Howes v Black
[2011] WADC 184
•8 NOVEMBER 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HOWES -v- BLACK [2011] WADC 184
CORAM: STONE DCJ
HEARD: 1-5 AUGUST 2011
DELIVERED : 8 NOVEMBER 2011
FILE NO/S: CIV 2608 of 2009
BETWEEN: NEVILLE PAUL HOWES
Plaintiff
AND
KANE DAVID BLACK
Defendant
Catchwords:
Damages - Personal injury - Motor vehicle accident - Liability admitted - Loss of earning capacity
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Damages awarded
Representation:
Counsel:
Plaintiff: Mr G T Stubbs
Defendant: Mr G P Bourhill
Solicitors:
Plaintiff: Dwyer Durack
Defendant: Tottle Partners
Case(s) referred to in judgment(s):
Husher v Husher (1999) 197 CLR 138
Mastaglia v Burns (2006) 32 WAR 427
Southgate v Waterford (1990) 21 NSWLR 427
STONE DCJ:
Introduction
On 13 November 2006 the plaintiff, Mr Neville Paul Howes was riding his motorcycle along Safety Bay Road in Waikiki when a motor vehicle driven by the defendant, Mr Kane David Black collided with Mr Howes' motorcycle. Mr Howes sustained multiple serious injuries and he required emergency transport to hospital for medical treatment.
At the time of the accident Mr Howes was 44 years of age and married with two teenage sons. He had his own business and he was working on contract as a building site supervisor. He and his wife had recently purchased a block of land and he was about to build the family home on the property.
Since the accident Mr Howes had required medical treatment and surgery, he had tried to continue working in the building industry, the two storey home in which he and his family were living had been partially completed, the marriage had broken down and his wife had recently advised she was about to leave him.
Mr Howes claimed damages arising out of the accident for pain and suffering, inconvenience and loss of enjoyment of life, past and future medical treatment needs and expenses, past and future domestic assistance, loss of earnings and loss of earning capacity.
Liability for negligence was not in issue as it had been admitted by Mr Black by his insurer.
Issues in dispute
1.The nature and extent of Mr Howes’ injuries.
2.The extent of Mr Howes' residual disability.
3.Mr Howes' work capacity.
4.Mr Howes' past loss of earning capacity.
5.Mr Howes' loss of future earning capacity.
6.Mr Howes' past domestic assistance needs.
7.Mr Howes' future domestic assistance needs.
8.Mr Howes' past medical treatment expenses.
9.Mr Howes' future medical treatment needs and expenses.
10.General damages.
The nature and extent of Mr Howes' injuries
The extent of Mr Howes' residual disability
At the time of the collision with the motor vehicle Mr Howes was riding a large motorcycle, a Suzuki TLR 1000R. He was wearing a full leather padded suit, protective leather gloves, racing motorcycle boots and a helmet. He was flung off the motorcycle onto the road. He had little recollection of the accident but recalled holding his hands and knowing they were injured. He also recalled being taken by ambulance to Rockingham-Kwinana Hospital and then to Fremantle Hospital.
Mr Howes was admitted to Rockingham-Kwinana Hospital on the evening of 13 November 2006 following the accident. He was subsequently discharged from Fremantle Hospital on 17 November 2006.
Mr Howes sustained injuries to his left wrist (complex comminuted fracture of the left distal radius), right hand (comminuted fractures of the right index finger and right middle finger metacarpals; an intra-articular fracture of the right middle finger proximal phalanx), the lower back (fractures of transverse processes, right 3rd and 4th lumbar vertebrae), the cervical spine (a soft tissue injury, C4/5 and C5/6 facet joints), his right foot (a soft tissue injury to the right mid-foot and fracture of the right small toe) and his right testicle (a soft tissue injury to the scrotum).
On 14 November 2006 Mr Howes underwent surgery to have his left wrist distal radius fracture reduced and internally fixed with a metal plate and screws. The wounds to his right hand were debrided and the fractures internally fixed with metal plates and screws.
He required hand therapy, physiotherapy, splinting and a back brace. He was discharged from hospital with a plaster on both wrists and support slings. He was given significant analgesic medications including Paracetamol (two tablets four times a day), Diclofenac (anti‑inflammatory), Oxycontin (40mg twice daily), Gabapentin (a neuromodulating analgesic, 300gm three times a day), Temazepam (to help with sleep) and Oxycodone (10 to 20mg four hourly). He was to be reviewed by the hospital's acute pain service regarding management of his post-operative pain.
MRI scanning of his lumbar spine on 24 November 2006 revealed right L3/4 transverse process fractures, shallow disc bulges at L3/4 and L4/5, and a small disc protrusion at L5/S1 with no significant neural compression.
In the initial stages Mr Howes experienced severe pain in his left wrist, right hand and lower back. He subsequently experienced pain in his neck. He later had pain in his right buttock and pain radiating down both legs. He had weakness in his hands and wrists. On a number of occasions he underwent surgery and he had injections to improve his function and decrease the persistent severe pain in his hands, left wrist, neck and lower back. He had been on very high doses of pain medication continuously since the accident about which I will say more in a moment.
During the intervals between his surgical procedures and treatment Mr Howes returned to work as a building site supervisor. He worked at a variety of locations for varying lengths of time. He said, and I accept, that he worked slowly. He first returned to work after the accident in February 2007. He last worked in early January 2010. During the same period he worked on the construction of the family house with the assistance of others. He also participated in a program for exercise assistance through Guardian Exercise Rehabilitation doing exercises in a pool and at a gym between mid‑July 2007 and mid‑January 2008 but ceased due to work commitments and pain experienced after work. He and his family moved into the house although it remained substantially unfinished. I will also say more about his work and the unfinished house in a moment.
On 3 April 2007 he had surgery for his right index finger and middle finger metacarpal metalwork removal and tendon adhesion.
On 21 May 2007 he was referred to a pain clinic and offered a place in the Pain Understanding and Management Program (PUMP).
On 26 June 2007 he had surgery for left wrist arthroscopy, superficial radial nerve decompression and ulnar styloid.
On 30 October 2007 he had surgery for right index finger metacarpophalangeal joint arthrodesis with tendon tenolysis and left ulnar nerve decompression at the wrist.
MRI scanning of his lumbar spine on 14 December 2007 revealed healed transverse process fractures of L3 and L4, lumbar degenerative disc changes with new annular fissuring at L3/4.
On 15 April 2008 he had surgery for ray amputation of his right index finger.
On 19 November 2008 he was given a caudally (tailbone) directed epidural and injections of his facet joints at C4/5 and C5/6.
On 30 October 2009 he had surgery for insertion of some trial leads in his neck and lower back regions.
On 9 February 2010 he had surgery for insertion of a permanent stimulator system in his neck and lower back regions.
On 13 May 2010 he was reviewed by consultant psychiatrist, Dr Dennis Tannenbaum who made a diagnosis of severe major depression with associated generalised anxiety and panic disorder.
On 27 August 2010 he underwent a cryorhizotomy to denervate the facet joints at L4/5 and L5/S1 bilaterally.
On 12 and 27 October 2010 he was assessed and subsequently reviewed by his treating consultant psychiatrist, Dr Michael Woodall who made a diagnosis of major depressive disorder, chronic pain syndrome and secondary anxiety and panic attacks. He observed that Mr Howes had been treated with anti-depressant medication with limited benefit.
