Hodges v Coles Group Ltd

[2009] NSWDC 189

CITATION:	Hodges v Coles Group Ltd [2009] NSWDC 189
HEARING DATE(S):	27/5/09 - 30/5/09
JUDGMENT DATE:	4 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Verdict for the plaintiff in the sum of $$416,715.84 and judgement accordingly.
CATCHWORDS:	TORTS - work injury - negligence - non-employer liability - contribution between tortfeasors - contributory negligence
LEGISLATION CITED:	Workers Compensation Act 1987. Civil Liability Act 2002
CASES CITED:	Andor Transport Pty Ltd v Brambles Limited (2004) HCA 28 Harrison v Lau Nominees Pty Ltd (2004) NSWCA 18 Procrane Pty Ltd v Knobbs (1996) NSWCA unreported 407777 of 93 Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) NSWCA 99
PARTIES:	Shaun Reginald Hodges Coles Group Limited
FILE NUMBER(S):	21/08 - Lismore Registry
COUNSEL:	Mr H Halligan for Plaintiff Mr J Stewart for Defendant
SOLICITORS:	Beilby Poulden Costello McCulloch and Buggy

1. LIABILITY:- In this matter there will be verdict for the plaintiff.

2. Mr Hodges was the driver of a B double prime mover and trailers that made regular deliveries between a Coles distribution centre in Queensland and the Ocean Shores Bi-Lo, a Coles store at Brunswick Heads. Mr Hodges would pick up the pre-loaded trailers from the distribution centre in his prime mover and tow them to Brunswick Heads where the whole of the load of both trailers would be unloaded at a loading dock. The product involved was groceries of different kinds.

3. Boxes of product were stacked on caged trolleys at the Queensland distribution centre and were then loaded onto the trailers and the trailer would be sealed with a number. At the delivery end, the trolleys would be rolled out of the trailer onto a pneumatic scissor lift which then descended to ground level where the trolleys would then be rolled into the store.

4. The trolleys had four wheels, two fixed red wheels and two rotating green wheels. The trolleys can be seen in the photographic exhibits attached to the plaintiff’s expert’s report. The trolleys had two caged sides and a fold down shelf across the middle of the trailer which, when locked down, provided a substantial increased degree of stability to the caged sides. If the centre shelf was not used, as was the case with the trolley in question, there is, I find, a substantial reduction in the rigidity of the trolley and the load. The load on the trolley in question consisted of packaged soft drinks and weighed between 400 and 500 kilograms.

5. The procedure to unload the trailer was for the driver to back the trailer up to the loading dock guided by a storeman from Coles. In most cases, this was a person called Gary Cheek who was also required to assist the driver in the unloading process. Once the trailer’s rear opening was in position, the scissor lift would be raised level with the trailer’s floor. There was a pneumatically operated flap on the leading edge of the scissor lift that could be raised and lowered and provided a bridging ramp between the scissor lift platform and the floor of the trailer. It can best be seen in photograph 3 at p 117 of exhibit A. As is apparent in photograph 1 and photograph 3 on p 110 and Mr Healey’s report, the flap was not completely level with the ground, rising from zero millimetres to some forty millimetres off the ground looking at the ramp from left to right. The surface of this ramp and the scissor lift platform was made of what’s called chequer plate steel.

6. A system for unloading the trolleys had been devised whereby two persons would move the trolley to the lip of the flap, red fixed wheels to the front of the trolley, then turn the trolley to about an angle of forty-five degrees and walk the wheels up over the resistance of the lip of the flap by firstly, getting the right fixed wheel onto the flap and then the left wheel and then pushing the trolley onto the platform, fixed wheels first, although Mr Cheek suggested it could be done the other way using the rotating wheels first.

7. This was essentially a two man operation especially on the heavier trolleys which were usually at the rear of the trailer and of which, in this particular case, the trolley was a heavy trolley. The particular trolley was stacked to about Mr Hodges’ chest height with bottled drinks. The load was only secured by its own weight. Garry Cheek, who was supposed to assist Mr Hodges, had left at this time to attend to the delivery of some bread in a bread van, despite numerous signs to the effect that deliveries would only be effected from driver’s of vehicles in a receiving bay, there being only one receiving bay at this store.

