Hofer v Brown
[2009] NSWDC 32
•12 March 2009
CITATION: Hofer v Brown [2009] NSWDC 32
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 23, 24, 25 July and 5 August 2008
JUDGMENT DATE:
12 March 2009JURISDICTION: District Court Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict for the Plaintiff in the sum of $1,497,846;
2. The Plaintiff’s contributory negligence is assessed in the apportionment agreed at 25 percent;
3. Judgment for the Plaintiff in the apportioned sum of $1,123,384.50;
4. Defendant to pay the Plaintiff’s costs.CATCHWORDS: DAMAGES – personal injury – Plaintiff sustained a closed head injury and fractured wrists in a motor vehicle collision – negligence admitted – agreed apportionment for contributory negligence – assessment of multiple heads of damage pursuant to Motor Accidents Compensation Act, 1999. LEGISLATION CITED: Motor Accidents Compensation Act, 1999
Uniform Civil Procedure Rules, 2005, Schedule 7, Clause 5(c)CASES CITED: Ghunaim v Bart [2004] NSWCA 28
Griffiths v Kerkemeyer [1997] HCA45; (1977) 139 CLR 161
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Morgan v Gibson [1997] NSWCA 212
Wynn v NSW Ministerial Corporation [1995] HCA53; (1995) 184 CLR 485PARTIES: Andrew Hofer (Plaintiff)
Godfrey Herbert Brown (Defendant)FILE NUMBER(S): 1627 of 2007 COUNSEL: Mr AJ Bartley SC with Mr E Romaniuk (Plaintiff)
Mr P Ryan (Defendant)SOLICITORS: Keddies (Plaintiff)
Curwoods Lawyers (Defendants)
JUDGMENT
Nature of case
1. The Plaintiff claims damages for personal injury arising from a motor vehicle collision that occurred on 12 February 2005. On that date the Plaintiff was the rider of a motorcycle that was involved in an intersection collision when the Defendant’s four-wheel drive vehicle turned across the path of the Plaintiff’s motorcycle as it entered the intersection.
Liability
2. At the outset of the hearing the Defendant conceded there had been a relevant breach of the duty of care owed to the Plaintiff. At the same time the Plaintiff conceded the issue of contributory negligence. The parties deferred announcing the terms of their agreed apportionment on the issue of the extent of the Plaintiff’s contributory negligence until there had been an assessment of damages. After the quantum of my assessment was announced the agreement as to the Plaintiff’s contributory negligence was subsequently disclosed to be 25 percent.
Issues to be determined
3. The principal issues to be determined in the case concerned the impact of the combination of the Plaintiff’s head and orthopaedic injuries on his earning capacity. Subsidiary issues arose concerning the Plaintiff’s need for care, treatment and other services.
Assessed heads of damage
4. A total of twelve claimed heads of damage required assessment. These are listed below together with paragraph references:
Head of Damage
Paragraphs (a) Non economic loss [113] - [117] (b) Past loss of earnings [118] - [125] (c) Loss of future earning capacity [126] - [137] (d) Past superannuation losses [138] (e) Future superannuation losses [139] (f) Past domestic assistance and attendant care [140] - [152] (g) Future domestic assistance and attendant care [153] - [160] (h) Future equipment requirements [161] - [162] (i) Future treatment [163] - [175] (j) Future pharmaceutical costs [176] - [178] (k) Gymnasium membership [179] - [180] (l) Past out-of-pocket expenses [181]
Witnesses and evidence
5. The following witnesses gave evidence in the Plaintiff’s case:
(a) The Plaintiff, Andrew Hofer, who was examined and cross-examined extensively and at length;
(b) Mrs Marie Hofer, the Plaintiff’s mother.
6. No witnesses were called to give evidence in the Defendant’s case. An array of documentary exhibits were tendered including a number of medical, paramedical and rehabilitation reports which incorporated conflicting opinions and which required analysis to enable a quantum assessment.
Facts
7. I set out a review of the relevant facts concerning the Plaintiff, his family situation, his education and work history, his pre-injury cognitive status and his living arrangements followed by a review of the events of the collision, his injuries, the subsequent treatment, his remaining disabilities and his attempts at mitigation of his damage.
The Plaintiff
Family background
8. The Plaintiff was born in Sydney in 1973. It is relevant to review the work history of the Plaintiff’s family. His mother, who was born in Australia, worked as an office administrator until her retirement several years ago. His father, who had come to Australia from Switzerland many years ago, had recently retired as a fitter and turner at the age of 60 as that work was quite strenuous. At the time of the trial he was looking for some other work to pursue after taking a temporary break from employment. The Plaintiff was aged 32 years when he was injured and he was aged 35 years at the hearing. There is no suggestion within the medical evidence that the Plaintiff has anything other than a normal life span. On the prospective life tables, at the age of 35 years the Plaintiff has a probable remaining life span of 50 years. He is the eldest of two siblings. His younger sister, a school teacher aged 30 years no longer lives at home since her marriage. The family live on a 5 acre property which requires regular work and maintenance. Before his injury the Plaintiff participated in the domestic and maintenance work on the family property.
Educational history
9. The Plaintiff received his primary education at Oakville and Vineyard Public Schools. He received his secondary education at Windsor High School. His formal education concluded with the completion of Year 10 at the end of 1989. The Plaintiff left school in 1990 part way through Year 11. His reason for leaving school was that he found the coursework too difficult and he preferred to obtain employment rather than to continue his schooling.
Pre-injury health
10. It is relevant to review the Plaintiff’s work history since he left school. Prior to his injury he enjoyed good health and physical fitness. It is apparent from the Plaintiff’s evidence concerning his pre-injury work chronology, which I accept, that prior to his injury he had no difficulty in seeking out and maintaining a wide range of employment requiring physical strength and dexterity. The Plaintiff had a flexible approach to the type of work he was prepared to undertake as is evident from his work history.
Pre-injury work history
11. Five months after leaving school the Plaintiff travelled to Switzerland where, for about a year, he was employed by Water Jet, a Swiss manufacturing company. In that employment the Plaintiff carried out labouring, cleaning and some process work associated with the sophisticated manufacture of various engineering and machine parts. He returned to Australia in late 1991.
12. Between 1992 and 1994 the Plaintiff worked for the Smith Family, a charity. His work was that of a storeman and then later as a forklift driver. He described his duties in that employment as comprising loading and unloading activities as well as the sorting of donated materials and goods. During that employment, in 1994, and at his own expense, he showed significant initiative in enhancing his range of work skills and his employability by obtaining a forklift driver’s licence.
13. In 1994 the Plaintiff took up an offer of work with City Rainwater Tanks. He maintained that employment until late 1997. In that position he was engaged in the fabrication of metal rainwater tanks. This involved heavy physical work picking up and manipulating heavy steel sheets and then shaping and hammering them into the finished product. He enjoyed the technical side of that work.
14. Concurrent with the position with City Rainwater Tanks, from mid 1997 the Plaintiff also maintained part time work with Scalzo Food Industries as a storeman and warehouseman. Initially that work occupied a half-day on Fridays and all day Saturday. His position with city Rainwater Tanks began to scale down and the Plaintiff found himself gaining increasing satisfaction in his work with Scalzo Food Industries. In this latter employment he was being paid more money and he was acquiring new skills. He then left City Rainwater Tanks and continued to work exclusively for Scalzo Food Industries for all of 1998 and for half of 1999.
15. In 1998 the Plaintiff again showed significant initiative by obtaining his heavy duty truck driver’s licence which undoubtedly enhanced his range of work skills and his overall employment prospects.
16. In 1999, at the age of 26 the Plaintiff decided to take a break from full time employment to travel around Australia for about 6 months, dividing his time between holidaying and some part-time work he acquired as he travelled. During that time he obtained seasonal work consisting of cane planting, lumping harvested bananas, picking melons, as well as performing some odd jobs including farm labouring.
17. Having seen and heard the Plaintiff’s evidence in this regard, my assessment of this aspect of the Plaintiff’s work history, in which he traded a regular and secure job for the short term opportunity of pursuing a working holiday, is that it demonstrates the Plaintiff’s high level of pre-injury self-confidence concerning his employability in the labour market. The Plaintiff impressed me as being a generally cautious person and I infer that his decision to take time out from regular employment to travel and at the same time seek intermittent seasonal work during his travels was buoyed by his self-confidence in his ability to find work within a wide range of employment possibilities.
18. In 1999 the Plaintiff cut short his working holiday and returned to Sydney to attend his sister’s wedding. In that year, following the example of a friend who, 6 months earlier had found employment with Railcorp, he made an application for employment with Railcorp. That particular application was unsuccessful but the Plaintiff followed this up with a further application just before his injury. In my view this indicated that the Plaintiff seriously considered the possibility of employment with Railcorp as a driver or train driver to be a desirable and secure avenue of work that was worth pursuing. The evidence however does not enable me to form a concluded view of the prospects of the Plaintiff securing such employment.
19. During 1999 the Plaintiff also obtained temporary work through various labour hire agencies. This work included truck driving and warehousing.
20. In 2000 the Plaintiff undertook a basic but non-vocational training course in the use of computers. Although this course equipped him with the skills required to use the internet his proficiency did not extend to acquiring confidence in using the word processing functions for tasks such as letter writing. He has not undertaken any further computer training since undertaking that initial course. I find that the Plaintiff’s training in the use of computers did not provide him with any computer skills that could be used vocationally.
21. In 2000 the Plaintiff obtained employment with a company named Tintorella which ultimately became CPS Colour Pty Ltd. That company was involved in the bulk processing, manufacture, warehousing and distribution of paint tints and paint products. He was employed by that company as a storeman and then later his duties included those of a machine operator. He also performed some limited clerical work concerning orders and stock control. According to one of the medical histories provided by the Plaintiff, the machine operator component of the work with CPS Colour Pty Ltd was physically demanding, repetitive, heavy and involved the unrestricted use of both of his arms. The Plaintiff maintained his position with CPS Colour Pty Ltd for 5 years from 2000 until his injury in 2005. At the time he was injured the Plaintiff was earning $544 per week net.
22. Independent of his employment with CPS Colour Pty Ltd, and in his own time, in 2000 the Plaintiff completed a TAFE course and obtained a licence to operate a Bobcat machine and excavator. The Plaintiff’s father had purchased this equipment for the family property and had paid for both his own and the Plaintiff’s training to obtain licences to operate these machines. Had the Plaintiff not been injured in the collision these additional skills, along with his forklift and truck driver’s licences would have undoubtedly enhanced his employment prospects in a variety of jobs on the open labour market.
23. I have summarized the detail of the Plaintiff’s pre-injury work history and his industrial licence qualifications as this history is relevant to the assessment of the claim for loss of earning capacity both past and present. From such history I conclude that before his injury the Plaintiff was a serious and responsible young man who had a strong work ethic. This is evidenced by his conservative approach to financial matters with the result that pre-injury, as a young man he used his earnings to acquire property whilst still being at home with his parents. I also infer from the Plaintiff’s post-injury mitigatory work attempts, which I will analyse separately when dealing with the effects of his injuries, that the Plaintiff has always maintained a strong work ethic. I also conclude that uninjured, the Plaintiff would have held down steady, continuous and unrestricted well-paid employment throughout his working life. I also conclude that the history of the Plaintiff’s changes of pre-injury employment have always been for the betterment of his remuneration and working conditions.