On 2 November 2010 he had surgery for his right third finger metacarpal metalware removal and tenolysis of extensor tendon.
Mr Howes
Prior to the accident Mr Howes had a full life in his work, family and recreational pursuits. He had claimed and the evidence was not in dispute that the accident had left him with a range of problems: chronic and significant pain and discomfort, generally and with activities and movement that interfered with social, household, occupational and recreational functioning; generally reduced physical and mental capacity, function, range of movement, strength and dexterity including poor grip in the right hand, walking with a limp, problems with erections and sexual function, bending, twisting, sitting, rising from the ground, ambulation and weight bearing; sleep disturbance; scarring; reliance on medications; requirement for domestic assistance; social avoidance, tendency to be readily upset, feelings of panic, lack of motivation, inability to relax and extreme anxiety; chronic depression, irritability and agitation despite taking antidepressants; suicidal ideation. He had undergone significant and painful treatments including surgery and amputation of a finger.
Dr Troye Wallett, who was Mr Howes' treating general practitioner from mid-2007 until late 2009, said he was mainly seeing Mr Howes for pain control but often he would help him through emotional and mental crises. In Dr Wallett's opinion Mr Howes was disabled enough to be eligible for a disability pension. He went on to state: 'Through all of this Mr Howes attempted to continue work. On numerous occasions I advised Mr Howes to get a disability pension from Centrelink but he would invariably continue looking for work and got various jobs during the time that I saw him. These jobs caused him a lot of stress as he was unable to work fast enough and had a hard time controlling the pain he felt during the day'.
Current symptoms
In late 2010 Mr Howes' predominant pain was in his lower back. He was in significant discomfort. The back pain was severe. He had right leg numbness and pain. He also had pain in his wrists and hands. He had some pain from his neck and shoulder region and thoracic spine but that was minor as there had been improvement since the insertion of the permanent stimulator system.
Mr Howes was last seen by his treating consultant orthopaedic and hand surgeon, Mr Paul Jarrett on 10 January 2011. At that time, Mr Howes had swelling of his right hand. There was stiffness, discomfort and dysfunction of his right hand. He had left wrist and forearm pain. There was dysfunction of his left wrist. When Mr Jarrett was shown at trial the DVD recording of the surveillance footage of Mr Howes during the period 6 May 2011 to 11 May 2011 he said Mr Howes' hand use was a little bit faster than during the last examination but he observed that that examination was two months after Mr Howes' most recent right hand surgery.
When Mr Howes was last seen by his treating neurosurgeon and pain specialist, Dr David Holthouse on 1 March 2011, he presented with 'the same problems, predominantly lower back' pain. The stimulator had significantly improved his neck and shoulder pain although the pain was still present.
Mr Howes was last seen by Dr Woodall on 3 May 2011. Dr Woodall observed that Mr Howes' current symptoms and complaints were little changed from his previous assessment of him on 12 April 2011: 'If anything he reports more days where he feels depressed and incapable of undertaking day to day tasks. He has continuing problems with insomnia and reports feelings of hopelessness and some suicidal ideations. Overall I consider that he remains significantly depressed in addition to the psychological difficulties he encounters managing his chronic pain'.
In Dr Woodall's and Dr Tannenbaum's opinion the development of Mr Howes' major depressive disorder resulted from the disability and pain that he experienced as a result of the accident. Dr Woodall's prognosis was guarded with regard to Mr Howes' response to treatment of his depressive symptoms because of the chronic pain. He doubted Mr Howes would achieve remission of his depression; however, some partial improvement may be possible with judicious treatment. Dr Tannenbaum's prognosis for satisfactory resolution and maintenance of remission of Mr Howes' depression was poor.
Dr Tannenbaum went on to say in his evidence:
My understanding of Mr Howes was that he was a man who had never had a predisposition to psychiatric disorder and was a robust individual who, throughout his life, had really kept himself very busy and very active. The pain and the difficulties that he was experiencing was driving him crazy with the inactivity. He tried to do as much as he possibly could with respect to helping in the home and doing other things, and he needed to do something. So he was doing to the best of his difficulty - to the best of his ability. But he's certainly paid with pain at times after having undertaken some of these activities.
Mr Howes was last seen by Mr John Hill, emeritus consultant orthopaedic surgeon on 14 April 2011 for a medico-legal report. With respect to Mr Howes' symptoms Mr Hill observed: 'Essentially the symptoms are consistent with the circumstances of the accident described to you. The persistence of, what appears to be, severe chronic lumbar back ache is the result of what was essentially a soft tissue injury together with the fracture of right transverse lumbar vertebral process which is greater than one would have expected from this type of injury'. In his evidence Mr Hill went on to explain that the fracture of the transverse lumbar vertebral process was quite a severe injury usually associated with a fairly significant soft tissue injury with persisting disability. The difference with Mr Howes was 'his presentation and symptoms appeared to have deteriorated rather than gradually improved or at least stayed what they were on the earlier examination' on 5 March 2009. In Mr Hill's opinion since 5 March 2009 Mr Howes' condition both physically and mentally appeared to have deteriorated. He went on to state that chronic lumbar pain was recognised as being a disease in its own right.
Dr Martyn Flahive, consultant occupational physician who examined Mr Howes on 16 May 2011 for a medico-legal report stated that Mr Howes had significant impairment in his injured (dominant) right hand. He could grip less in his right hand than in his (injured) left hand. He presented 'as a significantly disabled individual with him having very limited lumbar spine movement and pain on movement. He had difficulty walking without a limp and is unable to crouch or rise on his heels and toes'.
In Mr Hill's and Dr Flahive's opinion Mr Howes' perception of his pain was probably greater than what would have been expected was the case.
Current medication
At the time of trial Mr Howes was taking anti-depressant medication (Agomelatine 25mg, two tablets daily; Dormizol 10mg, one tablet daily; Avanza 30mg, at night; Efexor 150mg, in the morning) and analgesic medication (Oxynorm 20mg, two tablets every three to four hours, in addition to taking two tablets in the middle of the night or averaging up to ten tablets a day; Oxycontin 80mg, one tablet twice daily; Panadol, six times a week for headaches).
In his medico-legal report of 7 July 2011 Dr Flahive stated 'this is a very high dose of narcotic analgesic medication with this being a daily dose 360 mgs of Oxycodone or equivalent of 540 mgs of Morphine taken orally or 180 mgs of injected Morphine (approximately 12 standard morphine injections per day) and this [is] of concern [to me] given that most of it is being taken in a rapid onset formulation rather than [in] a controlled release preparation'. He went on to state: 'The most significant concern in terms of his current treatment for his disabilities is his ongoing narcotic use'.
Dr Holthouse who had been managing Mr Howes' pain since 4 November 2008 did not disagree with Dr Flahive's concern. Dr Holthouse said his main occupation was dealing with patients with long term disabling pain in a combined surgical/non-surgical practice. He explained in evidence that the biggest thing he faced with Mr Howes was trying to get Mr Howes' pain under control so he was in a position to wean off the narcotics:
…But I'm actually in the process now, given the fact they haven't improved him, we're in the process of weaning - weaning things down. It has been very difficult for us to wean things down and - I mean if you - when we have put the doses down, he has been visibly and markedly worse. So sometimes as a physician, you're stuck between a balance between side effects and effect. And as I say, I assure you that if I could easily put him on a lower dose of things, and the plan is to eventually walk towards a lower dose - we actually swapped him onto a narcotic which tends to - it tends to be easier to wean down with time, but I think we're still - we're still fighting the fact that he still has ongoing pain. And if we do wean him down, I don't think it's going to magically cure him, I think he's still going to have as much pain as before and I still don't believe he'll be functional.
