Hodge v Gladesville Bridge Marina Pty Limited

[2006] NSWSC 911

CITATION:	Hodge v Gladesville Bridge Marina Pty Limited [2006] NSWSC 911
HEARING DATE(S):	30-31/05/05, 1-2/06/05, 1-2/05/06, 4/05/06
JUDGMENT DATE :	8 September 2006
JUDGMENT OF:	James J at 1
DECISION:	Verdict for the plaintiff - damages partly assessed
PARTIES:	Hodge v Gladesville Bridge Marina Pty Limited
FILE NUMBER(S):	SC 20555/01
COUNSEL:	D Elliott - Plaintiff D Priestley - Defendant
SOLICITORS:	G.H. Healey & Co Rankin Nathan Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

8 September 2006

20555/01 HODGE v GLADESVILLE BRIDGE MARINA PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an action for damages for personal injuries which the plaintiff Mr Hodge claims that he suffered in an accident occurring on 25 February 2000, while he was employed by the defendant Gladesville Bridge Marina Pty Limited. The plaintiff alleges that, while he was performing the task of washing with acid the hull of a boat which was on a slip at the defendant’s Marina at Drummoyne, drops of the acid entered his eyes, injuring them. The plaintiff also alleges that he has suffered psychological injury as a result of the accident.

2 A number of particulars of alleged negligence on the part of the defendant are set out in the plaintiff’s statement of claim. The particulars of negligence which were most strongly pressed at the hearing were that the defendant had failed to take reasonable care for the safety of the plaintiff, in not training the plaintiff in the task of acid washing a boat, in not providing protective goggles for the plaintiff to wear when acid washing a boat and in not instituting and maintaining a system of work in which the plaintiff was required to wear protective goggles when acid washing a boat. In its defence the defendant denied that it had been negligent and alleged that the plaintiff had been guilty of contributory negligence.

3 As the accident occurred as long ago as 25 February 2000, the assessment of any damages is governed by the Workers Compensation Act 1987, as then in force.

4 At the trial oral evidence was given in the plaintiff’s case by lay witnesses, being the plaintiff himself, his partner Ms Sarah Walker and Mr Bruce Schultz, who was another employee of the defendant, and by expert witnesses, being Mr Spencer, an occupational health and safety expert; Dr Delaney, an ophthalmic surgeon; Professor Kennett, a psychologist; and Dr Barold, a medical practitioner with a special interest in occupational health. Reports by the expert witnesses I have listed and by some other expert witnesses who did not give oral evidence at the hearing were also admitted into evidence.

5 At the trial evidence was given in the defendant’s case by lay witnesses, being Mr John Webb, an employee of the defendant; Mr Phillip Southcombe, the managing director of the defendant; and Mr Danny Southcombe, Mr Phillip Southcombe’s son. Reports by a number of expert witnesses were admitted into evidence in the defendant’s case. None of these experts were required to attend for cross-examination on their reports and they did not give oral evidence.

The Plaintiff’s Evidence about events leading up to the accident and the accident itself

6 The plaintiff gave the following evidence about events leading up to the accident and the accident itself.

7 The plaintiff, who was born on 30 August 1977, became employed by the defendant under a brief written contract of employment dated 26 November 1999. The plaintiff had been introduced to Mr Phillip Southcombe (who I will refer to as “Mr Southcombe”) by Bruce Schultz, who had gone to school with the plaintiff and who was already employed by the defendant.

8 The plaintiff gave evidence that he was employed as a tender boat operator and slipway technician and I accept this evidence. Mr Southcombe asserted in his evidence that the plaintiff as a new employee could not drive the tender boat but this seems inconsistent with evidence that at times the plaintiff worked unassisted at the Marina.

9 As a slipway technician the plaintiff’s duties included the anti-fouling of the hulls of boats. A boat would be winched out of the water on to a slip or cradle and the hull would then be scrapped with a scraper and cleaned with water under pressure and would then be washed with acid.

10 The plaintiff gave evidence, which was disputed, that prior to 25 February 2000 he had never acid washed a boat at the Marina, that he had not received any instructions about how to acid wash a boat and that all he knew about acid washing a boat had been acquired by him by observing other employees of the defendant performing the task. He had observed those other employees dip a long handled broom into a bucket containing acid and brush the acid over the hull of the boat, while standing underneath the boat and working above their heads.