Plaintiff’s living arrangements and future plans
24. At the time of his injury, and subsequently, the Plaintiff has continued to reside with his parents on a 5 acre property at Oakville which is situated on the north-western outskirts of Sydney. The Plaintiff gave evidence, which I accept, that prior to the collision he had the ambition to acquire his own 5 acre property, similar to that of his parents. I find that his ownership of such a property was an ambition that was reasonably within his grasp. Although there was no evidence of the cost of acquiring such a property I infer from the fact of the Plaintiff’s earlier astute property acquisition and from his strong work ethic that uninjured he would have found the means by which to borrow funds to acquire such a property by the time of the trial. I find that the Plaintiff still has the ambition to acquire such a property and I find that after the trial he will do so to live independently of his parents.
Plaintiff’s pre-injury cognitive status and social functioning
25. In view of the fact that the Plaintiff suffered a head injury it is relevant to review his pre-injury cognitive status. This need arises because an issue for determination is whether the Plaintiff’s pre-injury cognitive functioning has been adversely affected by the injury and if so, in what way, particularly in regard to his earning capacity.
26. The Plaintiff left school part-way through Year 11 because he found the course requirements to be difficult. He recognised that he was disadvantaged in the areas of reading and mathematics but he had strengths in other areas. Test results show that the Plaintiff was of average global intelligence before his injury. He functioned normally in the family, work and social settings. I find that before his injury the Plaintiff’s cognitive status was no barrier to seeking out, gaining and maintaining well paid remunerative employment.
27. The Plaintiff’s mother Mrs Marie Hofer described how before his injury the Plaintiff appeared to enjoy his work and always put one hundred percent effort into the things he undertook. She described the Plaintiff’s pre-injury personality as always being very outgoing and happy. Before his injury the Plaintiff had a relationship with a girlfriend but this did not continue for long afterwards.
The collision
28. When the Plaintiff was examined at the scene of the collision the attending ambulance officer recorded that the Plaintiff was found sitting on the road without any recollection of the incident. The Plaintiff’s recollection of the road journey on the day of the collision is sketchy and relates to a point in time and place before the collision. It appears that his first post-injury recollection is of himself laying on a trolley in hospital being wheeled around hospital corridors. This was a significant period of post-traumatic amnesia.
29. The Plaintiff referred to his limited recollection of some events following the collision and candidly stated that he really could not distinguish between what he had been told of events and an actual memory for events. Some of the histories recorded by the various medical and allied experts who examined the Plaintiff since his injury make reference to some patchy recollections of events surrounding and following the collision but in view of the agreement on liability it is not necessary for me to analyse these statements.
30. The version of events recorded in the ambulance report that is filed within the hospital clinical notes suggests the collision was at high speed. From that report it appears that the Plaintiff’s motorcycle struck the passenger side of a four wheel drive vehicle that had made a right turn across his path. Although it is not necessary for me to conclusively determine this, the hearsay comment within the ambulance report suggests the Plaintiff’s speed was estimated at 70 to 80 kph.
31. Whilst the liability concessions made by the parties at the outset of the trial render it unnecessary to analyse the events of the collision in further detail, it is nevertheless relevant to the assessment of the Plaintiff’s injuries, particularly with regard to his head injury, to note that the limited information contained in the ambulance report and the nature of the Plaintiff’s physical injuries tends to suggest that the impact in the collision was quite severe.
Plaintiff’s injuries
32. According to the ambulance records, when the Plaintiff was examined at the scene of the collision he was noted to be conscious but confused and diaphoretic. He was noted to have been disoriented in time and place. It was noted that he was answering questions loudly. It appears that he was exhibiting repeated questioning behaviour which suggests he did not know what had happened to him. He was assessed as having a coma score of 14 on the 15 point Glasgow Coma Score scale.
33. It was apparent to those who had examined the Plaintiff shortly after the collision that he had suffered a head injury with lacerations and haemorrhage to the face, the nose and possibly to the left ear, the latter additional notation, coming from the hospital records. It was noted that the Plaintiff suffered contusions to the anterior chest and bilateral wrist fractures. A cervical collar was applied.
34. The Plaintiff was admitted to Westmead Hospital on 12 February 2005. There it was noted that he had sustained a closed head injury which was later described as a mild to moderate traumatic brain injury with resultant post-traumatic amnesia. The physical injuries of significance were noted to have comprised an open Colles fracture of the right wrist which was highly comminuted with an associated compound wound. In addition there was a closed comminuted extra-articular fracture of the left wrist. The Plaintiff also sustained musculo-ligamentous injuries to his neck, left shoulder and back as is apparent from the subsequent complaints of pain and discomfort he related concerning these areas.
35. All of the Plaintiff’s recorded injuries had the potential to leave him with lasting disabilities that could have adversely affected his earning capacity.
Course of initial treatment and rehabilitation
36. The Plaintiff remained as an inpatient at Westmead Hospital for 7 days from 12 February 2005 until 19 February 2005.
37. The Plaintiff stated that he did not remember much about his first few days in hospital. During that time he was sedated and he was connected to a self-administering morphine pump for pain relief and which would also have affected his awareness and level of consciousness. Again, he candidly acknowledged that his memories of his time in hospital could have been based on things he had been told rather than on actual memories of events. This seems to be consistent with the hospital assessment of post-traumatic amnesia.
38. The hospital records show that on 12 February 2005, Dr Frederick Hoe, the treating orthopaedic surgeon, debrided the open wound to the Plaintiff’s right wrist and at that time also performed bilateral open reductions and internal fixations to the fractures of both wrists with the insertion of metal plates. In the case of the right wrist a bone graft was taken from the left iliac crest from the Plaintiff’s pelvis and this was followed by wound lavage. The surgical wound to the left wrist was stapled. The surgical wound to the right wrist was left unstapled for delayed closure. The Plaintiff subsequently underwent further surgery to the right wrist on 17 February 2005 for wound debridement, washout and delayed closure. Back slabs were applied to the wrists for stability. The Plaintiff was treated with antibiotics for this delayed closure of his wound. The surgical staples were subsequently removed in the outpatient’s clinic. On 28 February 2005 the back slabs were removed from the left wrist. A plaster cast was then applied to the right wrist for a further four weeks until 13 April 2005 when it was removed after x-rays showed the fractures to be in a satisfactory position but with slight shortening of the radius bone by some 3 or 4 mm. The presence of a small residual avulsion fracture of a bony fragment of the right ulnar styloid was also noted on x-ray.
39. On 28 February 2005 physiotherapy treatment was recommended to the Plaintiff for strengthening of his upper limbs in preparation for a return to work. Initially the Plaintiff attended 11 weekly sessions with the physiotherapist, Mr Michael Ward. This initial treatment comprised mobilising and strengthening exercises of the left arm. Subsequently, on 13 April 2005 twice weekly physiotherapy sessions were commenced for similar treatment of the right arm. Mr Ward reported marked comparative differences in movement and grip strength in both upper limbs. The grip strength of the left hand was noted to be 46 kg whereas on the right it was noted to be 14 kg. This was a significant discrepancy for the Plaintiff who was a right hand dominant manual worker.
40. When reviewed by Dr Hoe on 25 May 2005 it was noted the Plaintiff continued to experience some aching especially in the right wrist. The Plaintiff reported that he occasionally woke from his sleep due to the pain. Stiffness of the right wrist was also noted to be present, particularly with rotation movements. Dr Hoe was of the opinion that whilst the Plaintiff had made good progress, significant weakness, lack of strength and limitation of motion of the right wrist nevertheless remained as continuing problems for him. In May 2005 Dr Hoe was of the opinion that the Plaintiff’s wrist condition had not stabilised and he foreshadowed permanent restriction and impairment of both wrists, particularly in the right wrist. Significantly, in May 2005 Dr Hoe also foreshadowed that the Plaintiff would encounter occupational difficulties.
Presentation of the Plaintiff and history given to medical examiners
41. The Plaintiff’s oral evidence concerning his post-injury problems was given in a very much understated and matter of fact manner, notably with a flat affect and an unembellished style. I accept his evidence in which he recounted his residual problems. He said in evidence that he had endeavoured to give a truthful account of his post-injury problems when he was medically examined at various times concerning his injuries and their aftermath. I also accept his evidence in that regard and accordingly I find that I can confidently rely upon the historical accounts of the residual effects of his injuries he has given to the various medical and allied health practitioners who have examined him and who have provided reports based on those examinations.
Medical assessment of the physical effects of the Plaintiff’s injuries
42. On 11 October 2005 the Plaintiff was examined by Dr John Davis, a consultant in occupational medicine. In considering the physical effects of the Plaintiff’s injuries Dr Davis expressed the view that by the time of his assessment in October 2005 the Plaintiff had achieved maximal medical recovery for assessment purposes. I accept the opinion of Dr Davis in this regard. Dr Davis went on to assess an aggregated whole person impairment of 16% according to the Motor Accident Authority Guidelines for assessment of disability. In my view that represents a significant assessment of impairment on those restrictive guidelines.
43. Dr Davis obtained a history from the Plaintiff of continuing pain in both wrists with associated reduction in the range of movement particularly on the right side. The Plaintiff reported aggravation of his upper limb symptoms when attempting to carry out work with his hands in awkward spaces. Dr Davis also noted a history of pain in the left shoulder when the Plaintiff worked with his hands above shoulder height. He identified that the Plaintiff was suffering from tendonitis in his left shoulder. He also noted other domestic activities such as bed making caused aggravation of wrist problems. Dr Davis tabulated differences in the range of movements between the Plaintiff’s left and right wrists. Dr Davis was of the opinion that the Plaintiff had been left with residual difficulties in both wrists resulting in an inability to use either wrist in a forceful manner or to undertake any heavy lifting, wringing or pulling such as when climbing ladders. He also noted the loss of supination movement of the hands which resulted in difficulty holding small objects in the hands, such as coins which tended to fall from his hands. This assessment reflected the Plaintiff’s own evidence concerning his weakened and reduced grip in his hands. In my view these descriptions that Dr Davis noted concerning the Plaintiff’s impairments represent considerable disabilities to a young man whose earning capacity is principally derived by his ability to dextrously use his hands, arms and shoulders without restrictions.
44. Dr Davis noted the presence of the raised irregular surgical scars on the Plaintiff’s wrists. He noted areas of both hypo-pigmentation and hyper-pigmentation with keloid scarring on the left wrist. I have viewed these scars and observed them to be relatively unsightly cosmetic defects. Photographs of the scarring to the Plaintiff’s left and right wrists and forearms as well as the scarring to his left hip comprised Exhibit “C”. I accept that these scars cause the Plaintiff to feel some awkwardness and embarrassment when they are exposed to view.
45. On 27 April 2006 the Plaintiff was examined by Dr Max Ellis, a consultant orthopaedic surgeon. Dr Ellis recorded the Plaintiff’s history of continuing tinnitus due to damage to the eighth cranial nerve with associated vestibular disturbance. He also recorded a history of continuing pain in both wrists with restriction of movement, more particularly to the right, the latter being made worse with more use of the hands and arms. The pain was reported to be aggravated by cold conditions and by heavy repetitive work activities such as shovelling, raking, mowing and vibration from operating machines. Dr Ellis also recorded the complaint of left shoulder pain when the Plaintiff’s arm was elevated. Dr Ellis identified this to be traumatic capsulitis of the left shoulder. It appears that this is the same condition that Dr Davis described as tendonitis. A history of thoracic and lumbar back pain was also recorded, aggravated by bending and lifting activities. Dr Ellis noted that at the time of his assessment the Plaintiff’s neck and right shoulder were also affected. In my view these disabilities noted by Dr Ellis are also of great significance to someone whose work principally involves manual labour.
