Haidari v Max Lucas Development and Construction (Assessment of damages)
[2024] VCC 865
•17 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-04597
| Mohammad Qasim Haidari | Plaintiff |
| v | |
| Victorian Workcover Authority | First Defendant |
And
| Shangri-La Construction Pty Ltd | Second Defendant |
And
| Max Lucas Development and Construction Pty Ltd | Third Defendant |
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JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2024 | |
DATE OF JUDGMENT: | 17 June 2024 | |
CASE MAY BE CITED AS: | Haidari v Max Lucas Development and Construction (Assessment of damages) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 865 | |
REASONS FOR JUDGMENT
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Subject:Assessment of Damages
Catchwords: Judgment entered in default of appearance – Defendant taken to have admitted allegations of negligence – Jury returned verdict of no negligence against first and second defendants - Spine and neck injury – Medical evidence heard at trial
Legislation Cited: Corporations Act 2001
County Court Civil Procedure Rules 2018
Cases Cited:Todorovic v Waller [1981] HCA 72
Judgment: Judgment entered against third defendant pursuant to Order 21 of the County Court Civil Procedure Rules 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | - | - |
| For the Defendant | - | - |
HER HONOUR:
1Mr Haidari was injured when he struck his head on a timber beam (“the accident”) at a construction site on 29 January 2016.
2He issued proceedings against the Victorian WorkCover Authority pursuant to s601AG of the Corporations Act 2001 alleging negligence against his employer, IM Building Pty Ltd. He subsequently joined the head contractor of the construction site as the second defendant, and the plastering subcontractor for the site as the third defendant.
3The third defendant did not enter an appearance or defence and on 16 February 2023 judgment in default of appearance was entered, with damages to be assessed pursuant to Order 21.01 of the County Court Civil Procedure Rules 2018. (“the Rules”)
4Mr Haidari’s claim against the employer and the second defendant went to trial before a jury on 30 April 2024. On 9 May 2024 the jury returned its verdict. The jury found that there was no negligence on behalf of the employer or the second defendant that was a cause of injury to Mr Haidari.
5Because he has obtained judgment in default against the third defendant, damages against the third defendant must now be assessed. By reason of the jury’s verdict, there is no requirement to apportion damages.
6Pursuant to Order 51.05, where judgment is entered in default and the proceeding is continued against other defendants, damages are to be assessed at the trial.[1] As the jury returned a verdict that did not enliven the question of damages against the first or second defendant the assessment of damages falls to the Court.
[1] County Court Civil Procedure Rules 2018
7For the avoidance of doubt, I consider it appropriate that I assess damages as I have the benefit of having heard all the evidence at trial, and therefore order, pursuant to Order 21.03(3) that the assessment not be conducted by a judicial registrar.[2]
[2] Ibid
8As the provisions of Order 51.05 require that the assessment of damages be done at trial[3] this means that the assessment occurs after all the evidence is heard, including that put on by the other defendants.
[3] Ibid
9Further, although a plaintiff is entitled to the benefit of judgment in default, it is appropriate that the assessment of damages is made on all the available evidence so as to ensure that the interests of justice are served.
10The principle upon which damages for personal injury are awarded are well known:
“… a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries.”[4]
[4] Todorovic v Waller [1981] HCA 72; 150 CLR 402 at paragraph [6]
11My task is therefore to assess fair and reasonable compensation for the plaintiff based on all the evidence, but taking his pleaded case against the third defendant as being admitted.
The Evidence
The Accident
12Mr Haidari said the accident occurred on 29 January 2016 when he was working as a plasterer at a construction site. The system of work required Mr Haidari to move plasterboard from a pallet in one partially built room to various other incomplete rooms to affix it to the walls.
13Mr Haidari says that the only access out of the room in which the plasterboard pallet was located was through a “stud gap” in an incomplete wall. There was a horizontal timber beam at about 1.6 meters height across the gap [5]. This means that Mr Haidari had to duck his head when he went in or out of the room.