11 The plaintiff gave evidence, which was disputed, that he had never seen any of the other employees of the defendant using any safety equipment, including goggles, while acid washing a boat.

12 The plaintiff gave evidence that on 25 February 2000, while preparing a boat for anti-fouling, he was told by Mr Southcombe:- “Drop what you are doing and go and get that boat that is tangled on the mooring rope out of my Marina before it causes any more damage”. The plaintiff said that a boat had its propellor tangled in a mooring rope.

13 The plaintiff gave the following further evidence:-

“I jumped into the tender boat and went out and pulled up alongside the stricken boat, tied my tender boat up to the side of their boat, asked them to kill the engines, stripped off all my clothes and jumped into the water with a knife to cut the rope”.

14 The plaintiff, having stripped down to his boxer shorts, dived into the water and cut the mooring rope which had become entangled.

15 When the plaintiff returned to the wharf in the tender boat, he was told by Mr Southcombe to hurry up and complete the anti-fouling of the boat on the slip.

16 The plaintiff gave evidence that he went to a shed where he knew the acid was stored, he looked for a drum which he had seen John Webb use previously, that he poured some of the acid out of the drum into a container, that he took the container, a bucket and a broom to the boat, dipped the broom into the acid and started scrubbing the hull of the boat.

17 The plaintiff gave evidence that he was not wearing any protective clothing, and in particular any goggles, and, because he had stripped off most of his clothes in order to free the mooring rope, was wearing only his boxer shorts.

18 In acid washing the boat the plaintiff used a scrubbing motion with strokes about a foot long, using a broom which had stiff bristles. It was necessary to use a considerable degree of force. The waterline of the boat was about three or four feet above the plaintiff’s head.

19 While the plaintiff was acid washing the boat, Mr Southcombe was in his office and, according to the plaintiff, the plaintiff was not within Mr Southcombe’s line of sight.

20 The plaintiff gave the following description of the accident itself:-

“I pulled the broom down towards me on one of the strokes and the stiff bristles broke away from the concave (surface) of the boat and showered me with acid”.

21 The plaintiff’s eyes and some of the top parts of the plaintiff’s body were showered with acid. The plaintiff said that “my eyes clammed shut immediately” and he felt a lot of pain. He was unable to open his eyes. He did not want to move, because he had no shoes on his feet and he knew that there was a bucket of acid close to him.

22 The plaintiff called for help and Mr Southcombe came. A bucket of water was brought and the plaintiff dunked his head in the bucket of water. A minute to a minute and a half had elapsed since the spraying of the acid. The plaintiff denied that a hose had been used to wash out his eyes.

23 Drops were put in the plaintiff’s eyes and Mr Southcombe produced an old pair of goggles. He told the plaintiff to put on the goggles and go back to work. The plaintiff denied that Mr Southcombe had suggested that the plaintiff take the rest of the day off and that he had declined Mr Southcombe’s suggestion.

24 The plaintiff did not complete the anti-fouling of the boat. However, operating the tender boat, he towed a boat to Rose Bay and brought back a boat from Rose Bay to the Marina.

25 When the plaintiff went home that evening, he happened to meet a neighbour who was a doctor. The plaintiff gave evidence:- “The doctor said ‘what the hell happened to my (the plaintiff’s) eyes?’ I told him I received acid in my eyes at work and he said ‘Have you seen any type of medical doctor or person?’ I told him ‘No’. He directed me to go straight inside and wash my eyes out and go straight to the hospital”

26 The plaintiff and his partner walked to the emergency department of the Prince of Wales Hospital, where the plaintiff’s eyes were irrigated.

27 The plaintiff was off work for a few days. By the fourth day after the accident his vision was “fine” but he experienced pain in his eyes.

28 On 7 March 2000 the plaintiff’s employment was terminated by his employer, the reason given being lack of work.

29 The plaintiff made a claim for workers compensation because of the accident and also made a claim for unfair dismissal.