46. Dr Ellis undertook dynamometer grip strength measurements which revealed 30 kg and 50 kg capacities comparing the right and left hands respectively. This represented some improvement on the results obtained by Mr Ward in April 2005 but it was nevertheless evident from such test results that there was still a significant discrepancy in the strength of grip in the Plaintiff’s right dominant hand.
47. In April 2006 Dr Ellis assessed the Plaintiff as having reached the stage of medical improvement which I take to mean that maximal recovery had been achieved. Dr Davis had already noted that this stage had been reached by October 2005.
48. On 27 April 2007 Dr Ellis issued a supplementary report in which he essentially reiterated his earlier conclusions and expressed the additional opinion that it was likely that the Plaintiff would experience the onset of degenerative arthritis in his wrists. Whilst Dr Ellis did not provide any indication as to when degenerative arthritis would be likely to become manifest, it is apparent from the nature of the condition that when it does occur it will more probably than not operate as a further detriment to the Plaintiff’s ability to exercise an earning capacity by using his hands, noting that he is already unfit for physically demanding work requiring, amongst other things, repetitive forceful use of his arms.
49. On 20 February 2006 the Plaintiff underwent functional and vocational assessments that were carried out by Ms Lyn Gosling, an occupational physiotherapist and by Ms Val Sutton, a psychologist.
50. Ms Gosling’s examination was aimed at ascertaining any restrictions in the movement of the Plaintiff’s various muscle groups. She noted the Plaintiff fully co-operated with the requirements of her examination. She recorded limitations in movement in the Plaintiff’s neck, trunk, left shoulder, left elbow and in both wrists. She also noted the Plaintiff to have below normal grip strength in both wrists, the right dominant wrist being weaker than the left. She also noted reduced sitting tolerance limited to less than 30 minutes and reduced standing tolerance of approximately15 minutes, in each case this being due to increasing onset of low back pain. At her examination of the Plaintiff she found that he complained of aggravation of neck and upper thoracic symptoms associated with sustained forward bending and repeated trunk rotations. In my view these are further significant restrictions that adversely impact upon the Plaintiff’s ability to perform and sustain not only manual work but also sedentary work.
51. Ms Gosling concluded that her assessment revealed the Plaintiff to be quite disabled. She noted his memory and concentration difficulties and concluded that it would be difficult to determine suitable work for the Plaintiff.
52. Ms Sutton’s vocational assessment from the perspective of a psychologist revealed the Plaintiff to be complaining of poor memory, difficulty completing tasks and being easily distracted, concerns over his mental efficiency due to memory defects, being anxious and irritable and having low self-esteem. She also noted the physical complaints of pain in both wrists especially after significant physical work.
53. Ms Sutton observed that the Plaintiff’s injuries have caused him to suffer significant set backs such that the combination of his physical and cognitive problems make it less likely for him to attain his vocational goals unlike the position that pertained prior to the injury.
54. It is noteworthy that the Defendant’s occupational physician who saw the Plaintiff on 28 March 2006 acknowledged that the Plaintiff had a “dinner fork” deformity of his right wrist with permanent restrictions in movement which have resulted in an inability to resume pre-injury employment and permanent impairment in the Plaintiff’s earning capacity.
Medical assessment of the cognitive effects of the Plaintiff’s injuries
55. In addition to the physical effects of the Plaintiff’s orthopaedic and musculo-ligamentous injuries the Plaintiff also suffered significant cognitive problems as a consequence of his head injury. Whilst he was an in-patient in hospital the Plaintiff was assessed by the Brain Injury Unit. Neuropsychological assessment tests carried out in hospital as arranged by the specialists managing the effects of the Plaintiff’s brain injury suggested he had sustained a cognitive change as a result of the collision.
56. On initial testing the effects of the brain injury were assessed as showing no overall decrement to the Plaintiff’s pre-morbid level of intelligence. However, a decrement was noted to his pre-existing borderline attention and concentration functions as well as to the speed of his responses in comparison to his average to high average non-verbal thinking and visual motor co-ordination functions. The results of testing showed the presence of abnormal scatter in the results for non-verbal thinking and visual motor co-ordination tasks. The opinion of the treating consultant in rehabilitation medicine at the Brain Injury Unit was that the Plaintiff exhibited brain dysfunction as was evidenced by lowered response speed in his intellectual performance.
57. On the Plaintiff’s discharge from hospital the rehabilitation consultant overseeing the management of the Plaintiff’s brain injury noted that the Plaintiff was affected by distraction and fatigue when performing complex tasks. It was suggested that any such tasks be scheduled for early in the day with reduction in distractions such as background noise. It was suggested that instructions to the Plaintiff should be worded simply and it was suggested that realistic time frames be set for him to complete tasks of a complex nature. This is not suggestive of employability on the open labour market. This also connotes a significant degree of brain impairment concerning the Plaintiff’s executive functioning. Further, in my view it also represents a significant barrier to future employment.
58. On 29 July 2005 the Plaintiff underwent further neuropsychological assessment testing at the Mild Traumatic Brain Injury Clinic at Westmead Hospital. At that time the Plaintiff reported a number of post-concussive symptoms including headaches, difficulty concentrating, fatigue, anxiety and memory problems. The Plaintiff reported that he became frustrated more easily when things were not going well for him, he became more easily angered and he stated that he preferred his own company. He reported losing interest in completing tasks that required increased concentration. He also reported experiencing problems with his short term memory. In addition, elsewhere the Plaintiff had reported experiencing dizziness.
59. The Plaintiff was assessed to be of average global intellectual functioning. Testing showed that a comparison between the predictive and assessed intellectual functioning did not reveal any decrement. Whilst there were no abnormalities within the Plaintiff’s verbal abilities, the results of testing nevertheless revealed that abnormalities were present within his non-verbal visuomotor abilities. Concentration and attention were assessed to be borderline. Auditory attention span was assessed to be extremely low and his visual attention span was assessed to be very poor. The Plaintiff was assessed to have sustained a mild to moderate traumatic brain injury.
60. On 26 May 2006 the Plaintiff was examined by Mr Peter Rawling for the purpose of clinical neuropsychological testing and evaluation. Mr Rawling noted the evolution of the Plaintiff’s complaints of frequent headaches, episodes of dizziness and problems with memory and concentration in the months following the injury. He also noted the complaints of difficulty focussing on tasks for long periods. After the administration of various tests Mr Rawling concluded that the Plaintiff’s impaired information processing speed and the effects on verbal and visual memory functions was consistent with cognitive impairment due to a traumatic brain injury. Mr Rawling considered there may be some scope for improvement and recommended re-testing some time after May 2007. Those tests were followed up by a re-examination by Mr Rawling that took place on 7 May 2007.
61. On re-examination on 7 May 2007 Mr Rawling noted the Plaintiff was still having problems with his working memory and with sustaining concentration and had given up his leisure reading. Whilst Mr Rawling assessed the Plaintiff’s mental status impairment at the lower end of the nominated range this nevertheless remains as a significant disability affecting everyday life.
62. The Plaintiff has also been examined by a number of specialist practitioners on behalf of the Defendant.
63. On 18 January 2006 at the examination of the Plaintiff Dr Michael Lim, a consultant occupational physician. Dr Lim confirmed that the Plaintiff’s injuries were due to the collision and confirmed that these injuries have resulted in impairments in the Plaintiff’s past earning capacity and have caused permanent impairment in the Plaintiff’s future earning capacity. In commenting upon and taking issue with the report of Dr Davis, Dr Lim stated that he found no evidence of a residual cognitive deficit in the Plaintiff. I prefer the cognitive functioning assessments and opinions of Dr Rawling to the opinion of Dr Lim in this regard because it appears that Dr Lim has expressed an intuitively based opinion that is not explained with reasons and supporting examples.
64. I also prefer the analysis prepared by Dr Davis in preference to that of Dr Lim for a number of reasons. First, it appears that Dr Lim restricted his analysis of the Plaintiff’s problems to complaints of a physical nature and did not record any history concerning the Plaintiff’s complaints of memory and concentration problems. Secondly, Dr Lim’s assessments seem to be predicated upon the Motor Accident Authority guidelines for the assessment of permanent disabilities which, whilst they are relevant to determining whether the Plaintiff’s circumstances satisfy the statutory threshold for an award of damages, these considerations are not relevant to an assessment of damages to be assessed according to common law principles.
65. In his report dated 18 January 2006 Dr Lim put forward a number of classifications of occupations he thought were appropriate for the Plaintiff to pursue in lieu of his pre-injury employment which he acknowledges to be now unsuitable as a result of the Plaintiff’s disabilities. I do not accept Dr Lim’s opinions concerning the appropriateness of the work classifications he has nominated. I have come to that view because on the face of such recommendations it appears that Dr Lim paid no regard to the Plaintiff’s post-injury cognitive problems and the nominated classifications appear to me to have a cognitive component within them and, secondly, all the nominated classifications appear to involve sustained and repeated use of the hands including grip and strength, especially the driving positions that Dr Lim has nominated.
66. Dr Lim took issue with a number of matters of detail relating to matters of assessment of damages. Where it is relevant to do so I will analyse those items under the various heads of damage claimed on behalf of the Plaintiff.
67. On 15 November 2006 the Plaintiff was examined at the request of the Defendant by Associate Professor Paul Spira, a consultant neurologist. Associate Professor Spira stated that the initial hospital records appeared deficient as they said little about the Plaintiff’s cognitive state. Professor Spira obtained only a very limited history of the Plaintiff’s post injury cognitive problems. The extent of the history of cognitive problems was :“Mr Hofer informed me that his memory is not as good as it was prior to the accident”.
68. In my view the above history recorded by Dr Spira is misleading in its understatement. Having seen the Plaintiff’s flat presentation when giving evidence and having heard evidence from the Plaintiff’s mother, I consider that Professor Spira would have been able to obtain a more detailed history from the Plaintiff if he had been accompanied to that examination by a person who could have augmented the factual history given by the Plaintiff.
69. Professor Spira expressed the opinion; “I do not believe that he is carrying any cognitive consequences of the accident.” I do not accept that opinion because it appears to be based on a minimal and therefore inadequate history of the Plaintiff’s current problems as is, for example, evident in the neuropsychological reports of Mr Rawling. Further, it appears that Associate Professor Spira’s emphasis on the Plaintiff’s ability to recall communicating with ambulance officers as evidence of the absence of a significant head injury and therefore the apparent absence of a significant brain injury with a cognitive component makes no allowance for the Plaintiff’s evidence that he is uncertain as to what he actually recalls and what is based on what he has been told.
70. It is not necessary to analyse Associate Professor Spira’s views on the sequelae of the Plaintiff’s orthopaedic injuries as these do not appear to be matters within his area of expertise. I will further analyse Professor Spira’s work fitness opinion when analysing the evidence concerning the Plaintiff’s loss of earning capacity.
71. On 5 July 2006 the Plaintiff was examined by Dr Patricia Jungfer, a consultant psychiatrist at the request of his solicitors. Dr Jungfer concluded that as a consequence of his injuries the Plaintiff had an adjustment disorder with anxious mood and a cognitive disorder due to a mild to moderate acquired brain injury.