[5] T132 L 12-24
14On one occasion, when returning to the room in which the plasterboard was located, Mr Haidari struck his forehead “pretty hard” on the beam.[6]
[6] T136 L 23
15Mr Haidari said he was “out of it” for about five seconds after the accident, and then tried to continue with his work.[7] He felt immediate weakness in his right arm and pain in his neck which “got worse and worse”. He could not lift the plasterboard.[8] After a short coffee break, Mr Haidari informed his boss Mr Hamid and his coworker Zahim about the accident.
[7] T136 L 7
[8] T136 L 21
16He was unable to continue working. He attended a local doctor and subsequently saw his own general practitioner. He has not returned to work since that date.
Pain
17Mr Haidari describes his pain in the aftermath and continuing to the present day as radiating pain from his neck down into his right arm, most specifically into the thumb and forefinger. He describes numbness and weakness in his right arm and shoulder. He has periodic headaches.
18Mr Haidari reports difficulties:
(a) Sleeping, and shifting in his sleep;
(b) Driving his children to school;
(c) Sitting still for extended periods; and
(d) Lifting objects.
Psychological impact
19Mr Haidari had some history of depressed mood whilst detained in Curtin detention centre in 2011-2012. He received anti-depressant medication at that time and his symptoms abated.
20Mr Haidari says once he settled in Australia he did not have anxiety, depression, or other mood disturbances until the date of the accident. He also has no family history of psychiatric illness.
21Since the accident Mr Haidari’s says he has developed a range of psychological symptoms including sleep and appetite disturbance, loss of libido, social withdrawal, difficulties with memory and concentration, and a loss of self-esteem.
22Mr Haidari told Dr Kaplan that his social life was affected by the accident as he was now irritable in that “the small things get [him] angry and [he] want[s] to be alone”.[9]
[9] T369 L17
23In June 2016 Mr Haidari began to self-harm by burning his arms with cigarettes. Mr Haidari attended his general practitioner Mr Sebti for treatment.[10] He attributes this self-harm to his psychological condition caused by his ongoing pain and anxiety about being unable to work and provide financial support to his family.
[10] T140 L3
24In January 2017 Mr Haidari reported to his general practitioner that he had been struggling with thoughts of killing himself whilst driving. Mr Haidari was admitted to hospital for treatment. He was given anti-depressant medication.[11] The CAT team was involved in ongoing monitoring for a period.[12]
[11] Plaintiffs Amended Court Book (“PACB”) page 145
[12] T141 L1
25Mr Haidari says his suicidal ideation resolved as a result of continued medication and treatment, but he has “no happiness or enjoyment in his life”.[13]
[13] PACB 234
26Since the accident, he says he feels “broken” as a result of the stress of not being able to support his family as he was no longer able to work.[14] He reports “a sense of hopeless and worthlessness” as a result of his loss of capacity due to his injury.[15]
[14] T 139 L21
[15] PACB 131
27Mr Haidari was assessed by psychologist Srdevi Kolli as “Severe” or “Extremely Severe” in the categories of Depression, Anxiety and Stress[16] on the Depression, Anxiety and Stress Scale (“DASS”) test in January 2021.
[16] PACB 123
Treatment
28Immediately after the accident, Mr Haidari saw Dr Zhao at the nearby South Yarra Plaza. He was provided with painkillers and referred to an osteopath.
29On 30 January 2016, Mr Haidari attended South Yarra Osteopathy where he received a neck and shoulder massage, but this did little to alleviate his symptoms.
30On 1 February 2016, Mr Haidari saw his general practitioner, Mr Sebti at the Dandenong super clinic.
31MRI scans showed a disc bulge at C5/6 and C6/7 without spinal canal or exit foraminal narrowing. On 10 March 2016 Mr Haidari saw neurologist Mr Dr Bruce Campbell who recommended conservative treatment.