8. Mr Hodges commenced to unload this trolley in the usual way. He got the right hand fixed wheel up onto the flap but then the two cross wheels that is, the left fixed wheel and the right rotating wheel caught on the lip, and the trolley and load began to topple forward. Mr Hodges said he heard voices in the vicinity and in the agony of the moment, because he was concerned as to safety issues of the load falling, he jumped onto the trolley and tried to trapeze it back into an upright position which he managed to do but unfortunately in the process he dislocated his right shoulder and sustained a serious injury.

9. That there was a duty of care owed by Coles to Mr Hodges is beyond any doubt but was that duty of care breached? If it was, there is no doubt that the injuries sustained by Mr Hodges were directly related to that breach. The obligation to take care for one’s neighbour is not absolute; it is simply to act reasonably in all the circumstances. However, the duty of care owed to Mr Hodges does not necessarily stop with Coles.

10. He was employed as a truck driver by Tellcum Pty Ltd who I will refer to as Tellcum. Tellcum hired Mr Hodges out to a company called Gavott Pty Ltd trading as Tronks Carrying Service that I will refer to as Tronks who in turn, were used by Linfox Australia Pty Ltd trading as Linfox Logistics with whom Coles had a contract to transport goods around Australia. Mr Hodges would be allocated a prime mover in Brisbane, and would then proceed to the Coles distribution centre and pick up a trailer or trailers of pre-loaded and sealed Coles goods namely, groceries. Tellcum, as Mr Hodges’ direct employer, had a non-delegable duty of care to ensure that Mr Hodges could carry out his work in a safe manner. This may have required Tellcum to adopt measures by way of training or warning in order to discharge this duty of care to Mr Hodges. Even in the situation where Coles and Linfox dictate methodology, Tellcum may still be required to develop and maintain a methodology or system which would ensure that Mr Hodges could carry out his work in a safe manner, (see Andor Transport Pty Ltd v Brambles Limited (2004) HCA 28 at 54).

11. However, the law does not provide that if an employer/employee relationship is in existence, the employer is automatically guilty of negligence caused by a third party to the employer’s employee. (Harrison v Lau Nominees Pty Ltd (2004) NSWCA 18 at 10). The question to be asked in each case is what it was the employer is supposed to have done or not done to reasonably avoid the risk of injury to an employee. Injury in the workplace does not mean that there has been a failure by an employer or a subcontractor to provide a safe system of work. (see Procrane Pty Ltd v Knobbs (1996) NSWCA unreported 407777 of 93, 15 November 1996).

12. It is necessary to consider the liability of the employer because Coles have pleaded s 151Z(2) of the Workers Compensation Act 1987. The responsibility for proving a liability on the part of Tellcum rests with Coles.

13. Apart from pleading the section in its defence, Coles does not and has not suggested in what way it says the employer Tellcum would or ought be liable. In submissions, Coles relied upon Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) NSWCA 99 saying that Tellcum should have been aware that the system was unsafe and if the court is satisfied as to Mr Hodges’ evidence of complaints being made, there should be a reduction of damages payable by Coles in the order of twenty to thirty per cent. Although Mr Hodges initially sued Tellcom, Tronks, Linfox and Coles, he discontinued against all parties except Coles.

14. I am satisfied complaints were made. The evidence in support of complaints comes from Mr Hodges and also, although less specifically, from Mr Cheek, a Coles former employee who was supposed to assist Mr Hodges or indeed, anyone else unload trailers at he loading dock. Mr Cheek, the defendant’s witness, conceded that he had had complaints about the trolleys from drivers generally but he could not remember the substance of those complaints. Whatever they were, he did not pass them onto anyone else. He was also of the view that the trolleys were unsafe with soft drink bottles stacked on them and without the middle shelf being down and locked in position.

15. I am satisfied that Mr Hodges complained about the trolley system to Mr Cheek. I am also satisfied that he complained to Tronks and that on a number of occasions, a complaint form was left in a box for such forms at the Coles distribution point in Queensland. Mr Hodges understood that such complaints would be passed on to Linfox and or Coles.