72. In practical terms the Plaintiff’s mother described the Plaintiff’s current cognitive problems to include wandering and shortened concentration span, being very forgetful, apprehensiveness, being very anxious, quite depressed, lacking in self-esteem, being angry and snappy.
73. On 15 August 2007 the Plaintiff was assessed at the request of the Motor Accident Authority by Dr Anthony Samuels, a consultant psychiatrist who concluded that as a consequence of his injuries and according to the DSM-IVTR criteria the Plaintiff developed an adjustment disorder with depressed and anxious mood. Dr Samuels was of the opinion that the condition seemed to have settled spontaneously so that the DSM-IVTR criteria were no longer fulfilled. Dr Samuel has not expressed his reasons for that view with the result that his report has diminished weight. Further, he appears to have regard to opinions that were provided to him for his consideration from Dr Brian Noll and Dr Lorraine Jones whose opinions were not tendered in evidence. In the circumstances I find Dr Samuel’s opinion to be partly opaque to analysis in that I have not been able to identify and consider all of the material upon which he appears to have based his opinions. In my view it therefore carries diminished weight : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Uniform Civil Procedure Rules, 2005, Schedule 7, Clause 5(c). Further, Dr Samuel’s assessment seems to be at odds with Mrs Hofer’s factual description of the current psychological problems. I accept Mrs Hofer’s description of the Plaintiff’s problems. In my view her evidence in this regard reinforces the justification for the rejection of the opinion of Dr Samuels.
74. I note that the utility and weight of the occupational therapy report prepared by Mr Peter Williamson at the request of the Defendant is affected by similar problems in that it is apparent from Mr Williamson’s report that he appears to have considered reports from Dr Gibson, Dr Kirby and Dr Jones when none of these reports have been tendered by either party.
Residual disabilities
75. The Plaintiff has significant ongoing physical and cognitive disabilities. The Plaintiff described his residual problems in what I find was an understated manner.
76. In oral evidence the Plaintiff described his physical disabilities as comprising neck pain particularly affecting the neck muscles on the left side, upper back pain between the shoulder blades in the mid back region. He described his neck pain as having largely gone except for the experience of pain and stiffness from time to time. He has continuing left shoulder pain and restriction of movement. He described his back pain as being a continuing problem. He also described pain discomfort and restriction of movement in both hands and wrists.
77. He has been left with considerable pain and discomfort in both wrists, the right more than the left. These problems are made worse in cold weather conditions and with sustained activity with the hands. His capacity to repeatedly lift and carry is adversely affected and that type of work is contraindicated for him. He has observable scarring to both forearms and wrists which cause him embarrassment and awkwardness. He is concerned that the appearance of his wrist scars may cause people to think that he has slashed his wrists.
78. He has significantly reduced sitting and standing tolerance due to increasing back pain. He experiences anxiety when travelling in cars. He suffers from depression and flashbacks, he ruminates about the collision and his sleep is disturbed.
79. The Plaintiff has undergone a personality change, he has memory and concentration impairments, he has suffered a loss of confidence and self-esteem, he withdraws from company and he exhibits anger. This picture is most unlike his happy pre-injury disposition as was described by his mother whose evidence I have accepted.
80. In my view all of these matters have a significantly adverse impact on the Plaintiff’s ability to lead a normal day to day existence and similarly affect his ability to enjoy the amenity of his life.
Plaintiff’s post-injury work history
81. On 8 April 2005, at a time when the Plaintiff was still off work, consistent with his ambition to become a train driver, he sat for a Railcorp induction examination. This was something for which he had applied before he was injured. This examination was a precursor for entry into the traineeship scheme to become a train driver. He said that he did not cope very well with the examination which comprised multiple choice questions. In the examination he found himself reading the questions over and over again without understanding them. He described an inability to concentrate. He described the experience as frustrating. I accept his evidence in this regard. His mother gave evidence that she had not expected him to pass this examination because of his post-injury problems. On 29 April 2005 the Plaintiff received notification that he had failed in his application for employment with Railcorp in its trainee scheme.
82. During his periods of unemployment the Plaintiff maintained contact with Centrelink. He initially received sickness benefits but later received the New Start Job Search Allowance for some time but ultimately had to rely upon his savings because he was financially ineligible for benefits due to his accumulated savings. Centrelink sent him to a number of potential employment situations.
83. On 9 November 2005 the Plaintiff obtained employment for 9 days with an asphalting company named Back to Earth Pty Ltd at Londonderry. The work initially involved driving trucks but the Plaintiff also found himself continually running backwards and forwards shovelling hot bitumen. In this employment he derived a total income of $928 gross. This work caused jarring of his hands and wrists and caused him to suffer pain in the bones of his hands, the right more than the left. The Plaintiff found that his wrists had deteriorated with this work and he found he was unable to cope with it. That work was clearly unsuited to him because of his residual disabilities. I accept the Plaintiff’s evidence in this regard.
84. Between 25 November 2005 and 30 June 2006 the Plaintiff obtained casual employment through an agency named In-2-Staffing Pty Ltd. Whilst in that employment he derived total earnings of $4,281 gross.
85. In this period of contact with the agency the Plaintiff was also placed in a position where he carried out 4 weeks of work with Bradnams Pty Ltd at Maryong. In that employment the Plaintiff was assigned to driving what was described as a medium sized rigid truck delivering variously sized glazed windows and doors to building sites. His duties involved not only driving but also unloading glazed window and door frames with the aid of an offsider in a work system that he appropriately described as a controlled drop. The delivery process required glazed frames to be pulled forward from an A-frame on the truck and then manually caught by the Plaintiff and his offsider to prevent the frames from falling. Despite making adjustment to the work system to lessen the impact of this manoeuvre on his wrists the Plaintiff found that in this work both his hands were being jarred and he found that his right hand was hurting too much. He coped by taking painkillers which helped to some degree. That job expired in December 2006.
86. Having regard to the medical evidence which I have accepted, even though the Plaintiff persevered with the work with Bradnams Pty Ltd, I find that such work was unsuitable for him because of the disabilities he experienced with his wrists. It would have been unreasonable to continue to do that work in conjunction with taking painkilling medication.
87. On 30 May 2006 the Plaintiff obtained employment with a meat supply company known as Lycur Services Pty Ltd. He obtained this employment as a result of a Centrelink connection and through his own commendable perseverance at pursuing that employer for an opportunity to obtain work. He did this out of desperation at being unemployed. The work was heavy and involved carting animal carcasses. After some on-the-job training and after acclimatising himself to working in an atmosphere permeated by the smell of dead animals, which he described as quite confronting, his work essentially involved unloading and delivering animal carcasses to butcher shops. He was required to manhandle considerable quantities of sheep carcasses weighing between 20-30kgs, quarters of beef weighing 50-70kgs, pig carcasses weighing 60-70kgs and goat carcasses weighing about 10kgs. He described a half truckload of sheep carcasses as numbering some 50 sheep.
88. In carrying out this work, which was physically arduous, he learned a technique to take the strain off his wrists by swinging the carcasses onto his shoulders with the aid of a pendulum type swinging momentum movement whilst the carcasses were suspended on hooks. In this work he was assisted and spared from some of the heavier duties. In doing this work he found that at the end of the day his wrists were very painful. In my view that work was unsuitable for him having regard to his wrist, shoulder and back problems, most especially his wrist problems.
89. In 2007 the system of work with Lycur Services Pty Ltd changed so that in addition to unloading quantities of hanging carcasses the Plaintiff was required to frequently and repeatedly manhandle heavy cartons of packaged meat which weighed 27kgs. The work involved manually stripping plastic shrink wrapping from paletted cartons, picking up the individual cartons of meat, carrying them onto a delivery truck and stacking them, driving the truck to the delivery destination, manually unloading the cartons and re-stacking them utilising a system of double and triple handling. The Plaintiff described how this work was performed by him somewhat inefficiently in that it took him longer than was considered to be appropriate to carry out this work. For example, a Saturday shift that should have taken an able bodied person 8 to 10 hours to complete took him 10 to 12 hours to complete, accompanied by significant pain and discomfort. The slowness of his work attracted criticism from his senior co-workers. He found that in order to carry out this work he had to pick up the cartons of meat in a different way and this made his wrists sore. Even then he found that he dropped cartons of meat when carrying out this work. He found the work awkward to perform. He said he had to advise his employer, reasonably so in my view, that he could not continue to do this carton work any longer.
90. That employment ceased in either March or April 2008 due to a decline in the contract work available to the Plaintiff’s employer, Lycur Services Pty Ltd. In any event I find that such work was most unsuitable for the Plaintiff having regard to his ongoing wrist problems. I find that if the work had not ceased to be available to the Plaintiff he would have had to in any event desist from continuing with it on account of his continuing wrist disabilities and the pain he was experiencing in connection with these duties. The work was obviously unsuitable for him because of the residual effects of his injuries. In his employment with Lycur Services Pty Ltd the Plaintiff derived total earnings which have been submitted to be in the agreed amount of $82,625 net.
91. From April 2008 and until the time of the trial the Plaintiff has not been engaged in any employment. He has been unable to find work despite his attempts to do so. In that period he has been ineligible for Centrelink benefits because of his accumulated savings from his work as a meat carter and he has drawn upon those savings for living expenses in the meantime.
92. I have no hesitation in accepting the truthfulness of the Plaintiff’s description of his post-injury work pursuits and attempts as well as his work difficulties. I base that acceptance on the inherent reasonableness of his description of the work he was required to carry out, the reasonableness of his description of the difficulties which he encountered in carrying out his work and the conformity and consistency of these descriptions to the medical evidence that I have accepted. I also base my findings on my assessment of the Plaintiff’s understated matter of fact and directly responsive demeanour when he gave his evidence. I find that in seeking out and maintaining post-injury employment to the extent that he has, the Plaintiff has acted most reasonably in persisting in his attempts to mitigate his lost earning capacity. In doing so he took on and persevered with work that was clearly medically contra-indicated for him and did so to an extent which caused him pain and discomfort. In my assessment there can be no valid criticism of the Plaintiff’s attempts to mitigate his loss of earnings to the date of the trial. In these circumstances I consider that it would be unreasonable and wrong to infer from the Plaintiff’s sustained pursuit of such mitigatory employment that he had an ongoing capacity to carry out such employment in the future.
Plaintiff’s post-injury work restrictions
93. It is relevant to survey the expert medical opinions for their content on the issue of the future work restrictions that apply to the Plaintiff.
94. In his report dated 11 October 2005 which was addressed to the Plaintiff’s solicitor, the consultant occupational physician Dr Davis was of the opinion that the Plaintiff’s physical limitations rendered him unfit to work as a store person, a labourer or in any position requiring arduous physical activity. He also identified the prognostic expectation that the Plaintiff would develop arthritic changes in both wrists over time and that this would be accompanied by increasing pain and impairment such as to lead to eventual early forced retirement from any position the Plaintiff were to undertake. Dr Davis envisaged that the Plaintiff would be at a significant disadvantage on the open labour market. In giving his opinion Dr Davis gave consideration to both the physical and cognitive sequelae of the Plaintiff’s injuries. In my view this opinion raises for consideration the question of what work if any the Plaintiff is able to undertake in the future.