Dr Flahive explained that some of the side-effects of significant narcotic medication were decreasing function, hypersensitivity to pain and lack of sexual function. Dr Holthouse agreed that Mr Howes was experiencing side effects from the pain relief medication.
Disabilities
The medical evidence established that as a result of the accident Mr Howes sustained serious injuries to his left wrist, right hand, neck and lower back. He had significant ongoing treatment and surgery for his upper limb injuries. He had a level of permanent physical disability, particularly in relation to his lumbar spine, left forearm, left wrist, right hand and fingers. He had made increasing complaints of pain in the lower lumbar spine and attempts to alleviate that pain by the permanently implanted spinal stimulator had not succeeded. However, the complaint of pain from his neck injury had been alleviated by the permanently implanted spinal stimulator. Because of the disabling pain he had been consuming increasing quantities of narcotic analgesics to a level which all the medical practitioners considered unacceptable and of concern. His continued consumption of high levels of narcotic analgesic appeared to have had an impact on his overall condition and his ability to function. Although as Dr Holthouse pointed out Mr Howes would not be functional even if his medication was reduced and he would require some level of narcotic analgesics to function in the future. Mr Howes also had as a result of the accident a level of permanent psychiatric disability. He had a diagnosis of major depressive disorder, chronic pain syndrome and secondary anxiety and panic attacks. It was expected that future treatment of his mental health issues would result in only partial improvement.
In assessing the extent of Mr Howes' physical disability I accept the defendant's submission that there was a discrepancy between Mr Howes' description of his capacity and his activities that were observed in the DVD surveillance footage of November 2010, May 2011 and July 2011. I also bear in mind Dr Tannenbaum's evidence that the problem with making observations about capacity and activities from the surveillance footage was that at the time Mr Howes' was taking strong pain medication to function and what was not known was how much was taken, when the medication was taken and how he felt the next day.
The activities that Mr Howes said he could not carry out or he encountered difficulty with, but which appeared to be contradicted by the surveillance footage, were lifting up his arms to wash his hair; turning his back sufficiently to perform normal toileting functions; driving because of pain and difficulty getting in and out of a vehicle; moving his right hand and wrist; lifting anything of significance; and needing to lean on a shopping trolley while helping his wife with shopping.
Mr Howes' work capacity
Mr Howes was born on 28 March 1962 in the United Kingdom. He was dyslexic and he could not read or write. He left school at 15 years of age to work as a builder's labourer. He became a builder as a result of experience and course work. He married his wife, Mrs Lorraine Howes on 18 December 1992. Mrs Howes assisted him with his dyslexic disability. She also assisted him in obtaining further construction industry qualifications. In 1999 he applied for and he was granted membership of the Federation of Master Builders. He worked as a successful builder in the United Kingdom, Holland and Germany.
In July 2005 Mr Howes, his wife and his two young sons immigrated to Australia. They initially went to Adelaide but then went to Perth to pursue work opportunities.
Mr Howes got a start as a bricklayer/labourer with the Northerly Group which was building shops. About a month later he became the site foreman which was a 'hands-on job'. He explained what the role of a 'hands-on' site foreman entailed on that job:
I had to organise the men, make sure the work was there, make sure the work was done properly, also get involved with the work, doing the work, hands on like if they needed a wall to build I wouldn't get a bricklayer in, I'd just do it myself … there was other work, hanging doors, plastering, I done all of that for them.
In December 2005 Mr Howes and his wife purchased a block of land upon which he planned to build a two storey residence as the family home and to showpiece his tradesman skill and expertise.
Mr Howes subsequently set up his own company, Neville Howes Building Contractor in September 2005. He also set up the Howes Family Trust in April 2006.
Mr Howes was contracted to the Northerly Group where he was a 'hands-on' site supervisor. He was site supervisor when the accident occurred.
In the lead up to the accident he was mainly working for the Northerly Group as site supervisor and LJ Hooker doing house inspections, repairs and maintenance but he was also doing other work. He was working 50 hours per week.
Mrs Howes did some of the paperwork for Neville Howes Building Contractor and she liaised with the company's bookkeeper and accountant. She was less involved in the business than in the United Kingdom because they had employed a bookkeeper. In the United Kingdom she had done about 10 hours per week.
After the accident the house plans for the family's two storey residence changed. The downstairs was downsized and the plans for an indoor swimming pool and workshop were dispensed with.
Following the accident Mr Howes returned to work in February 2007 for the Northerly Group as hands-on site field supervisor at the Travelodge in Perth. He said he 'struggled a lot at work because of his back' and driving to work from Port Kennedy.
In June 2007 he worked for the Northerly Group in Albany for a week 'digging, organising concrete down there … Organising a bobcat man down there and laying the path… Just slow edging, edgework. When the bobcat will dig the ground out, I'll just stay there with the shovel and just knock the edges off'. He had difficulty bending and he found the work painful in his hand and back.
He worked again for the Northerly Group for a period from 19 September 2007 until 18 October 2007. He was 'hands-on' site foreman supervisor on three sites. One site involved the refurbishment of a hotel. He said he 'struggled a lot at work because of [his] back'. Driving to the jobs caused him a lot of pain and discomfort. He felt he could not do the job properly. He was not fast enough doing the work. He had difficulty holding a screw gun whilst screwing hinges on doors and he experienced pain in his left wrist when he used his left hand to support the screw gun. He was also organising other tradesmen and checking on their work: '… there's a great deal of people. There was gyprockers there. That's the people putting the plaster board up. There were electricians there. There were plumbers there. And I was just like keeping an eye on everybody at the same time'.
During 2007 work commenced on the construction of the family home. The groundwork was done by a company. Mr Howes worked on some of the projects with the assistance of his wife and others. Mr Howes was restricted in what he could do by the pain in his back and hands. He had difficulty bending and he had to adapt to working on his knees. There were many jobs he would have done himself but he was unable to because of his condition following the accident.
He next worked when he was contracted to the Northerly Group as site foreman supervisor from 18 February 2008 until 7 March 2008. He had difficulty getting to people on the top floor if he had to use the stairs. He was very slow getting to the jobs. The work hurt his back.
He worked on several small jobs in August, September, October and December of 2008. He also worked on several relatively small jobs in February, March, April, May, June, July, August and December of 2009. The last time he worked was in January 2010 installing notice boards in a bank building for the Northerly Group.
During his evidence Mr Howes described the difficulty he experienced at work; holding and operating tools and equipment, kneeling because he could not bend, pain in his hands, wrist and back. He had to work at a slow pace because of pain.
Mrs Howes described her husband's routine when he came home from work following the accident: '…he'd just come in. He would want to go straight into the shower to get hot water on to his back and want to go to bed. He didn't engage with any of us. He had virtually no appetite. I was very worried about him. He didn't seem to want to eat anything. He just wanted his bed and his drugs'.