30 Of the evidence given by the plaintiff about events on 25 February 2000 which I have summarised, the parts which were disputed at the trial were all of the plaintiff’s evidence about the alleged episode of a boat becoming entangled in a mooring rope; the plaintiff’s evidence about some of the steps he said he had taken to prepare for the acid washing; the plaintiff’s evidence about what steps were taken, and how quickly, to irrigate his eyes after the accident; the plaintiff’s evidence about being ordered by Mr Southcombe to continue working after the accident; the plaintiff’s evidence about operating the tender boat to Rose Bay and back; and the plaintiff’s evidence about his alleged meeting with a neighbour who was a doctor.

Mr Southcombe’s Evidence

31 Mr Southcombe gave evidence at the trial that he had himself trained the plaintiff by showing the plaintiff the defendant’s work requirements and work procedures.

32 As to acid washing, Mr Southcombe gave the following evidence:-

“I told Tim that it was necessary to be mindful of not splashing himself with the acid wash, and told him that there were goggles that he should wear and there was also an apron available, and we had a number of disposable aprons available to the staff, and showed him the procedure to do the work, so that there would be minimal splashing of the acid”.

33 After giving the plaintiff these instructions, Mr Southcombe had seen the plaintiff acid wash a boat more than once.

34 When asked whether employees had in fact worn protective clothing when acid washing boats, Mr Southcombe answered:-

“Yes, mostly protective clothing was worn. Sometimes rain coats, and sometimes aprons, and that sort of thing. And sometimes goggles, and sometimes sunglasses”.

35 Mr Southcombe said that “periodically” he had said something to employees who he observed wearing sunglasses, while acid washing, but he could not recall if he had said anything to the plaintiff.

36 Mr Southcombe gave evidence that on 25 February 2000 he had told the plaintiff to carry out the acid washing of a boat on the slipway and to wear goggles and he said that he had reminded the plaintiff of the proper procedure and that he himself had obtained the acid for the acid washing.

37 While the plaintiff was acid washing the boat, Mr Southcombe had watched the plaintiff “indirectly,” by looking from his office at “the back of him doing the job”.

38 After the accident happened, Mr Southcombe had led the plaintiff to a tap and had washed water into the plaintiff’s eyes.

39 At the time of the accident the plaintiff had not been wearing any protective clothing and had been wearing only his work clothes.

40 After the accident Mr Southcombe had asked the plaintiff if he was all right and the plaintiff had replied that he was. Mr Southcombe had offered to take the plaintiff to a doctor but the plaintiff had said that it was not necessary.

Other Witnesses

41 Each of the witnesses John Webb, Bruce Schultz and Danny Southcombe gave some evidence relevant to some of the issues raised by the conflicting evidence of the plaintiff and Mr Southcombe.

The Plaintiff’s Statement of 28 March 2000 and the Plaintiff’s Credibility

42 I have already mentioned that the plaintiff, after his employment was terminated, made a claim for unfair dismissal. For the purposes of his unfair dismissal claim the plaintiff made a statement on 28 March 2000, that is just over a month after the accident. This statement was prepared with the assistance of a solicitor who was acting for the plaintiff in his unfair dismissal claim. The statement is an obviously carefully prepared document of six pages and thirty-nine paragraphs.

43 There are some inconsistencies between the statement of 28 March 2000 and the evidence given by the plaintiff at the trial five to six years afterwards.

44 In paragraph 6 of the statement the plaintiff said that he had not received any formal training in how to clean a boat, apart from watching John Webb perform the task. This part of the statement is in accordance with the evidence the plaintiff gave at the trial.

45 In paragraph 7 of the statement the plaintiff said that on 25 February 2000:-

I had watered down the boat prior and I off took (sic) my shirt, shoes and socks as they were wet from watering down the boat. I then commenced to wash the boat with hydrochloric acid”.

46 This part of the statement is inconsistent with the plaintiff having taken off his clothes in order to dive into the harbour to free a boat from a mooring rope. There is no mention in the statement of any incident involving a mooring rope or the plaintiff taking off his clothes so that he could dive into the harbour. If such an incident had happened, I would have expected it to have been included in the statement of 28 March 2000.

47 In paragraph 9 of the statement the plaintiff said that after the accident Mr Southcombe had come and was holding the plaintiff by the shoulders, only “about ten to fifteen seconds after the acid splashed on me”.