95. The 1 April 2006 report from the occupational physician Dr Michael Lim confirmed that the Plaintiff had permanent restrictions in his earning capacity and was unfit to resume his pre-injury employment as a production worker in a paint factory. Dr Lim noted the Plaintiff’s keenness to obtain employment as a driver. It seems to me from analysing Dr Lim’s report his methodology has been to assume without enquiry or discussion the appropriateness of that work classification for the Plaintiff, following which he then nominated a series of driving positions he thought “are therefore appropriate”.
96. In my view Dr Lim’s nomination of those positions was speculative and was made on the basis of an incomplete consideration of the issue of the Plaintiff’s fitness to carry out such work. Since Dr Lim’s recommendations appear to be unreasoned and speculative I do not accept his view that the Plaintiff is fit for the variety of nominated driving positions as well as the non-descript position of a machine operator. In my view he has not given due regard to the Plaintiff’s problem of reduced sitting tolerance and related low back problems, not to mention the Plaintiff’s wrist problems which I find will be unreasonably aggravated by carrying out the work of a driver. For these reasons I prefer the opinions of Dr Davis to those of Dr Lim on the subject of the Plaintiff’s future work restrictions.
97. In his report dated 12 April 2006 the consultant orthopaedic surgeon Dr Max Ellis expressed the opinion that the Plaintiff was permanently unfit for physically demanding work requiring repeated bending and heavy lifting and forceful use of his arms. In his supplementary report dated 26 April 2007 Dr Ellis noted, realistically in my view, that the Plaintiff’s prospect for re-employment in light duties is minimal. I accept Dr Ellis’ opinions in this regard as they seem to me to be inherently reasonable in their consideration of the Plaintiff’s orthopaedic problems. In my view the effect of these opinions is that the Plaintiff would have minimal prospects of sustaining gainful manual employment.
98. In his report dated 15 November 2006 which was addressed to the solicitor for the Defendant, the consultant neurologist Associate Professor Paul Spira expressed an opinion to the effect that the Plaintiff was in his view clearly capable of heavy physical work, albeit with some right wrist discomfort which, remarkably he expected would diminish over time. I do not accept Associate Professor Spira’s opinion in this regard as it underestimates the magnitude of the Plaintiff’s incapacity for work and does so on the basis of inadequate assumptions.
99. I have reached this conclusion because, first, Associate Professor Spira’s opinion takes into account an incorrect view of the Plaintiff’s capabilities for work involving his right wrist having regard to the opinions of Dr Ellis and Dr Davis whose opinions I have accepted; secondly, the opinion pays no regard to the fact that the Plaintiff also has restrictions in the use of his left wrist which Associate Professor Spira appears not to have considered; thirdly, the opinion pays no regard to the Plaintiff’s experience of low back problems on prolonged sitting and standing; fourthly, it assumes, incorrectly, that the Plaintiff has no ongoing cognitive problems, fifthly, the opinion is of very limited weight and probative value as it appears to be expressing views on orthopaedic issues that are apparently outside the expertise of a neurologist and sixthly, the opinion is expressed to be in qualified terms in which the author defers to the prognostic opinion of an orthopaedic specialist. For the foregoing reasons I therefore reject the work fitness opinion expressed by Associate Professor Spira.
100. In her report dated 20 July 2006 which was addressed to the Plaintiff’s solicitor the consultant psychiatrist Dr Patricia Jungfer arrived at the diagnosis that the Plaintiff had an adjustment disorder with anxious mood together with a cognitive disorder which she did not define in detail. However she related that disorder to be secondary to an acquired brain injury. She cited an example of the Plaintiff’s cognitive abnormalities to be that the Plaintiff’s memory and concentration “are not as astute”. She noted the Plaintiff was more ruminative, worried about his welfare, had impaired self-esteem and self-confidence, all of which was consistent with an adjustment disorder consequent upon a mild to moderate traumatic brain injury. Significantly, she noted that the Plaintiff had been diligent in holding and obtaining other employment. In this context she offered the view that even with his cognitive disorders the Plaintiff has been able to adjust the types of employment he has undertaken and she therefore expressed the view that he was capable of full-time employment.
101. I consider that Dr Jungfer’s opinion on the Plaintiff’s work fitness has been unduly influenced by what I consider to be the Plaintiff’s extra-ordinary and trojan efforts to pursue mitigatory employment including to the extent that required efforts on his part that were beyond the requirements of reasonableness and which were productive of pain and discomfort and which he could not sustain in his best long term physical interests. I therefore do not accept Dr Jungfer’s optimistically expressed views on the Plaintiff’s future occupational prognosis because it appears to me she has placed undue weight on the Plaintiff’s performance of mitigatory work without the benefit of a full and balanced history of how difficult and ill-advised it was for the Plaintiff to perform that work.
102. Neuropsychological test results revealed that the Plaintiff was more likely to fatigue when required to process a lot of information at one time and in the presence of noise and distraction. It is difficult to imagine an industrial work setting where factors such as these could be effectively eliminated or reduced. Recommendations were made concerning the suggested adjustment to be made in the workplace environment. These included the provision of frequent scheduled breaks in the work place with the facility for self monitoring of fatigue, presumably to enable rest breaks, and scheduling of more complex tasks for earlier in the day with the provision of simply worded instructions and the setting of realistic time frames for task completion. In my assessment these limiting recommendations for the Plaintiff’s working environment bespeak a sheltered, benevolent, non-commercial work environment that would be impracticable to achieve. In my view this would also mean that whatever the Plaintiff was able to achieve by way of employment in this regard, it would not attract a commercial wage.
103. In his report dated 9 May 2007 Mr Rawling makes the realistic point that the combination of the Plaintiff’s wrist and cognitive problems represent a significant disability.
104. In his report dated 26 March 2008, which was addressed to the solicitor for the Defendant, the consultant neuropsychologist Associate Professor Wayne Reid offered the opinion that he could not see any impairment in the Plaintiff’s neurocognitive functioning that would affect his capacity to work at his level of pre-injury functioning. He went on to express the overall view that the Plaintiff had no significant residual neurocognitive deficits apart from some difficulties with planning and organising complex tasks and in complex attentional processing which he speculated may have pre-dated the head injury.
105. In my view an analysis of Associate Professor Reid’s opinion concerning the Plaintiff’s work fitness is problematic on a number of fronts. First, the terminology he employs is obfuscatory. For example, it is not clear whether the term “attentional processing” is a term of art to describe an impairment entity or is related to a particular test employed by neuropsychologists or is simply an alias for concentration difficulties. Secondly, Associate Professor Reid had before him a report from Dr Lorraine Jones, the content of which is opaque to analysis because it has not been tendered, a fact which in my view requires that I regard Associate Professor Reid’s opinion with some caution because he has not indicated what if any reliance he placed on that report when he formed his opinions as expressed. Thirdly, and most significantly, Associate Professor Reid’s formulation does not seem to encompass a detailed consideration of the Plaintiffs memory difficulties. Fourthly, I consider the Plaintiff’s memory and concentration difficulties to be a most significant factor for consideration because on any commonsense analysis these impairments affect the Plaintiff’s daily functioning whereas Associate Professor Reid has not explained his reasons for regarding such matters as being of no significance, particularly since he had obtained test results showing the Plaintiff was affected by memory impairments.
106. For the foregoing reasons, I prefer the neuropsychological reasoning proffered by Mr Rawling and Ms Sutton. I therefore do not accept Associate Professor Reid’s opinions on the effect of the Plaintiff’s injuries on his future work potential as I find his views to be inadequately explained and unduly optimistic as to work prognosis : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
107. Dr Anthony Samuels, a consultant psychiatrist, provided a report dated 16 August 2007 which was prepared at the request of the Motor Accidents Authority. I consider his report to be non-contributory to a discussion on the issue of the Plaintiff’s earning capacity. I take this view because clearly the focus of that report was to determine whether the Plaintiff’s disabilities were considered to have exceeded the threshold for an entitlement to damages rather than a medical assessment directed to the issue of the Plaintiff’s work capacity. Further, that assessment was based on statutory thresholds and medical assessment protocols that are not relevant to the damages assessment that I am required to undertake. In addition, Dr Samuels was provided with reports from Dr Brian Noll and Dr Lorraine Jones whose reports were not tendered in these proceedings and it is therefore not possible to determine on reading the report of Dr Samuels as to what regard or reliance if any he may have placed on those reports : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. In my view this undermines and largely reduces the probative value of his report. I therefore do not accept the opinion of Dr Samuels on the issue of the Plaintiff’s work capacity.
108. The functional assessment carried out by Ms Gosling on 20 February 2006 led her to conclude that the Plaintiff’s problems with his concentration, memory and difficulties with problem solving will be barriers to finding suitable work in the future. Ms Gosling also expressed the opinion that in view of the physical and psychological difficulties she identified in the plaintiff it would be difficult to determine suitable work for him. She identified the need for the provision of vocational support and also identified the fact that the Plaintiff will be disadvantaged on the labour market. In my view these matters clearly bespeak a recommendation for a sheltered work environment that is inconsistent with employment on the open labour market. I find that Ms Gosling’s tabulated recommendations for work restrictions that apply to the Plaintiff, which I accept as being reasonable, would exclude the Plaintiff from a wide range of physical activity in a workplace setting. In my view this, taken in conjunction with the Plaintiff’s cognitive difficulties, renders the Plaintiff to all intents and purposes practically unemployable.
109. The vocational assessment carried out by Ms Sutton on 20 February 2006 gave rise to her opinion that the physical and cognitive sequelae of the Plaintiff’s injuries have caused the Plaintiff to encounter significant employment setbacks. The Plaintiff is significantly restricted in pursuing physical work, especially where there is the potential to aggravate his physical symptoms by performing such work. Added to this, whatever the Plaintiff’s pre-injury cognitive limitations may have been, they did not affect his earning capacity whereas now these have been exacerbated by the cognitive changes caused by the head injury. In my view this factor renders re-training an unrealistic option for the Plaintiff. Whereas before his injury the Plaintiff would have been able to undertake a variety of jobs, in her assessment Ms Sutton was unable to identify any clear post-injury vocational options for the Plaintiff. I accept Ms Sutton’s opinion as being practical and realistic in this regard.
110. On my analysis of the foregoing medical opinions I have come to the conclusion that the Plaintiff’s damages for future loss of earning capacity should be assessed on the basis that he is and will for practical purposes remain unemployable.
Assessment of applicable heads of damage
111. On the evidence presented I find that the following heads of damage arise for assessment:
(a) Non economic loss
(b) Past loss of earnings
(c) Loss of future earning capacity
(d) Past superannuation losses
(e) Future superannuation losses
(f) Past domestic assistance and attendant care
(g) Future domestic assistance and attendant care
(h) Future equipment requirements
(i) Future treatment
(j) Future pharmaceutical costs
(k) Gymnasium membership
(l) Past out of-pocket expenses
112. My assessment of these heads of damage is addressed in the ensuing paragraphs.
Non economic loss
113. The Plaintiff has been assessed by the Medical Assessment Service of the Motor Accident Authority of NSW as having a whole person impairment of greater than 10% according to the Guidelines. That assessment gives rise to an entitlement for the Plaintiff to have an assessment of damages for non-economic loss. By reason of the operation of s.134 of the Motor Accidents Compensation Act, 1999, non-economic loss is to be assessed according to conventional common law principles.
