Ian Douglas Cocks v Blacktown City Council and the State of New South Wales
[2012] NSWDC 189
•27 August 2012
District Court
New South Wales
Medium Neutral Citation: Ian Douglas Cocks v Blacktown City Council and the State of New South Wales [2012] NSWDC 189 Hearing dates: 30, 31 July 2012; 1, 2 August 2012 Decision date: 27 August 2012 Before: MJ Finnane QC DCJ Decision: See para [68]
Catchwords: Civil - personal injuries - foreseeability - negligence - contributory negligence - occupiers' liability - workers compensation
Meaning of "worker" - employment relationship - whether plaintiff "employee" or "independent contractor" - courier - employment contract
Damages - economic loss - vicissitudesLegislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987Cases Cited: Vabu v Federal Commissioner of Taxation (1996 New South Wales Court of Appeal unreported), 33 ATR 537
Hollis v Vabu (2001) 207 CLR 21Category: Procedural and other rulings Parties: Ian Douglas Cocks (Plaintiff)
Blacktown City Council (First Defendant)
State of New South Wales (Second Defendant)Representation: Ms E Welsh (Plaintiff)
Mr G Gemmell (First and Second Defendants)
GILD Insurance Litigation P/L (First and Second Defendants)
Brydens Compensation Lawyers (Plaintiff)
File Number(s): 2010/00363303
Judgment
Introduction
The Rural Fire Service is a well-known organisation in the State of New South Wales. It is responsible amongst other things for dealing with fires in rural areas.
The Blacktown City Council owned premises in 2009 at 12 Florence Street Oakhurst and these premises contained a number of large storage sheds as well as an office building at the front of the premises. The Rural Fire Service leased these premises and was at all material times the occupier of the premises.
On 3 November 2009 the plaintiff, who was the driver of a delivery van, was injured at those premises whilst he was unloading a bundle of star pickets. The plaintiff's claim is that the defendants were the cause of the accident and were liable to him in negligence.
The plaintiff pleaded his cause of action by claiming that on the day concerned in the course of his work for Allied Express Transport and as a courier he was engaged in delivering certain goods to the premises of the defendants. The defendants did not admit the truth of this claim, although the evidence made it perfectly clear that the plaintiff was at the premises in this role on the day concerned.
The plaintiff also claimed that there was on the premises a fire hose that had been left lying on the floor of the premises in close proximity to a small hump in the concrete floor and that the presence of the fire hose was obscured by the hump. Both defendants deny these allegations.
It was further alleged that while the plaintiff was attempting to make the delivery, he tripped over the fire hose and/or hump. Both defendants denied this allegation. In addition, the first defendant denied that it had a duty of care to the plaintiff. Both defendants claimed the benefit of sections 5B, 5D, 5F and 5H of the Civil Liability Act 2002.
Finally, the defendants allege contributory negligence on the part of the plaintiff. They claim that he is an employee of Allied Express Transport and accordingly section 151Z of the Workers Compensation Act applied so that any award of damages to the plaintiff would be reduced in accordance with that section.
The plaintiff's claim is that at all material times he was an independent contractor and not an employee. Before turning to the legal tests that govern these matters, it is important that I should determine what happened on the day of the accident and where different versions are given I should determine which version I accept.
On the day of the accident, the plaintiff was a van driver working for a company known as Allied Couriers. He owned the van and was paid a commission for each item that he delivered. His employer supplied a radio which was installed in the van.
On the day of the accident he was doing what was called a "run" and had commenced to load the vehicle with goods earlier in the morning with a view to delivering these goods at different destinations. One of the places to which he was to deliver goods was the Rural Fire Service temporary station at 12 Florence Street Oakhurst. His evidence was that when he arrived at these premises, he parked his van near an office building that had a stair to another level. He went up this stair and enquired of somebody inside the office as to where he should go to deliver the goods. A person inside the office directed him to go to a storage shed where the goods would be unloaded.
According to him, he had made a delivery to these premises on one earlier occasion only and on that occasion the goods had been taken from the back of his van at a place near the entrance to the premises. He claimed that no earlier occasion had he gone to the storage shed to which he was directed on this day. He was contradicted about this in evidence given by two Rural Fire Service officers. For reasons that I will later give, I believe the plaintiff and where he differs in his evidence from the evidence given by the Rural Fire Service officers, I prefer his evidence. In my judgment he is an honest man who gave careful and reliable evidence and is someone whose evidence I accept as being both true and reliable.
According to the plaintiff, he then went in his vehicle to this storage shed. It was early in the morning, between 7 AM and 8 AM. There was daylight but I accept that to some extent there was shade around the entrance to this shed. It could not be said to be in darkness.