32In March 2017 Mr Haidari began therapy with a psychologist, Mr Saunders.
33In July 2020 Mr Haidari was referred for further psychological treatment under a mental health care plan with psychologist Sredevi Kolli. Mr Haidari recommenced therapy in 2024 and says these sessions help calm him temporarily.[17]
[17] PACB 153
34Mr Haidari currently takes between 4 and 6 Panadol Osteo tablets a day, Lyrica 300mg each evening, Mobic each evening and Panamax for headaches. In addition, he takes mirtazapine 30mg daily and Nexium.[18]
[18] PACB 169
Working capacity
35Mr Haidari says he has no working capacity due to his pain and muscle weakness as well as his psychiatric condition.
36I accept Mr Haidari’s evidence about the circumstances of the accident and the immediate aftermath of the accident.
37The symptoms he immediately experienced are consistent with the manner in which he said the accident occurred. His description of immediate weakness in his right arm is consistent with neurological injury.
38His reports about the accident and his symptoms have been consistent since injury. Those accounts have not been identical as would not be expected after eight years. But there has been no significant divergence since the accident and I am satisfied that the injury occurred in the manner he says.
39In any event, the third defendant is taken to have admitted that the injury occurred as Mr Haidari says.
Treating doctors
Dr Hill – treating general practitioner
40Dr Hill has been Mr Haidari’s treating general practitioner for many years and works at the same clinic as Dr Sebti, the general practitioner who saw Mr Haidari before and immediately after the accident in 2016.
41He considered Mr Haidari’s psychiatric condition was currently the predominant issue for him. He acknowledged that Mr Haidari might have some work capacity in some occupations but expressed his doubt that a suitable occupation could be found, having regard to Mr Haidari’s physical and mental problems.
Mr Timms – treating neurosurgeon
42Mr Timms said he examined Mr Haidari and found he had a sensory deficit and numbness that was likely due to nerve compression in the neck.[19]
[19] T 350 L20-30
43On the two occasions Mr Timms had examined Mr Haidari he considered Mr Haidari had no work capacity, but he had not seen Mr Haidari since 2019.
44He agreed that he had expected Mr Haidari’s symptoms to improve over time but noted that he had not had any real treatment to help them improve.[20].
[20] T 356 L19-20
45He was not able to comment on whether Mr Haidari had developed a pain syndrome.
Expert evidence
Mr Awad - medico-legal neurosurgeon
46Mr Awad prepared three reports and gave evidence at trial. He diagnosed Mr Haidari with an aggravation of cervical spondylosis and right arm radiculopathy.
47Mr Awad said that the classic nerve distribution of the C6 nerve will be along the arm and down into the thumb and forefinger. His clinical examination of Mr Haidari confirmed the radiological picture, which was that Mr Haidari had disrupted discs at C5/6 and C6/7. His experience of pain and the distribution of that pain matched the clinical picture.
48He found lower power in the biceps and triceps which was consistent with damage to C6 and C7 nerve roots.
49He said that the injury Mr Haidari suffered when he hit his head on the low beam was likely an axial loading injury and possibly a hyperextension injury. This caused pressure on the cervical discs, which in turn caused impingement of the nerve. this mechanism of injury was consistent with his symptoms.
50He disagreed that Mr Haidari’s injury could be explained by age related degenerative change compounded by a soft tissue injury which had resolved. He said “that wouldn’t make sense because a soft tissue injury wouldn’t give you radiological stunning, which is that very classic description that the patient gave, which is when he had the injury he felt the symptoms initially down his arms.’[21]
[21] T298 L 13-17
51He considered Mr Haidari incapacitated for his former occupation, but accepted that he might be able to undertake sedentary duties, for example assisting at a cash register.[22]
[22] T294 L 2-6
52Mr Awad set out a clear path of reasoning to support his findings. He considered the immediate effects of the accident reported by Mr Haidari, conducted his own neurological examination, and reviewed the radiology.