114. The survey I have undertaken of the Plaintiff’s residual physical and cognitive problems and incapacities which I have already outlined indicates to me that these problems call for a significant award of damages for non-economic loss to compensate the Plaintiff for the significant loss of the amenity of his life consequent upon the effect of his injuries. This loss of amenity includes his abandonment of leisure reading due to memory and concentration difficulties, his ongoing wrist problems of an orthopaedic nature, to a lesser extent his neck and left shoulder problems, his low back problems, his reduced sitting and standing tolerance, his memory and concentration impairments, his mild brain damage due to traumatic brain injury, his anger, his depression and his adjustment disorder, the personality change described by his mother as well as the scarring to his wrists and forearms which causes the Plaintiff to experience embarrassment and awkwardness.
115. The Plaintiff’s situation represents a challenge for assessment of damages for non-economic loss. This is so because a superficial analysis of the Plaintiff’s presentation would be deceptively misleading. He presents well and appears to be functioning and interacting appropriately with others, however, a closer analysis reveals the Plaintiff is left with significant cognitive and physical problems which will permanently and adversely impact upon his existence and will significantly limit his ability to enjoy the amenity of his life.
116. The Plaintiff submits that damages for non-economic loss should be assessed in the range $300,000 to $330,000. The Defendant submits that an appropriate award for this head of damage should be $140,000.
117. Having considered the Plaintiff’s residual orthopaedic and brain injury related disabilities and the medical evidence concerning those disabilities I consider an appropriate award for damages for non-economic loss to be in the sum of $235,000.
Past loss of earnings
118. At the time of his injury the Plaintiff was employed by CPS Colour Pty Ltd as a storeman and was deriving earnings of $544 per week net. It has been submitted on the Plaintiff’s behalf that this level of earnings was not truly representative of the Plaintiff’s earning capacity over the entire period of 179 weeks between the date of injury on 12 February 2005 and the commencement of the trial on 23 July 2008.
119. There is considerable force in that submission because the Plaintiff was clearly ambitious and his work history demonstrates that he had in the past changed his employment positions in order to improve his position. He had also shown great initiative in obtaining industrial licences for the use of machinery and equipment which in my view made him a highly marketable potential employee in a variety of industries. On the other hand the Plaintiff had been in the position with CPS Colour Pty Ltd for about 5 years which could be seen to be a basis to suggest that he may have been content to stay there. In my view the fact that the Plaintiff had the pre-injury ambition to work for Railcorp as a train driver indicated he was looking to improve his position in other secure employment so that I consider it was unlikely that he would have been content to remain in the employ of CPS Colour Pty Ltd indefinitely.
120. The issue is of some importance to the parties because if the Plaintiff’s earning capacity during the 179 weeks between his injury and trial are measured at his pre-injury rate of earnings of $544 per week net this yields potential earnings but for his injury in the sum of $97,376 net. Consequent upon the operation of s.124 of the Motor Accidents Compensation Act, 1999 this amount has to be reduced by the statutory threshold of the first five days of earnings which means the calculation of the Plaintiff’s past loss of earning capacity for the remaining 178 weeks in the period 12 January 2005 to 23 July 2008 is $96,832 net.
121. On behalf of the Plaintiff it is submitted that the claim for past loss of earnings should involve a two stepped process: allowing the first 52 weeks at the pre-injury rate and then calculating the balance of 126 weeks to the date of the trial at a higher rate because the level of earnings the Plaintiff derived whilst in the employ of Lycur Pty Ltd demonstrated a much higher average earnings rate of $825 per week net and further, over the period to trial the average weekly earnings rate for this proposed second limb of the assessment of past loss of earnings is an average of $862 per week net which, it is submitted, justifies adopting the higher rate of $862 per week for assessment in the second period.
122. Whilst I consider the Plaintiff’s suggested approach to be generally fair and appropriate it must nevertheless be recognised that the process involves an element of speculation as to the dates by which increments would have accrued and the amount of such increments. On the other hand to adopt the pre-injury flat rate of $544 per week net would in my view be unfair to the Plaintiff. In these circumstances, and paying due regard to the imponderable factors I have identified, I have selected a broad average but rounded down figure of $740 per week net for the whole period. Accordingly, the sum of $740 per week net over 178 weeks yields past potential earnings from the date of injury to the date of commencement of the trial in the sum of $131,720 net.
123. From this sum of $131,720 an offset must be made to reflect the impact of the Plaintiff’s mitigatory earnings whilst in the employ of Bradnams Pty Ltd, Bactearth Pty Ltd, In-2-Staffing Pty Ltd and Lycur Services Pty Ltd. Those mitigatory earnings are evident from the Plaintiff’s income tax returns and these have been submitted in the agreed amount of $82,625 net.
124. I find that in the periods since his injury, when the Plaintiff was not working in mitigatory employment, that lack of employment was directly caused by the Plaintiff’s injuries and his resultant disabilities, and was not in any way due to a lack of effort on the Plaintiff’s part in finding mitigatory work.
125. After applying the relevant offset, the remaining balance reveals the Plaintiff’s past loss of earnings to be in he amount of $45,470. I assess the Plaintiff’s past loss of earnings between 19 February 2005 to the commencement of the trial in the sum of $45,470.
Loss of future earning capacity
126. I am satisfied the evidence demonstrates that the Plaintiff has incurred a very substantial loss in his future earning capacity which will result in the Plaintiff suffering future economic loss to the extent that he has totally lost his earning capacity. In these circumstances I am required by statute to state the assumptions, events and circumstances upon which I base my award of damages for future economic loss: s.126 of the Act. I set out those matters in the ensuing paragraphs.
Plaintiff’s earning capacity uninjured
127. I am satisfied that if the Plaintiff had remained uninjured he would have retained an unrestricted earning capacity which he could have utilised in a wide range of physical, semi-physical and some sedentary vocations. Pre-injury, the Plaintiff has been shown to have an average level of intelligence. In my view the fact that the Plaintiff left school because he was not inclined towards study and because he found difficulty with some of the school work required in the later years of his high schooling, together with the fact that mathematical ability was not amongst his strong points, did not detract from him having an unrestricted earning capacity. This conclusion has been amply demonstrated by his pattern of work and earnings in the period since he left school and up to the time of his injury.
The appropriate period for projection of economic future loss
128. The Plaintiff was aged 35 years at trial. It was submitted on his behalf that the projection of the Plaintiff’s future loss of earning capacity should be for a further 32 years to age 67 years rather than what has hitherto been regarded as the conventional retirement age of 65 years. The Defendant opposed that course and made the alternative submission that the projection of the assessment of damages for loss of earning capacity should be to age 60 at a rate that reflected a residual earning capacity and then a further projection of economic loss of a higher rate of loss for a further 5 years to age 65 years. I am unable to discern from within the defendant’s submission a rational basis founded on the evidence which would justify such an approach and I therefore reject it.
129. In contrast, in my view the Plaintiff’s submission is supported by at least two sound reasons. First, without the need for direct evidence on the point it is apparent that there is a discernable trend in the community for people to remain in the work force for longer than the notional retirement age of 65 years for a variety of reasons, including to finance lifestyle; secondly, the Plaintiff clearly had a very strong work ethic. I infer from these circumstances that the Plaintiff is a person who would have worked to age 67 if not more. For these reasons I accept the Plaintiff’s submission that his damages for future loss of earning capacity should be projected to age 67 years.
Appropriate net weekly rate for measuring future loss of earning capacity
130. I have already found that the Plaintiff’s pre-injury level of earnings with CPS Colour Pty Ltd was not an appropriate indicator or representative measure by which to gauge his potential future earning capacity as is evidenced by the fact that the Plaintiff had expressed plans to seek out other employment.
131. Before his injury the Plaintiff had expressed interest in obtaining employment as a train driver with Railcorp. Whilst I accept that was the Plaintiff’s ambition, nevertheless a number of imponderable uncertainties arise concerning whether or not he would have been able to fulfil that ambition. Such uncertainties include whether he would have been selected for an interview and for an examination, whether the Plaintiff would have passed the examination, whether he would have been ultimately selected for the required training programme and ultimately, whether he would have shown aptitude for the job. For these reasons I am inclined towards the yardstick of average weekly earnings as a reference point for the assessment of the Plaintiff’s probable earnings but for his injuries.
132. The question then becomes what percentage or proportion of average weekly earnings provides the appropriate yardstick for measurement of the Plaintiff’s loss. The gross rate for average weekly earnings is $1,260 per week.
133. In my view, having regard to the Plaintiff’s strong work ethic, the fact that he has applied his earnings to acquire property at a relatively young age, his multiple industrial certificates and the initiative he demonstrated by obtaining them, together with pre-injury outgoing personality and his past propensity to change jobs when it suited him indicate to me that a figure higher than just average weekly earnings should be selected. I have come to this view because the Plaintiff was in my assessment an above average worker. I have therefore selected a figure of an additional 10 percent or 110 per cent of average weekly earnings of $1,260 per week gross as the appropriate measure of the Plaintiff’s loss in this case. This is the equivalent of $1,386 per week gross. After applying the effect of the published tax rates and Medicare Levy, the sum of $1,386 per week gross is the equivalent of $1,053 per week net.
The issue of whether the Plaintiff has a residual earning capacity
134. In my view the Plaintiff’s disabilities which I have already surveyed, taken together with the medical opinions I have accepted concerning the Plaintiff’s ongoing future work restrictions indicate that despite his appearance, the combination of his physical and cognitive disabilities effectively close off the potential for mitigatory employment. Further, the Plaintiff had pre-existing weaknesses in his academic abilities; this indicates that he was more dependent on his physical strength and dexterity to exercise an earning capacity. Therefore any pre-existing limitations results in the injury related work impairments having a greater restrictive impact upon the Plaintiff.
135. It must be acknowledged that the Plaintiff has in the past shown determination to work beyond his recommended capacity. In my view it should not be inferred from such circumstances that he will be able to do so again in the future especially given the prognosis of worsening of his wrists with the predicted onset of osteoarthritis. In my opinion any opportunities the Plaintiff may encounter for mitigatory work will be theoretical, transient, short lived and, because of his incapacities, unlikely to be productive of a residual earning capacity.
Percentage adjustment of the award
136. I am required by statute to state the percentage by which the Plaintiff’s award for damages for future economic loss has been adjusted: s.126(3) of the Act. In my view there is no rational basis arising from the Plaintiff’s individual circumstances for applying a discount of greater than the conventional and generally appropriate discount of 15% on account of the potentially adverse vicissitudes; not all contingencies or vicissitudes are adverse or harmful: Wynn v NSW Ministerial Corporation [1995] HCA53; (1995) 184 CLR 485
Calculation of assessed damages for loss of future earning capacity
137. The projection of $1,053 per week net at 5% over 32 years to age 67 years (x 845) yields the sum of $889,785. After discounting this sum by 15% on account of the conventional potential adverse vicissitudes this yields an amount of $756,317. I make no allowance for any residual capacity in view of my finding that such a capacity will not arise. Having regard to the foregoing assumptions, events and circumstances, I therefore assess the Plaintiff’s damages for future loss of earning capacity in the amount of $756,317.
Past superannuation losses
138. Consistent with the assessment of damages for past loss of earning capacity the Plaintiff is entitled to damages for the value of the past loss of compulsory employer funded superannuation contributions. Rather than incur the cost of actuarial evidence to precisely calculate this loss the parties have pragmatically agreed upon the appropriateness of the conventional calculation of 11% of the damages assessed for past loss of earning capacity as representing the value of the past loss of superannuation contributions : Ghunaim v Bart [2004] NSWCA 28. Accordingly I assess damages for past loss of employer funded superannuation contributions at 11% of $45,470 which yields the amount of $5,001.
