff and Mrs Waller.

59. Initially the defendant said that the plaintiff was driving in a manner that implied he was continuing straight ahead. She was clearly suggesting that the plaintiff made a sudden turn at speed across her path. Under cross-examination she seemed to concede the possibility that the plaintiff may have slowed down.

60. The relevant point is that having left the kerb the defendant did not see the plaintiff as he approached the intersection and then prepared to make his turn. It is clear from the evidence of both Mr and Mrs Waller that the defendant slowed down in a manner consistent with either stopping or slowing down sufficiently to make the right hand turn. Having regard to the defendant’s evidence about the two vehicles I am satisfied that the plaintiff stopped or came to a near stop before entering the opposing traffic lane.

61. In my view the defendant having left the position in which she was parked proceeded without regard to traffic coming in the other direction, she having assumed that the utility, which she had last seen on the bend was not going to interfere with her path of travel.

62. The defendant said that she did not see indicators operating on the utility. Mr and Mrs Waller could not help on this point. I have no reason not to accept the plaintiff’s evidence that he indicated.

63. The defendant was cross-examined on her record of interview with the police (Exhibit 12). It contains two mistakes: firstly it suggests the defendant had not stopped on Edensor Road. She said she tried to correct the mistake but the officer said it wasn’t necessary. The second mistake is in the last answer which states: “I seen it but I thought he was going to stop, I didn’t have time to react.” The defendant agreed this was incorrect but said the statement had been taken when she was having treatment and in a great deal of pain. I accept her corrections and the reasons she may have given wrong answers.

21. Although I accept the versions of the conversations given by the plaintiff and Mrs Waller I do not think I am in a position to specifically find that the defendant deliberately accelerated to perhaps avoid a collision. On her own evidence she was accelerating. She was probably accelerating rapidly, as suggested by Mr Waller.

22. In my view the defendant, having checked her destination details, perhaps keen to get on with her work, accelerated rapidly into the traffic lane. In doing so I think she failed to have regard to what traffic was ahead of her, especially having assumed that the utility was going straight ahead. This assumption was not justified having regard to the distance of the utility from the intersection when the assumption was made.

23. On this basis I think the defendant has failed to keep a proper lookout and has breached her duty of care in the manner required by Section 5B of the CLA. I do not think, in a case of this nature, that it is necessary to dissect each element of this section. I think her negligence is encompassed by a failure to keep a proper look including not having proper regard to what known oncoming traffic might be doing.

24. I also think the plaintiff was negligent under Section 5R of the CLA. It is difficult to know precisely how far back from the intersection the defendant was parked. The plaintiff said about 15 metres, the Wallers said about 20 metres and the defendant said about 25 metres. Having regard to my overall acceptance of the Wallers and to the existence of the No Stopping sign, I think the probability is that the defendant was parked about 20 metres from the intersection.

25. The plaintiff, having allowed the two vehicles to pass, should have seen the defendant leaving the kerb and making her way towards the intersection. I think he has also failed to keep a proper lookout.

26. Section 5D of the CLA concerns causation. I am satisfied that the negligence of each party was a material cause of the accident. If the defendant had observed the oncoming traffic she could have waited for the plaintiff to pass. If the plaintiff had looked ahead before entering the intersection he could have delayed his turn. Thus but for their individual acts of negligence the collision would not have occurred.

27. The next issue is to assess the comparative liabilities of each party. In my view the parties were equally to blame for the accident. Although the plaintiff was making a right hand turn and thus would normally be seen as carrying all or a greater responsibility, the defendant has left her parked position without regard for oncoming traffic and done so at a relatively rapid rate.

28. Accordingly there will be a verdict for the plaintiff but his damages will be reduced by 50%.

After the accident

72. The plaintiff felt considerable pain after the impact. He may have briefly lost consciousness. He remembers being taken by ambulance to Liverpool Hospital. He had very severe chest pain consistent with the fracture that he had suffered to his sternum.

73. The plaintiff remained in Liverpool Hospital for three days. He says that besides the chest pain he also had pain in his neck, right shoulder and low back. He says that he told the hospital staff about these injuries and that he was sent for x-rays and remained in hospital while the injuries were monitored.

74. The hospital notes (Exhibit 1, from page 30) do not support the plaintiff’s assertions about his neck, shoulder and back. The notes make no reference to X-Rays of these parts of the plaintiff’s body.