In mid-2009 the Howes family moved into the unfinished family residence. Since then Mr Howes had made a couple of doors but he had been unable to complete the home because of his financial situation.
Mr Howes did not 'see a future' for himself. When asked to describe his day-to day routine he said: '… I just plod around the house. I - I try to do a bit of work downstairs if I can. Then I - I go upstairs and get into bed, sleep'.
Dr Woodall considered Mr Howes was not capable of employment when he provided his medico-legal report of 9 January 2011: 'He is able to undertake limited work around his own home, however, is not able to do so efficiently and exacerbates his pain symptoms when he does so. Attempts to return to employment have been unsuccessful due to these effects and his inability to work at a pace that would make him employable. Unfortunately, his learning disability makes administrative work or retraining unlikely to be successful'. He considered Mr Howes was totally unfit for work. He said Mr Howes' 'learning disability means he will be unable to be retrained or undertake administrative work requiring literacy skills. His difficulties in reading or writing will be made worse by his depression and anxiety, which often impair attention and concentration. Mr Howes' earning capacity is therefore limited to occupations that he currently has skills in and limits his capacity to undertake alternative employment'.
Dr Tannenbaum agreed with Dr Woodall's assessment of Mr Howes' work capacity. He said 'a prognosis of him being able to return to any kind of work is bleak'.
Dr Wallett considered Mr Howes was so disabled he should apply for a disability pension.
Dr Jarrett said he anticipated Mr Howes' 'dyslexia would disadvantage him especially from work involving reading and writing and administration. Given his injuries preclude him from undertaking most manual jobs of a heavier nature, including his original trade … having bilaterals in both left and right upper limb injuries, that in its own right probably precludes him from those activities … Of course, adding in his back injury certainly doesn't help but the upper limb injuries in their own right would be sufficient'. He went on to say:
…by and large, I think his ability will be reasonably static day to day. There'll be some - I mean, people who have injured themselves sometimes less, they have slightly good days and slightly bad days but, by and large, his ability will be more or less constant. In terms of using his hands, I mean, where I've perceived he's probably going to have more problems is either doing very fine tasks with his right hand, but in terms of the heavier tasks I would anticipate that he can do moderately heavy tasks but once he needs to do them for prolonged periods of time, then that will become an issue, or if it's very heavy, then that would be an issue. But using his hands for moderate activities for 10, 20, 30 minutes, I would have thought he would be capable of. He'll be slower and more uncomfortable than had he not injured himself but he's probably capable of those. But then doing - doing something he can manage for half an hour, he probably simply won't be capable of doing that all day, for instance - - - over a number of hours.
Mr Hill, who was called as a witness for the defendant, said when he saw Mr Howes on 5 March 2009 he considered that 'he would be able to work in light building activity such as maintenance work, and possibly as a building supervisor. Since then, his condition both physically and mentally appears to have deteriorated and I do not believe he would now be able to undertake that type of activity, particularly where there would be pressure on him to perform'. He went on to say 'the fact that he has been essentially out of - other than the limited capacity that he worked for those first two years, it would be difficult for him to return to gainful employment'.
Dr Holthouse considered Mr Howes' was unlikely to return to work in the future. He explained that in terms of Mr Howes' future treatment needs:
…we're still trying to look into options for him, but I certainly don't want to do anything over the top and invasive with him. I just - I mean, my aid would - I'd like to ideally get him onto as lower dose of narcotics as possible and functioning socially. I don't see that he will ever get back to any paid employment, but I would - that's my long-term aims for him.
With respect to the employment undertaken by Mr Howes following the accident he said:
… he was finding it increasing difficult to maintain his work and - but I mean he had the financial stress of paying the bills and saving his house, so he was really forcing himself to work, and in some respects that possibly even worsened his pain state.
Dr Flahive also considered Mr Howes was not fit to undertake his pre‑accident work as a self-employed builder. However, Dr Flahive was the only medical witness who considered Mr Howes was capable of returning to employment: '…it is my view that eventually he can undertake some supervisory work in the domestic or commercial building or undertake some light hands-on work or alternative employment.' The types of employment Dr Flahive considered suitable for Mr Howes were maintenance supervisor, maintenance worker/handyman undertaking repairs and inspections on properties or retail assistant in a hardware outlet. Dr Flahive conceded that whilst Mr Howes was dependant on his current narcotic medication he was unfit to undertake any employment.
I do not accept the defendant's counsel's submission that, on the basis of Mr Howes' proven determination to work despite his injuries and disabilities, if his pain was managed in such a way as described by both Dr Flahive and Dr Holthouse, that he would regain enough function to return to the workforce in a capacity where he was working for most, if not all, of his future working life.
Having regard to the weight of the evidence and my own observations of Mr Howes and the DVD surveillance footage of him I considered it was unlikely that he would return to some form of full-time employment. There was only a possibility that he would return to the work force on a part-time basis to take up an occupation like that mentioned by Dr Flahive. In the circumstances, I am satisfied that Mr Howes was incapacitated for work and he would remain incapacitated for the balance of his working life.
Mr Howes' past loss of earning capacity
In assessing Mr Howes' past loss of earning capacity I bear in mind that he had built up a successful building business in the United Kingdom; his rapid movement into the Western Australia job market upon arrival here, his willingness to work long hours; his plans to build his own house to exhibit his skills with a view to attracting work; his earnings history in Western Australia; the entries for 2007 in his business' general ledger which showed his continuous earnings and involvement with the Northerly Group as a source of work; and his post accident determination to get back to work.
Pre-accident earning capacity
In the financial year ending 30 June 2006 Mr Howes was operating his business as a sole trader, trading as Neville P Howes. The Howes Family Trust commenced operation around 1 April 2006.
According to Mr Howes' income tax return for 2006 the total business income derived from the business Neville P Howes for the financial year was $70,900. Business expenses in total were $20,467 and the net business income was $50,433. As there were no further tax deductions, his taxable income was $50,433. After the payment of income tax ($10,989), the Medicare Levy ($756), and applying the various tax offsets ($450), his net income was approximately $39,137 or the equivalent of $752 net per week.
Mr Howes also generated income through the Howes Family Trust. According to the Howes Family Trust tax return for 2006 the total business income was $23,080. Business expenses were $12,741 and the net business income was $10,339. The income of $10,339 was distributed to the beneficiaries of the trust with $772 being distributed to each of Mr Howes' two sons and $8,795 being distributed to his wife.
The defendant's counsel did not dispute that the income derived from the business was the product of Mr Howes' own physical efforts, but he submitted that whilst it may be reasonable to add back the income distributed to his two sons, it was not reasonable to add back the income distributed to his wife. The defendant's counsel submitted that Mr Howes' situation should be distinguished from Husher v Husher(1999) 197 CLR 138 on the basis that Mr Howes' wife performed valuable services for him as part of his income earning activities in that she prepared invoices, assisted him with preparations for jobs, even to the point of entering job locations into his GPS. The defendant's counsel also submitted that as Mr Howes was functionally illiterate, if his wife had not been available to perform the services for him, he would have paid someone to do so.
I do not accept the defendant's counsel's submissions as the evidence established Mrs Howes' contribution to the business was not significant. Her involvement in the business in Western Australia was reduced when compared with what she had done in the business in the United Kingdom. A bookkeeper was employed to deal with the accounts. Mrs Howes only did some of the paperwork and she liaised with the company's bookkeeper and accountant.