16. Both Mr Hodges and Mr Cheek gave evidence that prior to the caged trolley system being put in place, produce was delivered on shrink wrapped pallets and unloading using a pallet jack, a system that both Mr Hodges and Mr Cheek regarded as being a safer and more efficient method of unloading. That was the system still in place for deliveries that were made by Linfox to Woolworths, a company for which Mr Hodges was also required to deliver produce. Mr Cheek said that he preferred to deal with pallets because they were not unstable or on wheels. They were better stacked and shrink wrapped and they were easier to unload from trailer onto the scissor lift and then manhandle into the store with a pallet jack.

17. As is not unusual in many work related injury cases, the injury comes about not just from one factor but from a number of factors. In the present case, the significant factors were ones over which neither Mr Hodges nor his employer had any control. They were firstly, the failure of the personnel at the Coles distribution depot not to use the intermediate shelf for the particular trolley in question thus reducing the trolley’s rigidity, compounded by a heavy load of soft drink bottles.

18. Secondly, Mr Cheek absented himself at a time when both he and Mr Hodges were at the stage of unloading the heaviest of the caged trolleys, contrary to written instructions posted in the area.

19. Having regard to Mr Hodges’ and Mr Cheek’s evidence, I find it entirely probable that Mr Cheek went to assist a bread carter who had driven onto the grass adjacent to the loading dock and then started to unload his produce to be taken into the store. Mr Cheek acknowledged that drivers who were usually in a hurry to drop their goods and keep going could do that by driving onto the grassed area beside the unloading dock and unload their produce there if they did not need to use a pallet jack or the scissor lift.

20. It was clearly necessary for two men to unload the heavier trolleys. The principle reason for that was the necessity to get the trolley wheels up over the ridge created by the flap on the scissor lift and the floor of the trailer. In the particular instance of the Coles store at Ocean Shores, it appears that this lip was also not quite level, as I have already indicated. The driver Mr Hodges was unaware of the contents of any particular trailer or how the many cages might have been loaded with or without the use of the medial shelf. It also appears from Mr Healey’s expert report that if the trolley wheels had been made with a larger diameter wheel there would have been less likelihood of them being stopped by a small obstruction and they would require less effort to overcome such an obstruction.

21. I would have thought the stacking a high load of heavy objects onto a moveable trolley where the load was unsecured on two sides was inherently an unsafe and unstable method of loading or unloading, especially where the load was significantly higher than it was wide or long.

22. Coles suggests that the accident was caused by Mr Hodges trying to manoeuvre the trolley by himself that is, without waiting for the return of Mr Cheek. Mr Hodges’ evidence was that the unloading of the trailer had reached the heavier trolleys at the rear of the trailer when Mr Cheek became aware of another truck that had arrived to deliver produce. Mr Cheek said to Mr Hodges, “Will you be all right, I’ll be back in a minute”, and then left and went out of sight. Mr Hodges noticed another truck parked on the grass beside the loading dock.

23. I presume the submission made by the defendant is that Mr Hodges should have waited until Mr Cheek returned even though Mr Cheek was not supposed to have allowed another delivery to occur at the same time as an existing delivery. It is difficult it seems to me to blame Mr Hodges for continuing to unload his trailer in those circumstances of some degree of urgency and hurry. No doubt he would have been criticised for standing around and waiting. His delivery consisted of two trailer loads of produce. The procedure was to unhitch one trailer at a nearby location and take the other to be unloaded at the loading dock and when that was done, to return and pick up the second trailer and then unload it at the loading dock, a relatively lengthy and time consuming operation. In those circumstances, it is difficult to see that Mr Hodges’ actions in continuing to unload the trailer constituted material contributory negligence on his part.

24. In the present case, it is unlikely that the accident would have happened if Mr Cheek had remained at his post. Whilst there were problems associated with the wheeled trolleys by virtue both of not using the middle shelf and not having large enough wheels on the trolleys that had heavier loads, at least those problems were overcome by having two persons unloading the heavier trolleys. Of course it would have been preferable if the trolleys could be easily and safely handled by one person. The fact of Mr Cheek leaving his post was a casual act of negligence that could not have been detectable by any sort of inspection system used by the employer, Tellcum.