75. This is not to say that the plaintiff did not have the pain, rather that he did not complain about them at the hospital. He did, however, mention his neck and right shoulder pains when he saw Dr Atto on 23 August 2012. The first apparent mention of low back pain in the doctor’s notes is on 29 October 2012 (Exhibit A, page 45) but the use of the word “still” in the history does raise the possibility that there had been an earlier complaint.

76. I think the following passage from Dr Mastroianni’s report (Exhibit A, page 74) is probably an accurate summary: “He states that in hospital he had bad chest pain and right shoulder pain. After a few weeks as the pain in the chest and shoulder improved he became more and more conscious of pain in the neck and back”.

77. The plaintiff said he has not returned to work since the accident. He says that from time to time he attends a work site with his son, also a formworker, and assists him by the offering of advice.

78. The plaintiff was ‘attacked’ on his assertion that he has not worked. It was submitted that the following matters all combine to suggest the plaintiff should not be believed: The plaintiff’s often description of being a formworker when asked to describe his occupation, the work vehicles in his yard, his use of an apparently business e-mail address, the entry in the clinical notes that he is “still working” as a concreter (Ex 2, page 16), Dr Harvey-Sutton’s observation of “textured” hands, the 2013 tax return and the pay slips which show payments after the accident.

79. Against the assertion that he carried on working the plaintiff pointed out that his Centrelink benefits (Exhibit C) started immediately and were supported by medical certificates. As to the pay slips he submitted that he could not have worked in the month after the accident because of his fractured sternum. He said he continued to be paid because his employer wanted him to return to work. The plaintiff submitted that the entry “still working” can be read as a question. I agree. I also agree that it is not unusual for a person to state his usual occupation notwithstanding that he is not working when asked the question. The plaintiff gave a reasonable explanation for his textured hands and said the 2013 tax return was simply wrong.

80. The plaintiff said that a company called Rockwood Group Pty Ltd (and its associated e-mail address) was owned by his son and although his son had used the plaintiff’s premises as a business yard for a period of time he had had no involvement in the business.

81. Although there was no explanation for the overtime entries in the pay slips I am satisfied that the plaintiff has not worked since the accident but has rather depended on Centrelink benefits. I note these benefits are for “multiple” causes which presumably includes his vision problems.

82. Shortly following the accident the plaintiff noticed deterioration in the condition of his left eye requiring further surgery which unfortunately was not as successful as the earlier surgery. This occurred in May 2014. The plaintiff says that his left eye is now effectively blind. The plaintiff initially thought the car accident was responsible for the deterioration but this has been excluded by expert opinion.

83. In addition, the plaintiff underwent cataract surgery on his right eye on 23 July 2013. This was successful and this eye functions well. The plaintiff said the condition of his eyes is such that he could work in his previous employment provided the work was not in a dark place.

84. The plaintiff is able to drive and to read well. He demonstrated the latter capacity in the witness box. I note here that although an interpreter was ‘on standby’ the plaintiff’s English was sound and the interpreter was not used.

85. The plaintiff said he was unable to work in any occupation. He accepted that a factor in this incapacity concerned the condition of his left eye. However, he said that the pain in his neck and back prevented him from doing both sedentary work and also more physical work such as that he performed before the accident. He said he could not drive a taxi or a courier van because of the length of time that he would need to be sitting down.

86. The plaintiff was cross-examined about a number of notes which had been prepared before eye surgery which indicated that he had no other physical problems. I do not think much weight can be placed on these documents. While the answers he gave are technically incorrect I do accept that a person about to undergo eye surgery could reasonably associate the questions with conditions that might be relevant to that surgery.

87. Notwithstanding this conclusion I do think there is an element of the plaintiff simply not being prepared to work on the basis that he has come to the conclusion that he is incapable of doing so. In my view he clearly has a retained capacity but is not motivated to seek employment. He said he is continually doing ‘courses’ through Centrelink but I was given no detail of these courses. There is no evidence of any single application for employment. I do not think he has attempted to mitigate his loss as required by Section 136 of the MACA. On his own admission the plaintiff does very little besides sitting at home (T 78.10). He did say this was partly due to his vision condition.

88. The plaintiff said that he paid a young man to mow his lawns. This person had been engaged from time to time prior to the accident when the plaintiff was busy but he was now utilised on a regular basis because the plaintiff said he was unable to push the lawnmower. The services were provided on an as needs basis depending on the weather and, as is usual, fluctuating significantly in frequency depending on whether it was summer or winter. The plaintiff pays $50 on each occasion.

89. The plaintiff initially said he was spending about $100 per month on medication but under cross-examination he accepted it was probably more like $5 to $10. He takes mostly Panadol but from time to time has Panadeine Forte which he finds in his house. There was no reason provided for the origin of this medication. The plaintiff agreed that he had not had any treatment from a medical practitioner since 2014.