In Mastaglia v Burns (2006) 32 WAR 427 at [89] Martin CJ stated:
As has been enunciated many times, where a person is injured as a result of the tort of another, by reason of which injuries the person is rendered less able to work, that for which compensation is awarded is lost earning capacity, not simply lost earnings. In the context of earnings derived through a partnership in which the whole of the income is essentially derived from the personal exertion of the person who has suffered injury, which partnership is terminable at will, the High Court has made clear that the amount which is to be compensated is that which the injured person has lost; namely, what he or she would (as opposed to could) have expected to have had under his or her control and at his or her disposal by utilising the working capacity impaired as a consequence of the injuries sustained (see Husher v Husher (1999) 197 CLR 138).
Accordingly, if the income distributed to Mr Howes' wife ($8,795) and two sons ($772 x 2) was added to Mr Howes' taxable income ($50,433), then his taxable income would be approximately $60,772 for the financial year ending 30 June 2006. After the payment of income tax ($14,091), the Medicare Levy ($911), and applying the various tax offsets ($450), his net income for the financial year ending 30 June 2006 was approximately $46,219 or the equivalent of $888 net per week.
In the financial year ending 30 June 2007, Mr Howes' gross income as shown in his income tax return was $31,604. From the general ledger it would appear that that figure included six entries of post-accident gross earnings totalling $4,391.64. I will say more about that in a moment.
The total business income for Neville P Howes in the financial year ending 30 June 2007 was $5,356. The expenses were $4,735 and Mr Howes' net income from the business Neville P Howes was $621.
Mr Howes also generated income through the Howes Family Trust. The total business income for the trust was $67,388. The expenses were $21,398 and the net income from the business was $43,649. The income of $43,649 was distributed to the beneficiaries of the trust with $1,333 distributed to each of Mr Howes' two sons, $10,000 distributed to his wife and $30,983 distributed to Mr Howes. The $30,983 formed part of Mr Howes' income.
Mr Howes' taxable income for the financial year ending 30 June 2007 was $31,604 ($621 + $30,983). After the payment of income tax ($4831), the Medicare levy ($474) and applying the various tax offsets ($703), his net income was approximately $27,002 per annum or $519 net per week.
Accordingly, if the income distributed to Mr Howes' wife ($10,000) and two sons ($1,333 x 2) was added to Mr Howes' income for the year ($621 + $30,983), then his taxable income would be $44,270 for the year ending 30 June 2007.
If the post-accident gross earnings totalling $4,391.64 were deducted from that figure of $44,270 then the approximate gross amount earned to the time of the accident was $39,879. The figure of $39,879 then reflected Mr Howes' gross earnings for the 19 weeks period from 1 July 2006 to 13 November 2006. The figure of $39,879 would equate to around $2,098 gross per week.
I have made the following calculations based upon the tax scales agreed to and supplied by the parties.
After payment of income tax of $7,313 ($2850 + (($39,879 - $25,000) x 0.3)) plus the Medicare levy of $598 ($39,879 x 0.015) less the tax offsets and other credits ($703.60) Mr Howes' net income was $32,671 ($39,879 – ($7,313 + $598) + $703.60).
Person
Taxable income
Tax
Medicare
Credits
Net Income
Mr Howes
$31,604
Wife
$10,000
Son
$1,333
Son
$1,333
Less post-accident earnings
$4,391
Total
$39,879
$7,313
$598
$703.60
$32,671
When the net income figure of $32,671 was divided by the 19 weeks that Mr Howes actually worked pre-accident, then the net weekly figure would be $1,719. Accordingly, Mr Howes' earning capacity at the time of the accident was a net weekly amount of approximately $1,719 or $89,388 per annum.
Post-accident earnings
The calculation of Mr Howes' past loss of earnings would require the pre-accident earning capacity figure of $1,719 net per week or $89,388 per annum being setoff against the income actually earned by Mr Howes over the period since the accident.
The defendant's counsel submitted that it would be incorrect to use as an accurate indication of his earnings since the accident the figures shown in Mr Howes' tax returns for 2008, the beneficiary profit distribution summary for 2008, the Refund Notice for 2008, his tax returns for 2009, the beneficiary profit distribution summary for 2009, his tax return tax estimate for 2009, his tax returns for 2010, the beneficiary profit distribution summary for 2010 and his tax return tax estimate for 2010. The defendant's counsel contended that because Mr Howes gave evidence that he had claimed some expenses incurred in building his house as deductions against income in his tax returns for the purposes of tax that would artificially and improperly reduce his post accident income. The defendant's counsel submitted that that was apparent from a comparison of the rendered invoices and the general ledger with the expenses for the business.
I do not propose to embark upon that task. There had been no attempt by the defendant's counsel to quantify the amounts. There was no expert accounting evidence to say that such an offset was improper.
Mr Howes gave evidence that he was building the house to exhibit his skills with a view to attracting work and eventual sale for a profit. Mr Howes accepted in cross-examination that some materials claimed as expenses were used on the house. He explained that some sand, cement and other items may have been used for both house and business and then accounted for as a business expense. He also said it was possible that he bought materials and tools for the business at various times, even when he was not working. Mrs Howes confirmed Mr Howes' evidence when she was cross-examined.
I accept Mr Howes' evidence that receipts for house materials were kept separately. I accept his explanation: '(T)his is why I have a bookkeeper and an accountant to keep us legitimate'. I also accept Mr Howes’ counsel’s contention that while some house related expenses may have slipped into the business accounts Mr Howes, his wife, his bookkeeper and his accountant were all monitoring for proper expenses and there was no reason to believe that the accounts reflected anything other than a largely correct position.
Accordingly, in my calculation of the past loss of earnings I propose to rely upon Mr Howes' tax returns for 2008, the beneficiary profit distribution summary for 2008, the Refund Notice for 2008, his tax returns for 2009, the beneficiary profit distribution summary for 2009, his tax return tax estimate for 2009, his tax returns for 2010, the beneficiary profit distribution summary for 2010 and his tax return tax estimate for 2010.
The parties have agreed that the Insurance Commission of Western Australia had paid, on behalf of the defendant, a total of $74,793 in advance payments against Mr Howes' claim for past economic loss.
I have calculated Mr Howes' claim for past economic loss as follows:
Financial Year
Pre-Accident Net Weekly Earning Capacity
Post-Accident Weekly Income Received
Weekly Loss
Annual Loss
Less Advances Paid by Insurance Commission
Total Loss
2007
$1,719
$519
$1,200
$62,400
$3,000
$7,500
$9,750
$42,150
2008
$1,719
~$27
($1,433 taxable income)
$1,692
$87,984
$9,000
$78,984
2009
$1,719
Nil
($0 taxable income)
$1,719
$89,388
Nil
$89,388
2010
$1,719
~$16
($845 taxable income)
$1,703
$88,556
$10,000
$5,543
$73,013
2011
$1,719
Nil
$1,719
$89,388
$30,000
$59,388
Sub - Total
Plus 4 months from July 2011 to November 2011= $27,504
$342,923
$27,504
$370,427
Plus Interest
$370,427
x 0.03
x 5 years
$55,564
Total
$425,991
Accordingly, I award Mr Howes $425,991 for past economic loss.
Mr Howes' loss of future earning capacity
Mr Howes was now aged 49.5 years.