25. When looking at the employer’s negligence, again the duty of care is to act reasonably in all the circumstances. At best Tellcum, as Mr Hodges’ employer, owed him a non-delegable duty of care as was referred to in the case of Pollard at first instance. (see Pollard v Baulderstone Hornibrook at para (22)). Perhaps Tellcum should have instructed Mr Hodges that if he encountered site conditions that involved risk to him, he should notify Tellcum or Tronks. On such a basis in the case referred to, Hislop J thought that the employer was twenty per cent responsible and that percentage was not upset on appeal. However in the present case in fact Mr Hodges notified Tronks of problems with the trolleys as well as Linfox and Coles. It is difficult to see in those circumstances what more the employer should have done and nothing has been suggested as to that by Coles. Certainly, no evidence has been called by Coles that would establish anyone else but them as a tort-feasor.

26. The other issue in that regard is the nature of the complaints that were made. These cannot be known with certainty but according to Mr Hodges they were along the lines of complaints about the trolley system failing, being more difficult and awkward to manoeuvre than the pallet system that had previously been used and that at times, trolleys were poorly packed. Of course, complaints of such a general nature may not necessarily alert someone to a safety issue because, no doubt, with any system in operation there will be pluses and minuses.

27. I note that prior to undertaking the Coles work, Linfox conducted an induction course for drivers (see exhibit B). This consisted of a short “trailer coupling and an uncoupling” questionnaire, a distribution centre safety induction competency test of seven pages, a Tronks training education and competency record and a roller cage competency questionnaire. In all that material, the only relevant question on site safety was question 13 on a Coles Myer Logistics Pty Ltd/Linfox assessment which asked, “If you need to deliver to an area you identify as potentially dangerous or unsafe, what must you do, A, Look the other way, B, Get out of the vehicle and assess the ground, C, Pretend you never saw it”. Mr Hodges said that the induction took about half an hour of filling out forms and hearing about general safety issues and routines at Coles sites for loading and unloading.

28. In Pollard at para (61), McColl JA said, “A system that enabled the employee to report the risk to his employer and seek its assistance was a moderate requirement in the circumstances.”

29. As stated before, the Court of Appeal did not interfere with an allocation of twenty per cent negligence against the employer in that case. There is no evidence before me one way or the other as to the practical relationship between Tellcom and Tronks nor were any questions asked of Mr Hodges to that intent in cross-examination. Likewise, there was no attempt by defence counsel to elicit from Mr Hodges any information as to any instructions given or not given to him by his employer in regard to any issue as to safety in the workplace and while a court is entitled to draw inferences from facts, it cannot draw an inference in the absence of facts or if facts sought to be relied upon have not been established on the balance of probabilities, and that is the case here. Even if I was satisfied on the evidence of this particular incident that the employer was negligent, at most I would have allowed a ten per cent reduction.

30. As to contributory negligence it was suggested, as I said, that Mr Hodges’ actions in continuing to unload the trolleys without assistance was so outside the scope of his duties as to render the defendant not liable or alternatively, the plaintiff was responsible for thirty per cent of his own injury because he should have waited for Mr Cheek.

31. The Civil Liability Act s 5R provides that the standard of care required from an injured person is that of a reasonable person in that person’s position, having regard to what the person knew or ought to have known at the time. I cannot see that the plaintiff's actions in continuing the unloading procedure with a heavy trolley when Mr Cheek had departed to attend yet another delivery, amounted to a failure to take reasonable care for his own safety.

32. As Mr Cheek said, the soft drink trolleys needed two people to get them off the truck and that they were awkward but not necessarily unsafe to unload using just one person. I also accept both his and Mr Hodges’ evidence to the effect that it was expected that deliveries be undertaken as expeditiously as possible. The words, “I’ll be back in a minute” were hardly a literal statement to the effect that Mr Cheek would be away for sixty seconds. Mr Hodges had no way of knowing how long Mr Cheek would be away, ten minutes, twenty minutes, half an hour and so simply continued to carry out his duties. I cannot see that that amounts to negligence on his part in all the circumstances and certainly, the relatively catastrophic injury he sustained could not have been within his contemplation and I am not satisfied that the defendant has established any contributory negligence. I have no doubt that the plaintiff has established a duty of care and a breach of that duty against Coles resulting in injury to himself.