90. The plaintiff did say that a friend provided him with a massage from time to time but, at least at the moment, this service was provided without charge.

91. My overall impression of the plaintiff was very similar to that stated by Dr Har Harvey-Sutton in paragraph 3.14 of her report (Exhibit 7, page 9). She said he “presented in a genuine and straightforward manner but there were positive non-organic/Waddell signs …”. I also thought the plaintiff presented credibly but yet the disability he claims is at odds with the objective evidence.

Medical reports

92. The plaintiff has not had much treatment. He seems to have relied mostly on his general practitioner and the massages he obtains from a friend. He has not been referred, other than for his eyes, to any specialist. He did see, but at the request of his solicitors, an occupational physician, Dr Mastroianni (Exhibit A, page 73). This doctor noted that a CT scan of the neck showed minor degenerative changes and an MRI scan of the plaintiff’s low back showed degenerative disc disease. Dr Mastroianni was of the view that besides the fracture to the sternum the plaintiff sustained soft tissue injuries in his neck, back and right shoulder. He said that the plaintiff was unfit to return to work as a contractor and has “permanent restrictions in heavy physical work and only fit for sedentary work”.

93. Notwithstanding his conclusion I do not think Dr Mastroianni gives an understandable reason for his conclusion. His diagnosis at page 77 of Exhibit A does not, in my view, justify or explain the very pessimistic assessment of the plaintiff’s capacity to work.

94. The plaintiff saw an occupational therapist, Ms Walters (Exhibit A, page 81). She has a number of recommendations which in my view are not supported by the balance of the evidence. Her prescription for future care was not taken up by the plaintiff who restricted his claim to the cost of lawn mowing.

95. As already noted, Dr Harvey-Sutton, also an occupational physician, saw the plaintiff on behalf of the defendant. She said that:

“Based on the nature of the physical injuries sustained, with the undisplaced fracture of the sternum, it was consistent that he may have been unable to return to his pre-injury work for some 6 to 12 months and at most 18 months.”

96. The defendant submitted that the 18 months referred to by Dr Harvey-Sutton should be reduced to six months because of “credit issues” of which the doctor was not aware. I disagree. I think Dr Harvey-Sutton has reached an appropriate conclusion in assessing the plaintiff’s condition, taking into account the detailed history which she gives, her observations and her assessment of the radiological investigations.

97. I do, however, think a distinction needs to be made concerning the low back. Dr Harvey-Sutton described this as a pre-existing condition. On my reading of the history concerning the consultations with Dr Beran and the description of the symptoms described before the accident I think the plaintiff’s post-accident back condition is different. This is not to say it is as serious as the plaintiff makes out but nevertheless I am satisfied that he did have a soft tissue injury to his low back.

98. Dr Delaney saw the plaintiff on behalf of the defendant. He is an ophthalmic surgeon. Dr Delaney did not think the plaintiff was ready to be finally assessed in relation to his vision. He said that there was normal vision in the right eye and the plaintiff:

“Would be fit to carry out all forms of clerical work and most forms of work except that involving fine binocular vision and stereopsis. He would not be able to work in any dusty environments or where there are noxious fumes due to possible further damage to his recent corneal graft. Mr Georges would also have to take additional care when working at heights or near moving machinery.”

99. At the stage of Dr Delaney’s assessment, which was only some three months after the second corneal graft, the ‘failure’ of the operation had not become apparent. Dr Delaney envisaged a 5% impairment of vision in the left eye. This has turned out to be incorrect with the plaintiff saying he is virtually blind in his left eye. The effect is that more emphasis must be given to the plaintiff’s visual impairments when assessing his economic capacity. The plaintiff said that work sites were always dusty and given the condition of his left eye, and therefore the almost total dependence on the right eye, the plaintiff will obviously need to be extremely cautious in choosing his work place.

100. The inevitable conclusion that I draw from Dr Delaney’s opinion is that the plaintiff’s visual condition has a significant impact on his capacity to work. This would have been the case without the motor vehicle accident.

Damages

101. The plaintiff’s revised approach to past economic loss was as follows: there have been 183 weeks since the accident. The plaintiff’s net weekly wage at the date of the accident was $1,256.70. The plaintiff discounted the number of weeks down to 52 to take into account the effect of his vision problems on his overall capacity to work. The plaintiff’s weekly wage was derived from the payslips. My calculation, from the same source, produced a figure of $1,189.85. The plaintiff’s counsel fairly adopted this figure.