48 In his evidence at the trial the plaintiff said that a longer period had elapsed before Mr Southcombe came to his aid.

49 In paragraph 21 of the statement the plaintiff said:-

“When I got home, my father took one look at me and told me to go to the hospital immediately. I believe my father also spoke to a doctor, who was a neighbour, who advised I should go to the hospital immediately”.

50 This paragraph of the statement is inconsistent with the account given by the plaintiff in his evidence at the trial that the plaintiff himself had had a conversation with the doctor, particulars of which were given in the plaintiff’s evidence.

51 Where there are inconsistencies between the plaintiff’s evidence and the plaintiff’s statement of 28 March 2000, I consider that I should prefer what the plaintiff said in the statement. I also consider that these inconsistencies show a tendency in the plaintiff in giving evidence at the trial to exaggerate and embellish what had really happened

Findings of Fact

52 I will now make some findings on disputed matters of fact.

53 I accept evidence by Mr Southcombe, supported by evidence from John Webb, that protective clothing and equipment, including a number of pairs of goggles, were kept at the Marina.

54 However, I am satisfied that on at least some previous occasions other employees who had carried out acid washing had not worn protective clothing and equipment. Mr Southcombe himself acknowledged in his evidence that on occasions employees had merely worn sunglasses. Mr Webb, a witness called by the defendant whose evidence tended to be favourable to the defendant, said that he had seen employees not using protective clothing. Mr Schultz gave evidence that he had acid washed boats “plenty of times” and that he had worn sunglasses and not protective goggles.

55 There were inconsistencies between Mr Schultz’s evidence and a statutory declaration and a statement made by him. However, I am satisfied that the statutory declaration, which was fairly brief, and the statement were drafted for Mr Schultz in the interests of the defendant, after these proceedings had been commenced or at least foreshadowed, and, as Mr Schultz said in his evidence about the statement, “a lot of it isn’t in my words”. I have decided that I should greater weight to Mr Schultz’s evidence than to the declaration and the statement.

56 I accept that the plaintiff had not acid washed a boat before 25 February 2000. Even if he had done the task before, he had done it only rarely and was quite inexperienced in the task. The acid washing of boats had been done mainly by John Webb, the foreman, who happened to be away from work on 25 February 2000 attending a funeral.

57 Mr Southcombe may at some time have given the plaintiff some general directions about the acid washing of boats but I am satisfied that he did not give the specific instructions which he asserted in his evidence he had given the plaintiff on 25 February 2000. If the plaintiff had been given specific instructions immediately before commencing the acid washing and knew, as he did, that Mr Southcombe was only a few metres away, I would not have expected the plaintiff to have disregarded those instructions to the extent of not wearing any goggles and not wearing any protective clothing. It is common ground that, when he was injured, the plaintiff was not wearing goggles and, even if he was not wearing only his shorts, he was not wearing any protective clothing. I accept that the plaintiff himself obtained the acid for the acid washing.

58 I am satisfied that the alleged incident concerning the mooring rope did not happen. It may have happened on some other day but it did not happen on 25 February 2000.

59 After the accident steps were taken to irrigate the plaintiff’s eyes more promptly than the plaintiff conceded in his evidence.

60 I do not accept that after the accident the plaintiff was brusquely told by Mr Southcombe to return to work. I accept that Mr Southcombe suggested to the plaintiff that he see a doctor and that the plaintiff rejected this suggestion. I do not accept that the plaintiff refrained from seeking to see a doctor, because, as he claimed, he was afraid that, if he did so, he would lose his job.

61 I am satisfied that the alleged conversation between the plaintiff and the neighbour who was a doctor did not happen.

Decision on Liability

62 The task the plaintiff was performing when he was injured was to acid wash a boat, that is to scrub the hull of a boat with a solution containing hydrochloric acid, which was 32 per cent acid. The plaintiff had to carry out the task, while his head was at a level some distance below the level of the waterline of the boat and the plaintiff, if he was to look at where he was cleaning the boat, would have to look upwards.

63 There was an obvious risk that in the carrying out of this task some of the acid solution being applied with the broom might splash or be flicked by bristles of the broom into the plaintiff’s eyes, causing injury to his eyes. This would be so, even if the plaintiff endeavoured to adopt a brushing action such that he was to one side of, and not directly under, the boat.