33. DAMAGES

34. Mr Hodges’ injuries were a traumatic dislocation of his right shoulder. He is naturally right handed although he writes with his left hand. He was in immediate pain and taken to a local medical centre by the safety officer where the dislocation was reduced and he was prescribed morphine and Panadeine Forte. Mr Hodges’s medical picture is not substantially in dispute. I accept he is no longer fit to drive semi trailers or his pre-injury occupation which also involved unloading, uncoupling trailers and pneumatic and electrical connections and winding down trailer legs after the trailer had been disconnected.

35. Mr Hodges came under the care of Dr Fairburn, an orthopaedic surgeon who eventually carried out an arthroscopy which re-attached his right superior labral detachment. He has had two significant periods of physiotherapy, has undergone some job retraining and been tried on light work, office work, which came to an end when his medical situation became static. He is currently employed fitting out aluminium fishing boats for a company called Formosa Marine. Some hour or so of filming of him in that occupation on 7, 10 and 11 November 2008 did not reveal, to my mind, any departure from the type of activity Mr Hodges said that he was able to engage in in that employment although I did note that he always carried his lunch box to and from work in his left hand.

36. In addition to Dr Fairburn’s reports there are reports from Advantage Injury Management Services, Dr Robinson, a medico-legal report, Dr Hadwan, Queensland Vocational Health Services, a psychologist, Mr Hodgson, a psychiatrist Dr Cantor who is a medico-legal specialist. The defendant has tendered medico-legal reports from Dr Burke, a surgeon, Dr Bodell, an orthopaedic surgeon and Dr Samuel, a psychiatrist. Dr Burke found Mr Hodges fit to drive a truck and fit for his pre-injury occupation although his is the only such finding in that regard. The doctors have not been called and I defer to the opinions of the orthopaedic surgeons whose views are not dissimilar.

37. Dr Bodell saw Mr Hodges on two occasions. His opinion on 1 July 2008 was that he noticed on examination that:- “He undresses without particular difficulty. He has a good range of neck flexion, extension and rotation in all directions and there is no asymmetry of movement or guarding. He has full shoulder abduction and rotation on the left hand side. On the right hand side there is 150 degrees of flexion, forty degrees of extension, thirty degrees of adduction, 140 degrees of abduction, sixty degrees on internal rotation and fifty degrees of external rotation. There is mild impingement in the right shoulder but the shoulder is stable. There is no lack of elbow, wrist or hand movement, there is no localised tenderness over the ulna nerve behind the medial epicondyle of the right elbow. There is no wasting of the small muscles in the hand and no objective evidence of sensory loss in the median ulna nerve distribution in the right upper limit.”

38. He was of the opinion that:- “This gentleman’s ability to work has been compromised by the work injury. He has undertaken a different style of work and is coping quite well with that on a full time basis. Any driving activities or strenuous stores work with pushing, pulling or lifting or use of the right arm overhead should be minimised. He does not require domestic assistance for household maintenance and cleaning activities. He would have required this type of assistance until about four months after the surgical stabilisation procedure.”

39. In a second report of 28 April 2009 Dr Bodell who is a well respected orthopaedic surgeon noted that:- “His clinical condition had remained fairly static since I last saw him. He now has no neck complaint but there is the same level of persisting pathology in the region of the right shoulder. He has returned to work in part time light electrical work in the marine industry. It would be difficult for him to return to his pre-injury truck driving activities particularly if there was loading and unloading involved. He must avoid strenuous pushing, pulling or lifting activities. With appropriate continued modification as to his work, he should be able to upgrade to full time permanent modified duties. Again, I do not anticipate the need for long term domestic assistance as a result of this injury. He should be able to engage in normal social and domestic activities and the permanently modified work activities.”

40. Dr Samuel, a psychiatrist advised on 20 January 2009 that:- “I suspect that for a brief period he was having some psychological difficulty adjusting to his circumstances. This is a process of adaptation and does not confirm that he was psychologically injured. At the time that I assessed him, he did not have any psychiatric or psychological disorder. He was working without any psychological impairment, He has no significant psychological symptoms. From a psychological perspective, he is full fit to work in any capacity to which he is suitably qualified. His psychological status does not impair his capacity to either pursue remunerative employment or domestic tasks. I note that my colleague Dr Cantor who is the psychiatrist for the plaintiff has may a psychiatric diagnosis and recommended quite intensive psychiatric treatment. I also note that Mr Hodges has not followed this advice.”