53I accept that, as a neurosurgeon, he has great expertise in cervical spinal injuries. His articulation of the mechanism of injury was logical, and consistent with the contemporaneous evidence.
54As a witness he made appropriate concessions. He was not trying to defend his position and did not have to strain his evidence to support his conclusions.
55I had no difficulty accepting Mr Awad’s evidence.
Mr Sim - medico-legal orthopaedic surgeon
56Mr Sim prepared three reports and gave evidence at trial. He diagnosed a resolving but persistent pain syndrome. He noted minor pre-existing degenerative disc pathology which may have pre-disposed Mr Haidari to more severe pain as a result of the accident.
57He considered it probable that Mr Haidari’s condition was no longer due to physical factors.
58Under cross examination he accepted that he had not seen MRI scans showing moderate impingement of the right C6 nerve root.
59He accepted that those findings may be significant, but did not accord with his clinical findings when he did a neurological examination in 2018. He said nerve root involvement is a commonly reported change on MRI but is not relevant until it correlates with clinical examination.[23]
[23] T 667 L 4-25
60He agreed that nerve root impingement is consistent with altered sensation in the thumb and index finger.
Dr Yong – medico-legal occupational physician
61Dr Yong prepared three reports and gave evidence at trial. He gave an opinion that, when distracted, Mr Haidari moved his neck reasonably freely but had more limitation of movement during the formal assessment.
62He agreed that the symptoms Mr Haidari reported were consistent with an injury to the nerve roots in the cervical spine.[24] He agreed that moderate impingement of the right C6 nerve was consistent with pain in the right arm and altered sensation in the index finger and thumb.[25]
[24] T551 L 1-8
[25] T 553 L 17-21
63He said Lyrica, a medication for nerve pain prescribed to the plaintiff, had known side effects including drowsiness and dizziness.
64He deferred to Mr Awad in relation to the neurological injury.
65He considered Mr Haidari had capacity to work in a limited range of occupations including light picking work and traffic control or school crossing supervisor work.
Dr Raghozar – medico-legal occupational physician
66Dr Raghozar prepared three reports and gave evidence at trial.
67He considered that Mr Haidari had no organic basis for his current symptoms, and that the radiological findings were irrelevant because they did not conform to Dr Raghozar’s clinical examination. He said that diffuse arm pain was not consistent with nerve impingement and Mr Haidari more likely had developed a pain syndrome.
68He considered the neurological stunning effect that Mr Haidari experienced immediately after the accident could have been caused by a soft tissue injury which in turn caused a muscle spasm which then caused a nerve impingement which subsequently resolved.
69He considered Mr Haidari had capacity for a number of occupations.
70Mr Ragohzar’s explanation for the neurological stunning experienced by Mr Haidari at the time of the accident, while no doubt medically correct, appeared to be an attempt to avoid the more direct and obvious explanation provided by Mr Awad by posing an alternative mechanism that confirmed with Dr Raghozar’s view that Mr Haidari only had a soft tissue injury.
71The clinical examination conducted by the experts retained by the defendant did not entirely concur with the clinical examination conducted by the treating neurosurgeon Mr Timms and by Dr Awad.
72Having regard to the fact that there are radiological findings consistent with the clinical picture identified by Mr Timms and Mr Awad, and the fact that Mr Sim had not reviewed the MRI reports showing moderate C6 nerve impingement, I prefer the evidence of Mr Awad.
Dr Kaplan – medico-legal psychiatrist
73Dr Kaplan prepared three reports and provided evidence at trial. He diagnosed an adjustment disorder with mixed anxiety and depression which resulted in a range of symptoms, including sleep and appetite disturbance, low frustration tolerance, social withdrawal, difficulties with memory and concentration, loss of self-esteem and fleeting thoughts of suicide.
74He considered Mr Haidari’s psychological state would not be likely to change without significant improvement in his physical symptoms, and that his condition largely arose as a result of his physical condition, and its consequences, in particular the financial stress occasioned by his inability to work.