64 There was a reasonably practicable method of obviating this risk, by requiring the plaintiff to wear protective goggles over his eyes.

65 Sunglasses would not have been sufficient to avoid the risk. As explained by Mr Shultz, drops of acid could be sprayed between the top of the sunglasses and the operator’s forehead. The plaintiff was not wearing anything to protect his eyes, either protective goggles or sunglasses.

66 There was an obligation on the employer to take reasonable care to institute, maintain and enforce a safe system of work, by requiring employees doing acid washing to wear protective goggles. Protective goggles were in fact available at the Marina. Before 25 February 2000 there were occasions on which the defendant had not complied with this obligation and I find that the defendant did not comply with this obligation on 25 February 2000. I find that, if the plaintiff had been required to wear protective goggles, he would have done so and no acid would have entered his eyes and, accordingly, the defendant’s breach of its obligation as an employer caused the plaintiff’s injury.

67 I consider that I should find a verdict for the plaintiff.

68 I do not consider that I should find that there was any contributory negligence on the part of the plaintiff. The plaintiff was a young, inexperienced employee, who was performing a task for the first time or almost the first time and, I find, had been given little instruction in how to perform the task.

The Plaintiff’s Injuries

69 The plaintiff gave evidence that, at the time his employment was terminated, he suffered as a result of the accident from soreness and dryness in his eyes, which was aggravated by exposure to sunlight, glare, wind or salt spray. When in glaring light he would squint and squinting would cause headaches. In the year 2000 the plaintiff was referred by a general practitioner to a specialist ophthalmic surgeon Dr Hennessey, who prescribed eye drops for the plaintiff.

70 The plaintiff gave evidence at the trial that he has continued to suffer up to the present from dryness in his eyes, which is aggravated by exposure to glaring light, dust, wind, salt spray and air conditioning.

71 Since the accident the plaintiff has had a number of jobs, including working for a landscaper and operating an excavator but at the time of giving further evidence in May 2006 he had been unemployed for almost all of the previous twelve months.

72 Since the year 2000 the plaintiff has seen a general practitioner about once a year but has not seen an eye specialist for any treatment.

73 In his statement made on 28 March 2000 the plaintiff, his employment by the defendant having been terminated, said in paragraph 34 that he had liked his job and “wanted to continue”. In paragraph 35 he said:- “I suffer from headaches and it is hard for me to focus with my eyes. This is more so with my right eye than the left”. There is no other complaint in the statement about the condition of the plaintiff’s eyes.

74 Even allowing for the fact that the statement of 28 March 2000 was made in support of a claim for unfair dismissal, there is some tension between the parts of the plaintiff’s statement which restrict his symptoms to headaches and difficulty in focusing and the evidence the plaintiff gave at the trial.

75 The plaintiff has been examined by a number of eye specialists retained on behalf of the defendant.

76 On 23 May 2000 he was examined by Dr Peter Anderson ophthalmic surgeon, who in a report dated 25 May 2000 said:-

“I do not think that he has suffered any significant disability to his eyes from the injury. He has suffered no permanent loss of vision”.

77 On 9 June 2000 the plaintiff was examined by Dr Peter Duke ophthalmic surgeon, who in a report dated 21 June 2000 said:-

“Hydrochloric acid splash burns to the surface of both eyes in an industrial incident on 25.2.00 now some three months previous. The only evidence of residual damage is some fine punctate staining of the surface of the bulbar conjunctiva of each eye with Rose Bengal dye. The tear flow appears adequate but it is likely that both the quantity and quality of tear secretion is minimally impaired at this stage”.

78 On 18 August 2003 the plaintiff was examined by Dr Anderson, who in a report dated 21 August 2003 said:-

“The visual acuity was 6/5 in both eyes. Schirmer’s test was normal, which is a test for dryness of the eyes. There was a normal amount of tears. His corneas were clear. Under examination under a slit lamp there was no staining. In fact I could find no abnormality of his eyes at all. I feel he has suffered no disability of the cornea from the injury from the hydrochloric acid. He is fit for any work in the future. There is no permanent loss of vision from the injury”.