102. The defendant said the payslips should not be used because they only went back about two months. He said a more reliable approach was to look at the plaintiff’s tax returns since 2006 which revealed a net weekly wage of $286. The defendant then allowed six months plus superannuation at this rate to produce the suggested damages of $8,253.

103. The difficulty with the defendant’s approach is that it encompasses periods when the plaintiff was off work due to his left eye condition. Further I am measuring his work capacity. This has been demonstrated in the two months before the accident. The other factors, concerning the longer history are to be taken into account in assessing damages including vicissitudes.

104. I think the plaintiff’s approach is appropriate. It takes into account both the continuing deterioration in the plaintiff’s eye condition, his need for surgery and also, importantly, the 52 weeks is the midpoint of Dr Harvey-Sutton’s suggestion of a possible diminished earning capacity for six to 18 months. However I think there needs to be a further reduction to reflect the four weeks for which the plaintiff was paid after the accident.

105. The calculation of past economic loss is therefore: 48 x $1,189.85 = $57,112.80. Lost superannuation benefits at 11% are $6,282.40.

106. In respect of future economic loss, the plaintiff’s revised schedule claimed $420 net per week to age 67. In final submissions, this claim was further revised to a buffer of about $100,000.

107. The defendant says there should be no allowance.

108. As I have said I accept Dr Harvey-Sutton’s opinion subject to the injury to the low back. In my view, consistent with that opinion, the plaintiff’s soft tissue injuries to his neck and right shoulder have now resolved to an extent that allows him (not having any regard to his visual problems) to perform his pre-injury work. Even if he could not do the heavier aspects of the work he would be well suited to a supervisory position. As far as his low back is concerned I also think it has resolved although I do accept that it may still ache from time to time but not to an extent that has any permanent effect on his continuing capacity to earn.

109. I intend however to allow the plaintiff a small buffer to cater for the fact that from time to time his soft tissue injuries could impede his capacity to work, especially as a formworker, but noting also the effects of his vision problems on his capacity to work at building sites where there is likely to be a good deal of dust.

110. Before deciding on this buffer however it is necessary to make findings under Section 126 of the MACA. I am satisfied that but for the accident the plaintiff would have continued to work as a formworker for as long as his vision problems permitted him to do so and that there would have been substantial interruptions for treatment purposes. I think that his vicissitudes would have been significantly higher than the standard 15%, probably in the order of 50%.

111. As I have already said I think the only way to approach the plaintiff’s future economic loss is by way of a buffer which must be small taking into account both the vision problems and my conclusion that he has generally recovered his economic capacity to the extent that it involves the use of his neck, shoulder and back. The plaintiff has 15 years of his working life remaining. I think a buffer of $20,000 is appropriate. Lost superannuation benefits at 14% are $2,800.

112. The plaintiff’s claim for future care is restricted to the cost of lawn mowing at $50 on 16 occasions a year. This has been claimed for the balance of the plaintiff’s life expectancy.

113. The defendant says there should be no allowance.

114. As with economic loss I think the plaintiff may from time to time have difficulties with his back which could impact on his ability to mow the lawn but his vision problems remain a significant factor especially having regard to material that one normally expects to be thrown into the air during the mowing process. The plaintiff could perhaps wear goggles to protect his eye but I think this remains a significant problem. Once again I intend to approach the matter on the basis of a small buffer. I allow $1,000.

115. Out of pocket expenses, after the deduction of Section 83 (of the MACA) expenses were agreed at $2085.00.

116. The plaintiff claimed $7,878.50 for future medical expenses. This includes $15-$20 per month for pain killing medication and an allowance for the cortisone injections suggested by Dr Mastroianni. I have preferred Dr Harvey-Sutton’s opinion on the plaintiff’s shoulder but accept he takes Panadol from time to time. I allow $1,000 for such future medication as he might need.

117. A summary of the damages that I have allowed is as follows:

Past economic loss	$57,112.80
Past superannuation	$6,282.40
Future economic loss	$20,000.00
Lost future superannuation benefits	$2,800.00
Past medical expenses	$2,085.00
Future medical expenses	$1,000.00
Future lawnmowing	$1,000.00
Total	$90,280.20

118. The total of $90,280.20 must be reduced by 50% to take into account my findings on contributory negligence. The resulting figure is $45,140.10.

Orders

119. I make the following orders:

1. Judgment for the plaintiff for $45,140.10.

2. The defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits may be returned.

120. I will hear the parties if any special costs orders are sought.

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Decision last updated: 19 February 2016