I accept that as a result of the accident Mr Howes was unable to work in his usual occupation as a builder and hands-on site supervisor or in any other capacity. I also accept that he would be unable to return to gainful employment for the balance of his working life to at least age 65, a period of 15.5 years. But for the accident he would be earning at least $1,719 net per week and undertaking a more supervisory role, with the passage of time, in his usual occupation as a builder and hands-on site supervisor.
Counsel for the parties have not submitted that I should reduce the award for loss of future earning capacity to take into account contingencies and I have not done so.
I have assessed Mr Howes' claim for loss of future earnings based on $1,719 net per week for the next 15.5 years. The 6% multiplier was 543. The calculation was as follows:
$1,719 x 543 = $933,417
Accordingly, I award Mr Howes $933,417 for loss of future earning capacity.
Mr Howes' past domestic assistance needs
Mr Howes' evidence was that he sometimes had trouble washing his hair and at the time of trial that was about twice per week. Mrs Howes' evidence was that apart from the times immediately after her husband had operations, she spent about one hour per day providing him with care. After the initial stages of care, she only had to assist him about 12 times in relation to his toileting. She said that she provided him with care up until two months prior to the trial when they decided to separate. She said he was able to hang out the laundry and do vacuuming. She had observed him in his garage whittling wood, rubbing down breadboards, making a table and making a cupboard.
Dr Flahive and Dr Hill gave evidence that their clinical examinations of Mr Howes' range of movement did not correlate with his complaints that he could not wash his back, wipe his backside, wash his hair and get out of a chair. Their evidence was consistent with my observations of Mr Howes in the surveillance footage of November 2010, May 2011 and July 2011.
In his medico-legal reports of 24 July 2008 and 16 March 2009 Dr Hill considered that Mr Howes did not require domestic assistance at that time. In his medico-legal report of 20 April 2010 Dr Hill considered that his residual disability had some effect on his domestic duties, however, 'he is able to manage reasonable activities of daily living'. In his evidence Mr Howes agreed he told Dr Hill in July 2008 that he was doing household chores and in April 2010 that he could do some vacuuming, hang out washing and shop with his wife, although he had to support himself on a shopping trolley.
In his medico-legal report of 20 May 2009 consultant neurosurgeon Dr Richard Vaughan reported a significant reduction in Mr Howes' household capacity but he had formed the view that Mr Howes did not require any domestic assistance at that time. In his report of 11 March 2010 Dr Holthouse considered that Mr Howes would be able to cope with normal activities of daily living and he did not think that he would need domestic assistance. In his report of 5 April 2011 Dr Holthouse indicated that he was able to cope with activities of daily living at that time.
I accept the defendant's counsel's submission that the weight of the evidence indicated that apart from periods immediately after surgery, and in particular the period after his initial discharge from hospital after the accident, Mr Howes had required limited domestic assistance. I also accept Mrs Howes' evidence that she had provided her husband with ongoing assistance of about one hour per day until two months prior to the trial when they decided to separate.
In their written closing submissions the parties agreed that for the period immediately after the accident, Mr Howes would have required at least 40 hours per week of gratuitous assistance from his wife and family for 13 weeks from 17 November 2006.
In accordance with section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 a limit of 40 hours per week was proscribed, and the parties agreed to a rate of $20 per hour for past gratuitous assistance.
The parties also agreed that the past domestic assistance needs would be calculated as follows:
(a)Rate of $20 per hour
(b)Seven hours of care per week for 247 weeks (since the accident); plus
(c)Three months in total of care in excess of 40 hours per week
$20 x 7 x 247 = $34, 580
$20 x 40 x 13 (weeks) = $10,400
Total = $44,980
Interest: $44,980 x 5 x 0.03 = $ 6,747
Accordingly, I award Mr Howes $51,727 for past domestic assistance needs.
Mr Howes' future domestic assistance needs
Dr Jarrett was the only medical practitioner who gave evidence that Mr Howes would require four hours of care per week for the next 25 years. He said that was unlikely to change. If Mr Howes required further surgery, Dr Jarrett said he would require three hours a day for the first two weeks. He would then require eight hours per week for another couple of weeks and thereafter back to four hours per week.
The physiotherapist, Ms Tanya Kelly also said Mr Howes would require domestic assistance for four hours per week for 25 years and personal care assistance for five hours per week for 25 years. She agreed there was no input by an occupational therapist during her assessment of Mr Howes in 2010.
As I have previously observed, activities that Mr Howes said he could not carry out or he encountered difficulty with, such as lifting up his arms to wash his hair, turning his back sufficiently to perform normal toileting functions, driving, difficulty getting in and out of a vehicle, moving his right hand and wrist, and lifting anything of significance, appeared to be contradicted by the surveillance footage.
The weight of the evidence indicated that apart from periods immediately after surgery, and in particular the period after his initial discharge from hospital after the accident, Mr Howes had required limited domestic assistance. I am not persuaded that he would require domestic assistance for four hours per week for the next 25 years and personal care assistance for five hours per week for the next 25 years.
I accept the defendant's counsel's submission that Mr Howes would not require more than four hours of assistance per week in the future. I am also persuaded by the defendant's counsel's submission that after 24 months and undergoing a pain management program as recommended by both Dr Flahive and Dr Holthouse, there would be some improvement in his pain and function and Mr Howes would not require the level of care that he had required in the past.
The parties agreed a commercial rate of $43.50 per hour for future domestic assistance needs.
I have calculated the future domestic assistance needs as follows:
$43.50 x 4= $174 per week
$174 x 52 x 2 = $18,096
Accordingly, I award Mr Howes $18,096 for future domestic assistance needs.
Mr Howes' past medical treatment expenses
Mr Howes claimed payment for the treatment and medication expenses as follows:
(a)Dr Woodall $1,225.00
(b)Dr Holthouse $ 154.00
(c)Nightingales Pharmacy, Baldivis $2,125.60
(d)Nightingale Pharmacy $2,931.70
(e)SKG Radiology $ 134.75
The parties have agreed the expenses.
Accordingly, I award Mr Howes $6,571 for past medical treatment expenses.
Mr Howes' future medical treatment needs and expenses
Medication
Mr Howes had claimed the weekly cost of Oxycontin, Oxynorm, Duloxetine and Agomelatine for the remainder of his life.
Dr Holthouse gave evidence that Mr Howes was 'on a higher dose of narcotics than (he) would like' and 'the biggest thing I've faced with this chap, is trying to get his pain under control so I'm in a position to wean off the narcotics'. Dr Holthouse went on to say:
I suspect this chap will end up on 64 milligrams of Jurnista long-term. That's what I suspect he'll end up on. I suspect we might be able to get him down to 32, but I don't envisage that we'll get him too much lower than that, to tell you the truth. I think he'll always need some background narcotic, unfortunately, and some patients are just like that. It's very hard for you to maintain function and completely get them off the narcotic.
However, Dr Flahive and Dr Holthouse gave evidence, which they expressed in strong terms that Mr Howes would not remain on the narcotics that he was taking at the time of the trial. The treatment goal was to implement a pain management programme which would see him cease his consumption of Oxycontin and Oxynorm altogether, or at least change his medication regime which would improve the prospects of his lowering his dose of medication. According to Dr Flahive lifelong use of narcotics was not an option.