75He considered that Mr Haidari’s psychological condition impacted his ability to work, but his work capacity would be largely determined by physical, rather than psychiatric, restrictions.
Associate Professor Doherty - medico-legal psychiatrist
76Associate Professor Doherty prepared four reports and gave evidence at trial. Associate Professor Doherty diagnosed an adjustment disorder with some maladaptive behaviours.
77He considered Mr Haidari’s prognosis favourable as he appeared to be making progress, his social situation had improved, and he was taking less antidepressant medication than previously.
78From a psychiatric point of view he considered Mr Haidari had a full time work capacity.
Findings on medical evidence
79To the extent that the opinions of experts diverge, for the reasons set out above in relation to physical injury, I accept the opinion of Mr Awad and Mr Timms that there is an organic basis for Mr Haidari’s symptoms and that his symptoms are consistent with the mechanism of injury, his description of events and the radiology findings.
80Accordingly, I am satisfied that Mr Haidari has an ongoing condition of the cervical spine that causes pain and symptoms, particularly in his right arm, and which preclude him from engaging in his pre-injury work.
81If I am mistaken in that assessment, then I am satisfied that his injury caused or contributed to the development of a pain syndrome. I understand that psycho-social factors have a role in the development of such a syndrome. I accept that Mr Haidari has had numerous stressors in his life that are unrelated to the work injury.
82However, I accept his evidence that his unrelated stressors, for example his anxiety about the welfare of his family in Afghanistan, was significantly aggravated by his feelings of hopelessness at being unable to provide financial support for them due to his physical injury. Although he refers to his concerns about his family in contemporaneous medical attendances, including his hospital attendance, it is significant that he also mentions his work injury.
83It is common sense that anxiety for his family would increase in circumstances where he was unable to provide financial support. His family’s capacity to avoid harm in a dangerous situation would likely be improved with financial support and decreased without it. The fact that his psychiatric condition has remained substantially unchanged despite his family now being in Australia suggest that other factors continue to contribute to his mental state. I am satisfied that his pain and his inability to work in his former occupation are factors that contribute to his mental state.
Work Capacity
84I consider his general practitioner, Dr Hill, is best placed to assess his working capacity, as he has treated him over a number of years.
85Given that I largely accept Mr Haidari’s reports of his mental state and his pain, I consider any theoretical work capacity he might have is so limited that the realistic prospects of his finding work are negligible.
86I accept his evidence that work as a school crossing supervisor would be unsuitable, given the effects of his medication.
87I accept his evidence that, even working in a sedentary capacity as a cashier in his uncle’s shop would not be suitable as customers would require assistance with picking up heavy items, such as oil. I accept that, even though he may have capacity on a particular day for a task, he would not be able to attend reliably and consistently.
88Accordingly, I am satisfied that he has no real working capacity in suitable employment and is unlikely to have any real working capacity into the future.
89I accept his evidence that, had he remained as a plasterer, he would have had an earning capacity in excess of his previous earnings. I accept the evidence of Zahim that he pays his plasterers between $45 and $55 an hour and that a specialist plasterer could command higher amounts than that.[26]
[26] T309 L6
90Accordingly, I am satisfied that the scenario 2 provided by forensic account Mr Plover where Mr Hairdari continued employment as a plasterer is a reasonable, if not conservative scenario and I accept that evidence.
91Given that all the medical evidence supports a finding that Mr Haidari has underlying degenerative disease, and given the heavy nature of his previous work and the physical nature of being a plasterer, I consider it likely he would not have worked to 67. I therefore consider 65 is a reasonable retirement age in the circumstances.
Assessment of damages
General damages for pain and suffering and loss of enjoyment of life
92I accept Mr Haidari’s evidence about the impact of this injury on his life. I accept that he has significant, ongoing pain which will likely persist. He is on significant doses of medication.