Future superannuation losses
139. Consistent with the assessment of damages for future loss of earning capacity the Plaintiff is entitled to damages for the value of the future loss of compulsory employer funded superannuation contributions. Using the same methodology for calculation used for assessment of the value of past loss of superannuation entitlements the conventional calculation of 11% of the damages assessed for future loss of earning capacity as representing the value of the future loss of superannuation contributions, 11% of the assessed sum of $756,317 yields an assessment of damages for future loss of employer funded superannuation contributions in the amount of $83,194.
Past domestic assistance or attendant care
140. The Plaintiff makes a claim for the value of past domestic and attendant care services that were gratuitously provided to him by his family in varying amounts of time over various periods from the time he was discharged from hospital on 19 February 2005 up until and the commencement of the trial on 23 July 2008, a period of 178 weeks. The plaintiff submits that in respect of this period the value of the services he received amounts to $45,311. The Plaintiff points principally to the evidence of his mother to support this claim.
141. In contrast, the Defendant submits that the services provided to the Plaintiff do not exceed the 6 hours per week / 6 months threshold pursuant to s. 128 of the Motor Accidents Compensation Act, 1999. In the alternative the Defendant submits that the Plaintiff’s claim for the value of past services should be limited to 100 hours at $20 per hour. The Defendant’s submission in this regard is not supported by detailed or reasoned argument and simply relies on a general assessment of the Plaintiff’s evidence and the opinion of the Defendant’s occupational therapist Mr Williamson who, in his report dated 12 February 2008 at page 16, set out two tables which retrospectively seek to estimate the Plaintiff’s past care needs at 86 hours 20 minutes. The basis of the Defendant’s submission seems to be a rounded up figure based on the report of Mr Williamson.
142. The respective positions of the parties in respect of this head of damage are fundamentally polarised and requires analysis for resolution.
143. I reject the Defendant’s analysis of the Plaintiff’s claim for past-gratuitous services. I do so because it is based upon the incomplete reconstruction undertaken by Mr Williamson in respect of past services provided to the Plaintiff. The analysis is incomplete because it is wholly based on the limited account of the nature and detail of the services that were provided by the Plaintiff’s mother. In my view, especially having regard to the Plaintiff’s cognitive difficulties, including memory difficulties, the better source for information relating to past services is Mrs Hofer as she provided them.
144. I accept Mrs Hofer’s evidence which describes the nature and extent of the services that were provided to the Plaintiff up to the time of the trial. The provision of those services has been analysed by counsel for the Plaintiff into three distinct areas. First, in the period of the Plaintiff’s hospitalisation for 1 week when Mrs Hofer provided assistance to the Plaintiff for 2 to 3 hours per day; secondly, in the 5 weeks that followed when, after the Plaintiff was discharged from hospital she was on call for him the whole time and thirdly, thereafter until the time of the trial the Plaintiff was provided with 4 hours per week in respect of housekeeping services in the form of cleaning, laundry and heavier work and 6 hours per weekend for gardening and property maintenance. I will analyse these periods and services separately.
145. S.128(4) of the Act requires that an assessment of the value of these services must not exceed the statutory rate published by the Australian Statistician. I have identified the relevant rates and calculations in Tables 1, 2 and 3 which are appended to my judgment.
First period: hospitalisation 12 February 2005 to 19 February 2005
146. The Plaintiff was hospitalised for 1 week. During that week Mrs Hofer provided him with 2 to 3 hours of services per day that consisted of feeding him and just being available for comfort and companionship. I accept her evidence in this regard but I assess the hours at the lower end of the range nominated by Mrs Hofer, namely 2 hours per day which amounts to fourteen hours for that week. The attached Table 1 sets out the calculation of the value of such services in the amount of $289.94 in respect of this first period. However, in my view no allowance should be made in respect of this first period as the Plaintiff was in hospital and all of his injury related needs were being provided by the hospital staff. That is not to say that Mrs Hofer did not provide the Plaintiff with services in that week, however, in my view the value of those services are not recoverable in respect of the first week in hospital.
Second period: 5 weeks following discharge from hospital on 19 February 2005
147. In the 5 weeks following the Plaintiff’s discharge from hospital on 9 February 2005 the Plaintiff was provided with services that comprised full time on call care. I accept Mrs Hofer’s evidence in this regard. In this period she was available and on call to attend to the Plaintiff’s needs. She took her long service leave in order to be able to do so. In this period the Plaintiff was recuperating from operations on both his wrists, he was in plaster, he obviously could not use his hands properly and Mrs Hofer provided him with assistance with the activities of daily living on a full time basis as his needs were great. Whilst the actual hours of such attendances were not the subject of detailed evidence in respect of this second period, since the services were undoubtedly provided to the Plaintiff it is necessary to attempt a valuation of these services.
148. Two options arise: an attempt to estimate actual hands-on hours of assistance provided, which was not possible on the evidence, or estimating a reasonable block of daily time to represent a fair estimation of what would have been required to meet the Plaintiff’s injury caused need for domestic assistance and services. On considering the fact that the Plaintiff was incapacitated for manual activities due to his wrist injuries and in addition needed supervision due to the effects of his traumatic brain injury I have concluded that a reasonable approach would be to allow a block of some hours per day. Doing the best I can to achieve a practical assessment of this issue I have concluded that it would be reasonable to allow the Plaintiff the value of available on call assistance for approximately half of what I would infer to be his normal waking hours. I estimate this to be 8 hours per day or 56 hours per week. The attached Table 2 sets out the calculation which results in my assessment of $5,852 in respect of this second period.
Third period: from 5 weeks post-discharge from hospital until the date of the trial
149. After the initial 5 week post-hospital discharge Mrs Hofer described a regime for the provision of services that continued up to the time of the trial. This comprised 4 hours per week of cleaning, laundry and heavier household services together with 6 hours of gardening and property maintenance each week, totalling 10 hours per week. The attached Table 3 sets out the calculation which results in my assessment of $37,996.11 in respect of this third period.
150. There is an argument that the services comprising gardening and home maintenance were not only for the benefit of the Plaintiff but also benefited other family members thus requiring an apportionment of the value of such services to reflect this circumstance. Such arguments which revolved around the nature of the Plaintiff’s “need” as explained in Griffiths v Kerkemeyer [1997] HCA45; (1977) 139 CLR 161 and the cases which followed it were considered and rejected in Morgan v Gibson [1997] NSWCA 212.
151. Accordingly, I allow the claim for services irrespective of the so-called benefit that the Plaintiff’s other family members may have derived from his home maintenance and related services. This course is supported by the comments of Meagher JA in Morgan at [50] where he said:
“… It is nonsense to suggest that, because others may derive a benefit, the respondent’s inability to perform the gardening she used to perform, is in some way a ‘need’ which must be discounted. If the contrary were accepted, the basis of the principle would no longer be ‘need’ but ‘need’ less ‘benefit to others’…”
Assessment of the value of past services
152. On the foregoing approach the total sum calculated for the services provided in these three periods is therefore $43,848. Notwithstanding that the analysis that has led to the above calculations have taken on a semblance of precision in order to ensure compliance with the mandatory terms of s.128(4) of the Act in that damages in respect of these services must not exceed the statutory published rate, it must nevertheless be recognised that there is necessarily an element of imprecision in the process. In making due allowance for that factor I propose to round the calculation down. I therefore assess the Plaintiff’s damages for past domestic and attendant care services in the rounded down sum of $40,000.
Future domestic assistance or attendant care
153. A claim is made for the cost of future domestic services required by the Plaintiff. That claim is made on the basis of the Plaintiff’s residual physical condition rather than on the basis of any cognitive impairments. The Plaintiff claims the sum of $402,932 in respect of these services representing a total of 11 hours per week valued at $30.60 per hour over the Plaintiff’s remaining life span.
154. The Defendant submits that if the assessment threshold provided by s.128 of the Act is overcome, which is not conceded, then an appropriate allowance for such services would be an amount of $20,000. The Defendant’s submission does not disclose a rational calculated basis for this amount other than relying on selected portions of the opinion evidence tending to suggest that there is no need for such services.
155. The occupational therapist Ms Clark has analysed the areas in which assistance of a domestic nature is required and has appropriately divided these into the categories of domestic assistance and handyman and gardening assistance. She went on to identify a series of time estimates for such assistance on a sliding scale which I consider to represent an artificial analysis. I take that view of her time analysis because the Plaintiff has present and persisting wrist problems that preclude a wide range of manually dexterous activities requiring strength and repeated movements. In my view this requires a greater allowance of allocated time estimates than that allowed for by Ms Clark.
156. Instead of following the methodology provided by Ms Clark I intend to approach the assessment of the Plaintiff’s future need for assistance in a more broad and practical manner, guided by and taking into account the relevant medical opinions because in my view the claim for future domestic services falls to be determined by the Plaintiff’s physical impairments. Whilst the opinions of the occupational therapists are relevant to the issue to be determined they are not determinative. I prefer the guidance offered by the orthopaedic and occupational medicine disciplines. The opinions of the psychiatrists and psychologists are in my view non-contributory to the analysis of the issue. This approach reveals two conflicting bodies of medical opinion.
157. The evidence in support of the claim for future services is initially found in the opinions of Dr Davis and Dr Ellis. In his report dated 11 October 2005 which was issued at a time when the Plaintiff had achieved maximal medical recovery with regard to his wrists, Dr Davis expressed the opinion that the Plaintiff would need 6 hours per week of paid assistance with yard work, domestic chores as well as for repairs and refurbishments. In his report dated 26 April 2007 Dr Ellis considered the Plaintiff’s need for the heavier aspects of household maintenance, gardening, landscaping and fencing activities for 4 hours twice per week, i.e., 8 hours per week with the prospect that in the future the need for such assistance would increase.
158. In his report dated 12 February 2008 Mr Williamson, the occupational therapist retained by the Defendant, offered the view that no future domestic assistance to the Plaintiff was indicated. In his report dated 1 April 2006 Dr Lim, the occupational physician retained by the Defendant offered the opinion that the Plaintiff did not require professional assistance with personal care or domestic tasks in the future. I reject both of these opinions as they are unreasoned and because I prefer the opinions of Dr Davis and Dr Ellis since they are grounded upon medical assessments of the Plaintiff’s physical impairments.
159. I accept that the Plaintiff will require a lifetime average of at least 8 hours per week for domestic services and assistance. I accept as reasonable the submitted commercial cost of such services to be $30.60 per hour so the cost of 8 hours of such services is the equivalent of $244.80 per week.
160. The projection of $244.80 per week at 5% over the Plaintiff’s remaining life span of 50 years (x 976.2) yields an amount of $238,973. I do not propose to discount this sum for contingencies as the evidence discloses that the Plaintiff will develop osteoarthritis in the not too distant future and I infer from this that his wrist problems will increase as he ages thereby leading to a probable increase in his need for such services. In my view this factor serves to counterbalance any need to discount the assessment for contingencies. In this case I consider that on the balance of probabilities the contingencies will increase rather than decrease the Plaintiff’s need for such services. I therefore assess the Plaintiff’s damages for the probable cost of future domestic services in the sum of $238,973.