Dr Woodall and Dr Tannenbaum gave evidence Mr Howes would require the anti-depressant medication Duloextine and Agomelatine for at least two years and quite possibly for life. Dr Tannenbaum also gave evidence that with the level of pain that he was experiencing; all anti‑depressant medications would progressively fail.
Having regard to the strong views expressed by Dr Flahive and Dr Holthouse about the narcotic medications and the treatment goal to implement a pain management programme and the evidence of Dr Woodall and Dr Tannenbaum that Mr Howes would require the anti‑depressant medication for at least two years I am not satisfied that it was more likely than not that Mr Howes would require lifelong narcotic and anti-depressant medications and the evidence was merely that it was a possibility.
I also accept the defendant's counsel's submission that if Mr Howes managed his pain more effectively in the future, his depressive symptoms would resolve, or at least improve. Dr Flahive gave evidence that a side effect of long term narcotic use was depression. Dr Woodall said narcotics 'do not depress mood per se. However, they in high doses can lead to an individual having less energy, having some difficulty motivating themselves, all features which can occur as part of a depressive syndrome'.
In the circumstances, I am satisfied that Mr Howes would require narcotic medications and anti-depressant medications for three years.
The parties agreed the weekly cost of Oxycontin and Oxynorm was $2.10 and the weekly cost of Duloextine and Agomelatine was $36.00.
I have calculated the cost of narcotic medications and anti-depressant medications as follows:
Item
Cost
Weekly cost
Duration required
Multiplier
Total
Oxycontin
Oxynorm
$5.60
$5.60
$2.10
36 months
143.6
$301
Duloxetine
Agomelatine
$5.60
$138.40
$36
36 months
143.6
$5,169
GP review
Mr Howes claimed the cost of review by a general practitioner every month for the remainder of his life.
The defendant's counsel contended he only required four visits each year for the remainder of his life and I consider that to be reasonable in the circumstances.
The parties agreed the cost of a monthly consultation with a general practitioner at $53 per consultation.
I have calculated the cost of review by a general practitioner as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$53
$4.08
4 x per year for life
787.2
$3,211
Psychiatric review
Mr Howes claimed the cost of review by a psychiatrist five times a year for the remainder of his life.
Mr Howes' treating psychiatrist Dr Woodall said that he would require review with a psychiatrist between four and six times per year for the next two years and most likely indefinitely.
Dr Woodall and Dr Tannenbaum were of the opinion that the marriage breakdown would increase the need for more regular supportive psychotherapy or consultations with his psychiatrist or from a medical practitioner with skills in mental health care.
I am unable to accept the defendant's counsel's submission that Mr Howes would not require psychiatric review for more than two years into the future on the basis that with adequate pain management, his depressive symptoms would resolve, or at least improve. I am satisfied by Dr Woodall's and Dr Tannenbaum's evidence that Mr Howes would require psychiatric review for at least four times a year for the next two to three years and possibly beyond that time.
The parties agreed the cost of a review by a psychiatrist at $220 per review.
I have calculated the cost of review by a psychiatrist as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$220
$16.92
4 x per year for 3 years
143.6
$2,429
Psychological counselling
Mr Howes claimed the cost of review by a clinical psychologist on a fortnightly basis for 12 to 18 months.
Dr Woodall said he would require treatment with a clinical psychologist one hour per fortnight for 12 to 18 months.
The defendant's counsel submitted Mr Howes would not require psychological counselling for more than two years.
The parties agreed the cost of a review by a clinical psychologist at $212 per review.
I have calculated the cost of review by a clinical psychologist as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$212
$106
1 x per fortnight for 18 months
$7,632
Neurosurgeon review
Mr Howes claimed the cost of review by a neurosurgeon each year for the remainder of his life.
The defendant's counsel did not contest the need for the review.
The parties agreed the cost of a review by a neurosurgeon at $150 per review.
I have calculated the cost of review by a neurosurgeon as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$150
$2.88
1 x per year for life
787.2
$2,267
Spinal stimulator
Mr Howes claimed 'the cost of revision of the (spinal) stimulator plus additional wires added in, in order to expand the range of the stimulator at a cost of $15,000'.
Mr Howes also claimed 'that during his lifetime he (would) need the implantable pulse generator changed at a cost of $60,000.00 for two batteries. A pulse generator's life is generally about 10 years. Based on his life expectancy of 32 years, he (would) require his implantable pulse generator changed twice'.
The defendant's counsel submitted that Mr Howes would not require any of the expenses associated with the spinal stimulator.
Dr Holthouse gave evidence that indicated there was only a possibility not a likelihood there would be further expenses associated with the spinal stimulator and that would depend upon benefit Mr Howes got from it or the need for further surgery: '… we may need to reposition leads. If he was to have a problem with the leads or someone else does surgery and cuts a lead, I mean, you might need to revise the stimulator. So what I'm saying is over the course of his lifetime, if the stimulator's functional, he'll probably need something done. Now, similarly, if it becomes the fact that stimulation is completely inappropriate, I would turn around and remove the system. I mean, the cervical system I wouldn't remove because he does get a lot of benefit from it, but the lower back system, if I could not get an epidural one to work within a couple of years, I would probably just completely discard it and you would just have to go with conservative measures.' He went on to say 'I guess the question is, if the cervical one is working and we the - we don't ever get the lumbar one working, so if we put the epidural one in, we could use the existing lumbar one, okay, but if that didn't work, I mean you know, I – you wouldn't obviously replace the one that's not functional. The one that's functional, I mean, the duration that they last is around - I mean, the company tells us about 10 years, but they can be sometimes longer than 10 years … I would say probably - I would say at least twice in his lifetime, provided he still gets benefit from it.'
I am not persuaded on the basis of Dr Holthouse's evidence that there would be a need for further expenses associated with the spinal stimulator.
Fusion procedure
Mr Howes claimed 'an allowance for the possibility of a fusion which would cost between $40-50,000 as a 10% chance, $5,000.00'.
Dr Holthouse gave evidence that he was not supportive of a fusion procedure for Mr Howes. He also did not support further injections as he was unable to find any definable target for the injections.
Accordingly I decline to make an award for the claim for a fusion procedure.
Gym membership
Mr Howes claimed the cost of a gym membership at $962 per annum for 20 years.
The defendant's counsel agreed to that expense.
I have calculated the cost of gym membership as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$962
$18.50
20 years
616.3
$11,401
Physiotherapy
Mr Howes claimed the cost of two hours of physiotherapy once a fortnight for the next five years at $75 per week.
Ms Kelly gave evidence that Mr Howes would require physiotherapy once a week for two years.
The defendant's counsel agreed to that expense for a period of three years and which I considered reasonable in the circumstances.
I have calculated the cost of physiotherapy as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$75
$75
1 x per week for 3 years
143.6
$10,770
Occupational therapy
Mr Howes claimed the cost of occupational therapy once a week for the next three months at $75 (per session).
Ms Kelly gave evidence that Mr Howes would require occupational therapy once a month for two years.
The defendant's counsel agreed to the need for that expense for a period of two years.
I have calculated the cost of occupational therapy as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$75
$17.30
1 x per month for 2 years
98.5
$1,704
Exercise rehabilitation
Mr Howes claimed the cost of exercise rehabilitation once every three months for two years at $264 per session.
Ms Kelly gave evidence that Mr Howes would require exercise rehabilitation for two years.