41. I will just comment on that. Mr Hodges has not followed that advice be he does not have the money to do so.

42. Dr Robinson, a hand and upper limb surgeon, concluded on 12 June 2007 that,
“The plaintiff was a truck driver who dislocated his right shoulder on 7 November 2005. He was initially treated with his arm in a sling and had a subsequent dislocation on 21 April 2006. He had an arthroscopic stabilisation of his shoulder and developed post-operative frozen shoulder and a chronic pain syndrome. He has been unable to upgrade to his normal occupational activities. I assess he has nine per cent impairment of whole person function. It is unlikely he would benefit from any further surgical procedure. He is at a slightly higher risk of aggravating degenerative changes within his acromioclavicular joint. He is independent with activities of daily living but is unable to return to truck driving as a consequence of his injury.”

42. In a further report of 10 November, Dr Rollinson noted that,

“His level of pain had reduced significantly and he was requiring less analgesia than he was taking when reviewed previously. His functional limitations with activities of daily living, recreational activities and occupational activities remain unchanged. He is able to drive a car, a forklift and could probably drive a truck however, he would experience difficulties climbing in and out of the truck with his current restrictions in range of motion and other aspects so truck driving including loading, unloading and securing loads are all beyond his functional capacity. He is restricted to manually handling any form of loads.”

43. He had decreased his whole person impairment to eight per cent. He concluded,
“I expect he can continue to work in this capacity until his elected age of retirement however with the current economic circumstances, his job security is under threat and the injury to his shoulder will limit the variety of occupations into which he can pursue considering he has been in the industry for eighteen years after leaving school and treatment has narrowed his future employment options.”

44. Mr Hodgson, a psychologist who saw him on four occasions at the end of that time in a report dated 11 September 2006 found that he was,
“Less depressed, less anxious, his family situation is improving and his attitude and expectations are more appropriate. He is learning to take more control of his pain and understands some of the principles of pain management. He has returned to part time duties for four hours a week and he informs me that this has been a good exercise in that he is enjoying the work and describes his pain mostly as a ‘niggle’ during this time. Overall he has made progress sand future progress will depend on how he himself assesses the progress of his injury.”

45. Dr Cantor provided a substantially more detailed report than Dr Samuel. He felt that,
“The plaintiff was suffering from a chronic adjustment disorder with depressed mood or a major depressive disorder with chronic pain disorder associated with psychological factors and shoulder injury.”

46. I do not propose to read out slabs of this report but Dr Cantor says at p 16,

“Mr Hodges is reliably working thirty-eight hours per week boat building however it is at the price of considerable dissatisfaction and frustration with this fuelling his depression and being likely to heighten pain perception from psychological factors as opposed to physical activity. On the balance of probabilities I anticipate that he will remain fit for either a satisfying occupation albeit with possible interruptions of employment or with more satisfying work if he can find it, most likely within the trucking industry”,

46. I might just interpolate there that Mr Hodges indicated in evidence that he quite enjoyed office work within the trucking industry but has been unable to find such work. Dr Cantor felt that the plaintiff would benefit from ongoing, to use a neutral expression, counselling and perhaps medication which he did not see as being permanent but for a period of time to enable him to deal with the mechanisms of pain that he was experiencing. As I said, whilst it is true that he has not undergone the treatment suggested by Dr Cantor, that appears to be because of lack of funds rather than lack of will.

47. Mr Hodges his wife also gave evidence and she supports her husband’s evidence as to his disabilities and mood swings. My impression was that Mr Hodges was a fairly undemonstrative person who really misses being in his preferred occupation as a truck driver and I am satisfied that he has ongoing disabilities in his shoulder that effectively preclude him from driving trucks and associated duties that that entails. He can work reasonably well in his current occupation and he has a liking and interest in boats. I accept that he has limitations in his right arm as described and that this causes frustrations in day-to-day living. I accept that he would require assistance around the house for heavier tasks and would need that for about one or two hours a month. It is also apparent that the shoulder has a tendency to re-dislocate and this has happened on two occasions since the initial injury. I accept that whilst the funding was available, Mr Hodges has done all that he could to improve his level of functioning and to retrain himself for a more sedentary occupation. He feels he could have continued in the office work he was assigned at Blacks Transport but that work finished with the compensation payments ceased. It involved some computer work, archiving, filing and office paperwork associated with the transport industry.