79 On 18 January 2005 the plaintiff was examined by Dr Duke, who in a report dated 25 January 2005 noted that the plaintiff “continues to have problems with some discomfort of the eyes in dusty, windy atmospheric conditions”. In the report Dr Duke said:-

“Ophthalmic Examination
Mr Timothy Hodge continues to have an excellent standard of both distance and near point vision being 6/5 in each eye as measured on the Snellen chart.
The ocular movements and ocular muscle balance are sound as are his fields of vision.
On slit lamp microscopy, the conjunctivae no longer stained with Rose-Bengal dye as in the previous examination. There being no evidence of ongoing punctate staining of the surface of the conjunctivae or corneae.
There was no adhesion evident in the conjunctival fornices. The tear film shows a normal rate of evaporation from the corneal surface with the blink reflex. The anterior chambers are of good depth.
On ophthalmoscopy, the media are clear and fundus examination is normal.
The intraocular pressure records normally in each eye on applanation thermometry”.

80 Also in the report of 25 January 2005 Dr Duke said:-

“Residual ocular symptoms of the nature of mild sensitivity to glare or on exposure to dusty atmospheric wind conditions remain. This may be a consequence of a change in the quality or quantity of tear production following upon the industrial incident of 25/02/00, such reduction is difficult to quantify and as indicated at the ophthalmic examination, appears normal”.

81 Neither Dr Anderson nor Dr Duke was required to attend for cross-examination at the trial.

82 The plaintiff was examined by Dr Michael Delaney ophthalmic surgeon on behalf of the plaintiff on 17 November 2003. In his report of 21 November 2003 Dr Delaney said in part:-

“… he initially had an unstable tear film with superficial ulceration of the cornea and conjunctiva in association with some subconjunctival scarring. This scarring has now resolved but he has been left with a reduced tear film which although sufficient to prevent ulceration is reduced, compared to normal…”

83 In oral evidence at the trial Dr Delaney explained that human eyes require to be continually kept moist by a tear film secreted by the lachrymal gland. The tear film does not consist simply of water; it also has oil and mucus components, these components operating to wet the surface of the eyes.

84 In oral evidence at the trial Dr Delaney expressed the opinion:-

“I believe in Mr Hodge’s case that the mucus component has been damaged by the injury and, therefore, while he produces copious quantities of water, it runs off the surface of the eye without truly wetting it…”

85 In his evidence Dr Delaney said that the plaintiff’s condition was a “subjective” complaint, in that it is not readily verifiable by clinical means and “to a large extent we are dependent upon accepting the plaintiff’s complaints”. However, Dr Delaney considered the initial scarring to the plaintiff’s eyes which had been observed and the plaintiff’s complaints were consistent with Dr Delaney’s diagnosis.

86 In his evidence Dr Delaney sought to explain some of the findings and opinions of the ophthalmic surgeons retained for the defendant, on the basis that the plaintiff’s condition was variable from day to day.

87 I find that the plaintiff suffered initial scarring, which soon healed, and that his vision has not been impaired but that he has suffered a reduced tear film in that, although sufficient water is produced, not enough mucus is produced and the plaintiff is likely to suffer from sore eyes, when exposed to conditions such as glare, dust and air conditioning. I do, however, consider, on the basis of my general assessment of the plaintiff’s credibility and on his having worked for months at a time as a landscape gardener and as a bobcat operator and his habit of continuing to smoke up to a packet of cigarettes a day, notwithstanding that smoke from the cigarettes is likely to irritate any condition from which he is suffering, that he has, to some extent, exaggerated his symptoms.

88 Any injury to any part of the plaintiff’s body, apart from his eyes, from the spraying of the acid was minor and healed very quickly.

89 It was part of the plaintiff’s case at the trial that he had suffered psychological injuries as a result of the accident.

90 Since the accident the plaintiff has not sought any psychiatric or psychological treatment and he has not been seen by any psychiatrist retained by the plaintiff’s solicitors for medico-legal purposes. The plaintiff was, however, seen on 17 November 2003 and in January 2005 by Professor Kennett, a psychologist retained by the plaintiff’s solicitors. Two reports by Professor Kennett dated 6 January 2004 and 24 January 2005 were admitted into evidence at the trial. The two reports are very similar, except that the second report was expanded in a few respects.