The defendant's counsel agreed to the need for that expense for a period of two years.
I have calculated the cost of exercise rehabilitation as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$264
$20.30
4 x per year for 2
98.5
$1,999
Pain management
Mr Howes claimed an allowance for a pain management program at a cost of $6000.
The defendant's counsel agreed to the need for that expense.
I award Mr Howes $6000 for a pain management program.
Pain specialist review
Mr Howes claimed 'the cost of attending upon (a pain) specialist for review twice yearly at $200 for each review' but his counsel did not address the issue in his written closing submissions.
The defendant's counsel agreed to the need for the expense of review by a pain specialist at a cost of $150 once a year for the remainder of Mr Howes' life and I consider that to be reasonable in the circumstances.
I have calculated the cost of review by a pain specialist as follows:
Cost
Weekly cost
Duration required
Multiplier
Total
$200
$3.84
1 x per year for life
787.2
$3,022
Imaging and investigations
Mr Howes claimed the cost of further imaging and investigations at a cost of $3,000.00 over the next five years.
Although the defendant's counsel agreed the expense he did not address the need in his closing written submissions.
In his report of 29 November 2010 Dr Holthouse said he had ordered investigations for Mr Howes but he 'may need further investigations down the track and these also may cost over the next five years about $2,000 or $3,000'. The matter was not taken further in evidence.
I decline to make an award for the cost of further imaging and investigations as on the face of his report Dr Holthouse had merely expressed the need as a possibility not likelihood.
Sleeping medication
Mr Howes claimed an allowance of $2000 for sleeping medication.
In his report of 4 May 2011 Dr Woodall noted that Mr Howes had commenced a trial of Agomelatine 'a new class of antidepressant that effectively improves sleep pattern'. He goes on to state 'with improvement in his sleep pattern Mr Howes has been able to discontinue regular use of Zolpidem (hypnotic)'. In his evidence Dr Woodall said at the time of his report Mr Howes did not require hypnotics for sleep. At some stage in the future he may require hypnotics for sleep and if so it would be a matter of trialling them because of adverse effects.
I decline to make an award for the cost for sleeping medication as Dr Woodall had merely expressed the need as a possibility not likelihood. Further, I have already awarded Mr Howes the cost of Agomelatine which, according to the medical evidence, would improve his sleep pattern.
Supportive chair, wheelchair and supportive footwear
Mr Howes claimed the cost of a supportive chair for home use at $2,800 every five years for the next 25 years. He claimed the cost of supportive footwear at $280 per annum for the next 25 years. He appeared to have abandoned his claim for the cost of a wheelchair.
The defendant's counsel did not agree with the need for the items.
Ms Kelly's evidence concerning the need for the items was not supported by Dr Holthouse's report of 5 April 2011 and his evidence. Dr Holthouse said in his report that the items 'may possibly be of benefit for' Mr Howes but he went on to say that a wheelchair should be avoided because Mr Howes could walk a distance. He said in his report that good footwear was vital but he said nothing about supportive footwear or orthoses.
I decline to make an award for the cost of a supportive chair, a wheelchair and supportive footwear as Dr Holthouse had merely expressed the need as a possibility not likelihood.
Treadmill, recumbent exercise bike, free weights and fit ball
Mr Howes claimed the cost of a treadmill for home use at $2,000 every five years for the next 20 years. He claimed the cost of a recumbent exercise bike for home use at $500 every five years for the next 20 years. He claimed the cost of free weights for home use at the cost of $50. He claimed the cost of a fit ball for home use at $40 every two years for the next 20 years.
The defendant's counsel did not agree with the need for the items. The defendant submitted that for his rehabilitation Mr Howes would not require gym equipment at home in addition to a gym membership.
Mr Damian Amsuss, an exercise physiologist, gave evidence that Mr Howes would benefit from a structured exercise program: 'I think it's important for Mr Howes to have access to equipment that allows him to place resistance or labile surfaces into his program. So to answer your question, he could complete either. If he attended a gym, he would have access to all that equipment to help him get back to whatever he needs to get back to at home and also, hopefully, into the workforce as well. If he had a home based program, it would be ideal for him to have access to a fit ball, possibly some aerobic equipment, some dumbbells, for example. Those sorts of equipment can help him to - to complete a home program without needing to attend a gym.'
I decline to make an award for the cost of a treadmill, a recumbent exercise bike, free weights and a fit ball for a home based gym program. Mr Asmuss' evidence was that Mr Howes would benefit from a gym based or a home based structured exercise program and I have already made an award for gym membership.
Left side (forearm/wrist) treatment plate removal
Mr Howes claimed an allowance of $10,000 for left side (forearm/wrist) treatment plate removal.
In his report of 24 June 2011 Dr Jarrett said further treatment was planned for Mr Howes' left side. There would be surgery for plate removal, denervation of his wrist, removal of the ulnar bone fragment and if required intersection release. In his evidence Dr Jarrett said Mr Howes had been placed on a hospital waiting list. He said the cost of the surgery was $10,000 and there would be a modest benefit to Mr Howes from the surgery.
The defendant's counsel did not agree to the need for the expense. He pointed out that Dr Jarrett's evidence was that the functional benefit of further surgery to Mr Howes' left wrist would be fairly mild. In his report of 20 April 2011 Dr Hill said he was 'not convinced surgical removal of the plate and screws from his left forearm would be beneficial and it is doubtful that his symptoms in regard to his left wrist would warrant further surgery'.
Having regard to Dr Jarrett's evidence I award Mr Howes $10,000 for the cost of the surgery for left side (forearm/wrist) treatment and plate removal.
Accordingly, I award Mr Howes a total of $65,905 for future medical treatment.
General damages
Non-pecuniary loss in this case must be assessed according to section 3C of the Act.
Non –pecuniary loss has been defined in the Act as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
Section 3C(2) provides that the amount of damages to be awarded for non-pecuniary loss was to be a proportion determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. The maximum amount at the present time is $350,000.
While section 3C provides for the application for an excess (section 3C(5)), by virtue of the application of section 3C(6), that excess ceases to apply when the award for damages for non-pecuniary loss was calculated based on a percentage of a most extreme case of 21.5% or greater.
The defendant's counsel conceded in his closing submissions that the award of damages for non-pecuniary loss should not be a figure lower than 21.5% and therefore it was not necessary to apply an excess.
The award of damages for non-pecuniary loss should be assessed as a percentage of $350,000 where that sum represents an award that would be made in a most extreme case.
The approach and methodology to be applied was described in Southgate v Waterford (1990) 21 NSWLR 427, 440 ‑ 442.
When Mr Howes' physical and mental injuries and associated symptoms, as I have found them to be, were compared with what may be regarded as a most extreme case, it seems clear that his initial injuries and symptoms, their progression and treatment, pain suffered, residual disabilities and the effect upon his enjoyment of life place his case at 35% of a most extreme case. I have calculated non-pecuniary loss in the amount of $122,500.
Damages assessment
Past economic loss $425,991
Loss of future earning capacity $933,417
Past domestic assistance needs $51,727
Future domestic assistance needs $18,096
Past medical treatment expenses $6,571
Future medical treatment needs and expenses $65,905
Non-pecuniary loss $122,500
Total$1,624,207
I would therefore award damages in the sum of $1,624,207.
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