Future equipment requirements
161. The Plaintiff’s future equipment needs were surveyed by the occupational therapist Ms Clark in her report dated 23 May 2007. She has identified 11 items which involve an initial capital cost of $3,578 and a recurring cost of $8.14 per week. Each of these recommended items address the Plaintiff’s upper limb problems. I consider each of the recommended items is in itself a reasonable recommendation and the identified costs seem reasonable. The Defendant’s occupational therapist has not identified any arguments which would contradict the reasonableness of such recommendations. In these circumstances I accept the recommendations and costing put forward by Ms Clark as submitted.
162. The projection of $8.14 per week at 5 % over a remaining life span of 50 years (x 976.2) yields the sum of $7,946.26. The aggregate of the projected weekly costs and the anticipated initial costs amounts to $11,524.26. To allow for the possibility of an overlap in respect of these items I round this sum down to $10,000 and I assess damages for the Plaintiff’s future equipment costs in the sum of $10,000.
Future medical, hospital and physiotherapy treatment
Overview of the evidence recommending future treatment
163. The evidence concerning the Plaintiff’s future needs for probable future medical and hospital treatment, and the cost thereof is not precise. Nevertheless, I am required to attempt an assessment of the cost of such treatment.
164. The report of Dr Hoe dated 30 May 2005 foreshadowed the need for elective removal of the prominent hardware plate in the Plaintiff’s right wrist which would involve a cost of the order of $2,500. It is not clear whether this represented only the surgical fee or was the total combined cost including, surgeon, the fee for a surgical assistant, an anaesthetist, the hospital charges and any ancillary follow up treatment including physiotherapy. There is no indication as to when this surgical treatment might be indicated.
165. Dr Davis has foreshadowed that the Plaintiff will require some $2,000 to $3,000 for future medical investigations but no indication is given as to when these expenses might be incurred. The average cost of Dr Davis’ recommendation is $2,500.
166. Dr Ellis’ predicts that the Plaintiff will require a sub-acromial decompressive acromioplasty procedure at a cost of $6,000. It is not stated as to when this surgery will be necessary. It is not clear whether this represented only the surgical fee or was the total combined cost including, surgeon, the fee for a surgical assistant, an anaesthetist, the hospital charges and any required ancillary follow up treatment. There is no indication as to when this surgery would be indicated.
167. Further, Dr Ellis predicts the Plaintiff will require future medical support and physiotherapy treatment at a cost of $2,000 per annum. The evidence does not permit a dissection of costing between medical and physiotherapy costs. The justification for medical reviews is founded upon the prediction that the Plaintiff’s wrist condition will worsen with the prospect of him developing osteoarthritis, the need to consider the prescription of any appropriate medications such as painkillers in addition to the need to consider whether the Plaintiff requires specialist referrals to an orthopaedic surgeon for the periodic review of the condition of his wrists and shoulder or referral to a psychiatrist or psychologist concerning his mental state.
168. It is necessary to make an assessment of the likely timing of these treatments although the evidence is not precise on this issue.
Medical treatment and support
169. In respect of the sum of $2,000 per annum for proposed medical and physiotherapy treatment, I consider that this sum is a reasonable estimate and should be projected from the present time over the Plaintiff’s remaining life span of 50 years. Accordingly, the projection of $2,000 per annum or $38.46 per week at 5% (x 976.2) over 50 years yields the amount of $37,544.
Medical investigations
170. In respect of the proposed cost of medical investigations of $2,500 I assess this sum as being the reasonable cost of medical investigation that will accumulate over the Plaintiff’s remaining lifetime but I discount the cost by 15% to reflect uncertainty over the timing of the need for and the incidence of such costs which yields an assessment for the cost of these services in the amount of $2,000.
Operative procedures
171. In respect of the proposed operative procedures consisting of removal of the prominent protruding plate and sub-acromial decompressive acromioplasty, although it may appear somewhat arbitrary to do so in the absence of specific evidence as to the likely recommended timing for such procedures, my assessment is that such procedures will probably be deferred until the Plaintiff reaches the age of 50 years. The rationale for this view is that the Plaintiff will probably put these procedures off for as along as possible but at some stage in later life they will probably become necessary due to increasing pain, discomfort and restriction of movement. Accordingly, the predicted aggregate costs of $8,500 will be deferred for 15 years on the 5% discount tables (x 0.481) to yield the discounted sum of $4,088.
Psychological support
172. He has also been diagnosed as having had a depressive adjustment disorder. This is reactive to his circumstances which raises the prospect that the condition will have the propensity to flare up. I accept his mother’s evidence that he still gets angry and depressed and has had a change in his personality. In my view it is only reasonable that the Plaintiff be compensated for the cost of future periodic consultations with either a psychiatrist or a psychologist for the purpose of monitoring these conditions and to monitor the appropriateness of the treatment he may be receiving for them from time to time. Dr Jungfer has identified the cost of a consultation with a psychiatrist at $180. I consider that two such consultations per annum would be reasonable to monitor the depression and adjustment disorder and to consider the effects on the Plaintiff of his cognitive problems.
173. I therefore allow the sum of $360 to cover the cost of such services. This is the equivalent of $6.92 per week which, when projected at 5% over the Plaintiff’s remaining life span of 50 years (x 976.2) yields the sum of $6,755.
Summary
174. In summary, my assessment of the Plaintiff’s need for future medical and hospital treatment is as follows:
(a) Medical treatment and support (b) Medical investigations (c) Operative procedures (d) Psychological support
Total
175. I therefore assess the Plaintiff’s damages for future medical, hospital, physiotherapy and psychiatric treatment in the amount of $50,387.
Future pharmaceutical costs
176. The Plaintiff currently takes painkilling medication in the form of Panadol and Panadeine on an occasional basis. The medical evidence discloses that the Plaintiff is likely to develop osteoarthritis in his wrists as a result of his injuries, particularly in the right wrist. Dr Davis has expressed the opinion that by the age of 40 the Plaintiff will need analgesia and non-steroidal anti-inflammatory medication to assist him to manage his condition. Dr Davis estimates the cost of this medication to be between $300 and $400 per annum by the time the Plaintiff reaches the age of 40 years. I accept the evidence of Dr Davis in that regard.
177. Given the relatively young age at which the Plaintiff is likely to experience osteoarthritis and given the long period of his projected life expectancy during which he will require such medication I assess the cost of such medications to be at the upper end of the range nominated by Dr Davis, that is $400 per annum or $7.69 per week.
178. The projection of $7.69 per week at 5% over the Plaintiff’s remaining life span of 50 years (x 976.2) but deferred for 5 years on the 15% discount tables until the Plaintiff reaches the age of 40 (x 0.784) yields $57,506. I consider it reasonable to add to this amount a lump sum assessment of $500 for the estimated cost of painkilling medications the Plaintiff will continue to take in the interim and thereafter. I therefore assess the Plaintiff’s damages for future pharmaceutical costs in the amount of $8,006.
Gymnasium membership costs
179. Dr Davis has recommended that the Plaintiff be provided with gymnasium membership which he has estimated to be at an annual cost of $600 which is the equivalent of $11.53 per week. It seems to me that such membership is justified on a number of grounds. Given the medical recommendations restricting the Plaintiff’s use of his upper limbs it seems to me to be only reasonable that the Plaintiff be given the opportunity to exercise his upper limbs in a supervised and structured manner which a gymnasium membership would provide. Uninjured, the Plaintiff would probably have achieved such exercise in the ordinary course of a working day were he able to continue to carry out ordinary and unrestricted physical tasks associated with manual work. As he is now no longer able to do I consider it is reasonable that he be provided with the cost of gymnasium membership as recommended by Dr Davis. Given that the Plaintiff’s upper limb problems are permanent I see no reason why the Plaintiff should not be awarded damages for the remainder of his expected life span.
180. Accordingly, the projection of $11.53 per week at 5% over the Plaintiff’s remaining life span of 50 years (x 976.2) yields $11,255.58. Allowing for the possibility that the Plaintiff may not be able to attend the gymnasium for exercise in his later years or, alternatively, by reasons of possible advancing osteoarthritis in the wrists in his later years he may not be able to fully use the gymnasium or maintain full motivation to do so, I discount this sum by 15% for such possible contingencies and I therefore assess the Plaintiff’s damages for future gymnasium costs in the amount of $9,567.
Past out of-pocket expenses
181. The claim for past out-of-pocket expenses is comprised of three components. The Defendant’s insurer has paid the sum of $14,704.50 : s.83 of the Act. The Health Insurance Commission has paid the sum of $763.25 and the unpaid out-of-pocket expenses amount to $464. Accordingly, the total assessment of the Plaintiff’s out-of-pocket expenses is the amount of $15,931.75.
Summary of assessed damages
182. The assessment of the Plaintiff’s damages is summarised as follows:-
(a) Non economic loss (b) Past loss of earnings (c) Loss of future earning capacity (d) Past Superannuation losses (e) Future Superannuation losses (f) Past domestic assistance and attendant care (g) Future domestic assistance and attendant care (h) Future equipment requirements (i) Future treatment (j) Future pharmaceutical costs (k) Gymnasium membership (l) Past out of-pocket expenses
Total
183. I therefore assess the Plaintiff’s entitlement to damages in the sum of $1,497,846. Accordingly there will be a verdict for the Plaintiff in that sum.
Disposition
184. The total of the foregoing damages assessment in the sum of $1,497,846 requires adjustment to reflect and implement the agreed 25 percent apportionment on account of the Plaintiff’s own contributory negligence. The application of that apportionment results in a reduced award for the Plaintiff in the sum of $1,123,384.50.
Orders
185. I make the following orders:-
(a) Verdict for the Plaintiff in the sum of $1,497,846;
(b) The Plaintiff’s contributory negligence is assessed in the agreed apportionment of 25 percent;
(c) Judgment be entered for the Plaintiff in the apportioned sum of $1,123,384.50 after discount;
(d) The Defendant is to pay the Plaintiff’s costs;
(e) The exhibits may be returned;
(f) Liberty to apply on 7 days’ notice if further orders are required.
TABLE 1
PERIOD WEEKS WEEKLY
s.128(4)
RATEHOURLY
s.128(4)
RATEHOURS PER WEEK01.01.2005 to 18.02.2005 01.00 $828.50 $20.71
TABLE 2
PERIOD WEEKS WEEKLY
s.128(4)
RATEHOURLY
s.128(4)
RATEHOURS PER WEEK19.02.2005 to 26.03.2005 05.00 $836.10 $20.90
TABLE 3
PERIOD WEEKS WEEKLY
s.128(4)
RATEHOURLY
s.128(4)
RATEHOURS PER WEEK1. 27.03.2005 to 20.05.2005 07.71 $836.10 $20.90 2. 21.05.2005 to 19.08.2005 12.85 $862.70 $21.56 3. 20.08.2005 to 18.11.2005 12.85 $863.80 $21.59 4. 19.11.2005 to 17.02.2006 12.85 $867.00 $21.67 5. 18.02.2006 to 19.05.2006 12.85 $856.30 $21.40 6. 20.05.2006 to 18.08.2006 12.85 $872.20 $21.80 7. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 8. 18.11.2006 to 17.02.2007 13.00 $903.40 $22.58 9. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 10. 19.05.2007 to 17.08.2007 12.85 $916.20 $22.90 11. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 12. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 13. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 14. 17.05.2008 to 28.07.2008 09.57 $904.70 $22.61
31/03/2009 - Slip rule corrections noted on 27 March 2009 - Paragraph(s) 63 : “… that is not explained with reasons…”
Para 142 : “… damageisare fundamentally…”
Between paras 173 and 174 insert sub-heading “Summary”
0
5
2