91 In his reports Professor Kennett expressed the opinion that the plaintiff has suffered permanent psychological injuries as a result of the accident, including post-traumatic stress disorder. For a number of reasons I do not consider that I should accept this conclusion by Professor Kennett.

92 Professor Kennett based his conclusion on a combination of things said by the plaintiff in conversation at the consultations and the results of a personality assessment inventory administered by Professor Kennett to the plaintiff. At the trial Professor Kennett no longer had any notes of his conversations with the plaintiff and no longer had the written answers the plaintiff had made to the questions in the personality assessment inventory.

93 In his report Professor Kennett, somewhat confusingly, mixed quotations from the Diagnostic and Statistical Manual of Mental Disorders with notes of his observations about the plaintiff. In a section of his reports headed “Post-Traumatic Stress Disorder” Professor Kennett said:-

“Timothy re-experiences the traumatic event which includes recurrent and intrusive recollections of the event, recurrent distressing dreams, reliving event and experiences intense psychological distress”.

94 The part of the reports I have just quoted, which is in italics in the reports, is a quotation from the Diagnostic and Statistical Manual and sets out, I accept, what would be indicators of post-traumatic stress disorder.

95 However, when the plaintiff gave evidence at the trial he did not give any evidence of experiencing any of the matters referred to in the quotation. The plaintiff was not backward in giving evidence about what he claimed had been the adverse consequences for him of the accident and, if the plaintiff had re-experienced the traumatic event in any of the ways described in the quotation, I would have expected him to say so in his evidence.

96 In his reports Professor Kennett produced a long list of what he described as the plaintiff’s “current injuries”, including “impulsivity”, “aggression”, “little support from social relationships” and irritability”. It is conveyed in the reports that these personality traits in the plaintiff were caused by the accident.

97 It is apparent that Professor Kennett, unlike a psychiatrist Dr Gelb who saw the plaintiff on behalf of the defendant’s solicitors, took very little history from the plaintiff. Professor Kennett was unaware of most of a number of extraordinary happenings in the plaintiff’s life before the accident. Professor Kennett had been made aware that the plaintiff’s father had spent much of the plaintiff’s childhood in gaol and that the plaintiff had been on a witness protection programme. However, Professor Kennett was unaware that the plaintiff, while a schoolboy, had been a witness to the shooting of two teachers and a pupil by another pupil; that the plaintiff had been placed on the witness protection programme, because he had provided information in an investigation into a murder; that the plaintiff had attempted, unsuccessfully, to revive a man who had hanged himself; and that the plaintiff himself had been charged with attempted murder, although the charge had subsequently been reduced to a lesser charge.

98 In his evidence Professor Kennett accepted that these matters, of which he had been unaware when forming his opinions could affect his opinions, although he sought to distinguish the plaintiff’s accident on the basis that it related to the plaintiff’s physical integrity and had caused changes in the plaintiff’s lifestyle.

99 Professor Kennett, of course, had not conducted any personality assessment of the plaintiff before the accident and could not know how the plaintiff rated, before the accident, on such matters as impulsivity, aggression and irritability, which he noted in his report as “injuries” caused by the accident.

100 Professor Kennett relied in part on what the plaintiff told him. Some of the history recorded in Professor Kennett’s reports is not supported by the evidence given at the trial. For example, Professor Kennett recorded in his reports that the plaintiff had been “captain of the Australian Under 21 years touch football (team)”. The plaintiff did not make this assertion in giving evidence at the trial and, according to the evidence given at the trial, this assertion would have been a gross overstatement of the level at which the plaintiff had played touch football.

101 The plaintiff was seen by Dr Barold, a medical practitioner who specialises in occupational medicine, to whom the plaintiff was referred by the plaintiff’s solicitors for medico-legal purposes. Dr Barold gave a report dated 24 January 2005, which was admitted into evidence, and he also gave oral evidence at the trial.

102 In his report Dr Barold noted among the plaintiff’s complaints a complaint of personality change, with increased irritability and volatility of temperament occurring with aggravation of his eye condition and of depression and anxiety associated with the plaintiff’s frustration at his physical restrictions. In the report Dr Barold expressed the opinion that “separate to his physical injuries he has also developed symptoms of a reactive depression with a possible adjustment disorder”. Dr Barold added:-

“ I would therefore recommend that he undertake full psychiatric assessment by consultants specialising in this area due to this condition being outside my particular sphere of expertise”.