93The plaintiff submits that he has a significant, life-long impairment that will afflict him for the rest of his life. He submits that the appropriate range of general damages is $300,000 to $350,000.
94The purpose of damages is to restore, as far as it is possible to do so by the award of monetary compensation, the injured person to the position they would have been in had the tortious conduct not occurred.
95Awards of damages in other cases can be of some assistance, but even cases where the injuries sustained are similar, can only provide a modicum of guidance.
96Ultimately, each case will turn on its own facts and the assessment of the pain and suffering that each individual has experienced.
97Mr Haidari was a man who has been through a great deal in his life. He came to Australia to start a new life and hoped to bring his family out. He had found a place to live, made friends and obtained work. He was able to return to see his family several times prior to the injury and was hopeful of bringing them to Australia.
98His life was progressing as he hoped and expected, notwithstanding the traumatic events of his past.
99This injury changed the landscape of his life in a significant way. His pain and the consequences of his pain have derailed his life. Although he has been able to bring his family to Australia and has grown his family, he has not been able to work. This has caused him to become depressed and anxious. I accept that it was this depression and anxiety that was responsible for his self-harming behaviours and greatly contributed to his feelings of suicidality.
100I accept that the degree of pain he experiences significantly impacts on his enjoyment of life and his activities of daily living.
101I note that he has not had any surgery and it is unlikely that surgical intervention would be recommended. He will likely require ongoing pain management and is likely to require prescription medication for the foreseeable future.
102Weighing up all these factors I consider an appropriate sum to compensate for his pain and suffering and loss of enjoyment of life is $300,000.
Pecuniary Loss
103For the reasons set out above I have adopted the calculations provided by Mr Plover in scenario 2 of his report up to the age of 65.
104I consider that this is a conservative picture that that essentially sees Mr Haidari continue to earn $30 an hour for the balance of his working life. This, in my view, adequately makes allowance for the prospect that there may have been periods during Mr Haidari’s working life where he did not work, due to return trips to Pakistan before his family joined him in Australia, and periods when he was not able to obtain work. These periods would be offset by periods when he worked more than 40 hours a week, and periods where he earned more than $30 an hour.
105This conservative estimate also adequately accounts for the potential reduction in work during the COVID-19 lockdowns. I note that, since the end of the lockdown periods, there has been great demand for construction-based trades, and it is likely that Mr Haidari would have found an abundance of work.
106As the scenario proposed is, in my view, a conservative, albeit fair scenario, I do not think that a high discount for vicissitudes is required. I accept that Mr Haidari has an underlying degenerative condition and had engaged in periods of very heavy labour during his life prior to injury, which could have impacted on his future capacity. I consider an amount of 15% to be an appropriate discount for vicissitudes.
107Accordingly, I award Mr Haidari an amount of $328,355 for his past pecuniary loss and $561,425 for his future loss of earning capacity.
108I note that in his pleadings, Mr Haidari merely seeks damages. Mr Haidari is also entitled to interest on his damages. I am not aware of what, if any, compensation Mr Haidari has already received by way of impairment benefits or weekly payments of compensation. If he has received payments he may have an entitlement to Fox v Wood damages. Any such payments will have to be taken into account as an adjustment of the total sum payable by the third defendant.
109In his particulars of special damages, Mr Haidari claims a past and future loss of superannuation contributions, although in his calculations Mr Plover has noted that Mr Haidari was presumed to perform work as a self-insured contractor and would be responsible for his own superannuation contributions. Mr Plover has dealt with the issue of superannuation by embedding such benefits into assumed business profits. I have accepted Mr Plover’s calculations on this aspect of his claim.
Orders
110Subject to the plaintiff advising the Court as to the component of any Fox v Wood damages and any payment of compensation required to be deducted from any amount received, the plaintiff is awarded the sum of:
(a) $300,000 plus interest for pain and suffering damages plus interest;
(b) $328,355 for past pecuniary loss, plus interest;
(c) $561,425 for future economic loss;
(d) Costs
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