48. He has had other unrelated injuries but I am satisfied that they have not impacted on his working ability. His recreational interests of fishing have ceased and he has sold his boat for financial reasons and also because he was concerned that he would have difficulty getting back into the boat or ashore if he fell overboard. He continues, albeit slower with help on heavier tasks, to restore old cars.

49. Whilst physiotherapy has not brought any further improvement, he would like to do more presumably for the temporary relief that it brings. Some nights he has disturbed sleep patterns due to pain. His activities with his children are restricted and his youngest daughter who has epilepsy is more difficult to manage because of his right arm. I also accept that while Mr Hodges is not suffering from any disabling psychological condition, he has and would benefit from some form of therapy to assist him to deal with the fairly natural frustrations surrounding his serious disability at a relatively young age.

50. In my view, the plaintiff has sustained a significant injury with substantial disabling consequences for someone who is and will be basically manually oriented as far as work is concerned. Having regard to the submissions that have been made, I would regard Mr Hodges non-economic loss as representing thirty-three per cent of a most serious case. This entitles him to an award of $148,500. The past out of pocket expenses are agreed at $23,118.36 and a Fox v Wood component at $11,671. As to economic loss, the most reliable and direct estimate of Mr Hodges’ income as at the date of the accident is in my view the average of his pay slips which produces a net weekly income of $829.18. His current net weekly income with Formosa Marine less bonuses is $616.

51. He commenced employment at his current job where he remains employed in February 2007 and the relevant date that has been taken as being the commencing date is 7 February 2007. The difference in salary is therefore $213.18 per week. Until Christmas 2008, he received a bonus of up to $200 per month depending on whether or not staff took time off work for illness or otherwise. That bonus system finished due to the downturn in the economy. I accept that the plaintiff was incapacitated for work between the date of the accident and the date he commenced employment at Formosa, that is, a period of approximately sixty-five weeks. The period from 7 February 2007 to date is approximately 121 weeks. The period in which he earned bonuses was 7 February 2007 to 24 December 2008, a period of about ninety-eight weeks. I accept that the net value of the bonus of $200 per month is approximately $37.50 net per week therefore, his past economic loss is sixty-five weeks times $829.18 plus 120 weeks at $213.89 plus ninety-eight weeks at $37.50 which comes to a total of $83,366.48.

52. He is aged forty. His future economic loss can be calculated by reference to a period of twenty-five years less the normal discount for eventualities of fifteen per cent. There is no reason to suppose that he could not continue in his present or a like occupation although his prospects in the general labour market would be reduced by reason of his ongoing disabilities. Using the five per cent multiplier for twenty-five years, I calculate his future economic loss at 753.6 times $213.18 times eighty-five per cent which comes to a figure of $136,554 however, it is reasonable to expect that he would receive some form of bonus over that period depending upon eventualities and circumstances. A calculation based on a fifty per cent reduction would be 753.6 times 37.5 dollars times fifty per cent which comes to $14,130 which figure I deduct from $136,554 leaving a balance of $122,424. I allow eleven per cent superannuation on the past and future economic loss being respectively, $9,170 and $13,466 making a total of $22,636.

53. As to future assistance and future medical pharmaceutical and related expenses, it is impossible to calculate a precise figure. I have no doubt he will need assistance at least once a month to carry out harder tasks although presumably, that would diminish anyhow as he got older and less able in any event and would have to provide for such tasks out of his own income. I see it as not unreasonable for him to have some form of therapy in regard to psychological and pain management issues and that he will from time to time require pain reduction medication beyond that which may be regarded as normal in an individual. I allow the plaintiff the sum of $5,000 by way of a cushion payment in that regard.

54. Totalling those figures up, the plaintiff is therefore entitled to a verdict in the sum of $416,715.84 and there will be judgment accordingly. I order the defendant to pay the plaintiff’s costs. I give the parties liberty to put the matter back in the list if there are any mathematical calculations to be made that are incorrect.