103 Although at times in his oral evidence Dr Barold was disposed to claim that he was qualified to express psychiatric opinions, when asked:-

“Do you feel qualified to conduct a psychiatric assessment?”

He replied

“In all honesty not to the degree that the Courts would require, no”.

104 I do not consider that I should give weight to opinions on psychiatric matters expressed by Dr Barold.

105 Dr Gelb, a psychiatrist, examined the plaintiff on behalf of the defendant for medico-legal purposes on 28 June 2004. In his report of 21 July 2004 Dr Gelb concluded:-

“Mr Hodge was injured on 25 February 2000 whilst cleaning a boat with a hydrochloric acid solution which splashed into his eyes. There were conflicting expert opinions as to the impact of this injury on his visual functioning but on balance, it appears that the experts agree that he does not produce sufficient tears and is susceptible to dry eyes in any environment which exacerbates dryness. There is certainly evidence that Mr Hodge is sad and frustrated that he has had to give up professional fishing and his sport and recreational activities although he appears quite happy with his current landscaping job.
It is likely that Mr Hodge suffered from an initial Adjustment Disorder with mild Anxiety and Depressive symptoms but this has now resolved and I am unable to diagnose any formal psychiatric disorder at present. As I have said above, he continues to suffer from frustration and anger regarding his situation, but there is no evidence that he requires ongoing counselling or psychiatric treatment or that such would be helpful”.

106 I consider that I should accept these conclusions of Dr Gelb.

Assessment of Damages

107 As stated earlier in this judgment, the assessment of damages is governed by the Workers Compensation Act 1987, as in force at the relevant time, and, in particular, Div 3 of Pt 5 of the Act.

108 Parts of s 151G of the Act, with the amounts of money adjusted by indexation, provided:-

………..


(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

(3) The maximum amount which may be awarded for non-economic loss is $240,350, but the maximum amount may be awarded only in the most extreme case.

(4) If the amount of non-economic loss is assessed to be $42,450 or less, no damages for non-economic loss are to be awarded.

(5) If the amount of non-economic loss is assessed to be between $42,450 and $56,550, the amount of damages to be awarded for non-economic loss is as follows:

Damages = [Amount so assessed - $36,000] x 4”

109 Section 151H, with the amount of money in subs (2A) adjusted by indexation, provided as follows:-

(1) No damages are to be awarded for economic loss unless the injured worker has received a serious injury or dies as a result of the injury.
…….
(2A) A serious injury is, if received on or after the commencement of Schedule 2 (2) to the Workers Compensation (Benefits) Amendment Act 1991:
(a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66 (1), or
(b) an injury for which damages for non-economic loss of not less than $56,550 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66)

110 Earlier in this judgment I made findings about the injuries, physical and psychological, the plaintiff suffered as a result of the accident. I also take into account the plaintiff’s pain and suffering and the loss of amenities and enjoyment of life the plaintiff has suffered as a result of the accident.

111 In my opinion, the plaintiff’s non-economic loss should be assessed at 20 per cent, and no more, of “a most extreme case”.

112 As to damages for non-economic loss, a consequence of my finding about the level of non-economic loss is that the amount of the plaintiff’s non-economic loss passes the threshold in s 151G(4) but will have to be adjusted pursuant to s 151G(5).

113 As to damages for economic loss, the consequence of my finding about the level of non-economic loss is that the plaintiff did not receive “a serious injury” within the meaning of that expression in s 151H and no damages are to be awarded for economic loss.

114 As to the plaintiff’s claims for past and future out of pocket expenses, I accept the claims made in counsel for the plaintiff’s written submissions for the cost of glasses and the cost of eye drops. I consider that the plaintiff’s claim for consultations with medical practitioners should be limited to the cost of six monthly consultations with a general practitioner.

Further Consideration

115 I am conscious that the present judgment leaves outstanding some items in the assessment and quantification of damages. It was contemplated at the hearing that some items of damages would not be dealt with or would not be dealt with finally in the present judgment. It may be necessary for me to give a supplementary judgment, if these matters cannot be settled by agreement between the parties.

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