The shed was a fairly large storage shed with a roller door covering its entrance. When the roller door was pushed upwards entrance could be gained to it. What was unusual was that when the roller door was open, rather than the ground into the shed being exactly level with the ground outside the shed, there was at the entrance a concrete barrier shaped like a speed hump and immediately behind the concrete barrier there was a large fire hose which evidence suggests had sand in it.
Evidence was given that the concrete and the fire hose were put in position to prevent water coming into the shed if there was heavy rain. This was done before the Rural Fire Service had taken occupation of the premises. It is obvious, in my opinion, that the speed hump and the fire hose together and separately were hazardous to anybody walking into the shed. A photograph taken by the plaintiff some months after the accident shows yellow stripes across the top of the speed hump, but whether these markings were there on the day and whether they were clear to any onlooker is not something about which I am confident.
The evidence is also clear that nobody working for the Rural Fire Service gave any warning to the plaintiff about the presence of the speed hump or the fire hose.
Facts
The plaintiff is a 64-year-old man who is married to a wife who unfortunately is seriously crippled with arthritis. He is an active man who on 3 November 2009 was working as a contract driver with Allied Express Transport, a trucking company. He owned a van and Allied paid for a radio to be installed in his van. The contract provided that he would be paid a commission for each parcel that he delivered. After a period of working during which he delivered parcels in this way, he was given a run. This meant that on particular days he would deliver those parcels coming from one company to a series of customers of that company.
On 3 November 2009 he was doing a run for a company known as Baker's. He went to premises at Blacktown, arriving there at about 5:30 AM and loaded his vehicle with all the parcels that he had to deliver that day for Bakers. That meant that he had to deliver some parcels to the Rural Fire Service premises at 12 Florence Street Oakhurst. These premises were leased from Blacktown City Council, the first defendant in these proceedings. The Rural Fire Service was the sole occupant of the premises on 3 November 2009.
He loaded the vehicle himself and because the Rural Fire Service premises was to be the first stop on his run, he placed the goods for the Rural Fire Service at the back of the vehicle. The first dispute in the proceedings concerned what happened when the plaintiff arrived in his van at the Rural Fire Service premises. According to him, he had delivered the goods to those premises during the week before and on that occasion he had stopped his vehicle in the forecourt, near an office building. He had gone to the office and the goods he was delivering were taken from the back of the van in the forecourt. He did not take the van on this occasion anywhere else in the premises.
The plaintiff claimed that when he attended the premises on 3 November 2009 again he parked his vehicle in the forecourt and sought instructions about where he should take the goods. He was then directed to drive his van to the shed at which he was injured. He followed those directions and drove the van to this shed where he reversed it and opened the back door of the van.
The Rural Fire Service called two witnesses, Mr Brett Wallace and Mr Stephen Rothwell. Both of these witnesses were officers of the Rural Fire Service and both of them claimed that the plaintiff drove his vehicle into the premises and directly to the shed in question. Mr Rothwell claimed that he was standing on the veranda of the office premises and the plaintiff did not stop at the office at all. Both these witnesses claimed that the plaintiff had made deliveries to the premises on earlier occasions and had always made them to the shed at which he was injured on 3 November 2009.
The second dispute in the evidence concerned what happened when the plaintiff commenced to take the goods out of the back of the vehicle. He gave evidence that he handed the goods to a number of men at the back of his van and they went into the shed. He denied that he had gone into the shed at any time. Mr Wallace and Mr Rothwell both claimed that the plaintiff carried out the unloading job by handing items to each of them and to two other Rural Fire Service employees. They also claimed that the plaintiff took some items himself into the shed. This was something that the plaintiff denied doing.
The third dispute in the evidence concerned the accident itself. The plaintiff claimed that the last item was a bunch of star pickets that were lying under some other items that were loosely on top of them, a practice that he said was his usual practice with those items. There were 10 items in the bundle which had a handle on it so that he could drag the bundle. He lifted up the bundle slightly to loosen it, started to drag it back and was stepping back at the same time. He dragged his right foot backwards and caught his heel on something then hit the floor on his right hip and struck his head on the bumper bar of a fire engine. He was dazed slightly and when he looked up he saw a kink in a red fire hose and a raised concrete area in front of the fire hose. The concrete appeared to be the same colour as other concrete in the shed. At the time he fell on the ground the plaintiff believed he had tripped on the fire hose but he conceded that he may have tripped on the concrete.
Mr Wallace gave evidence that the plaintiff stumbled backwards because as he pulled the star pickets, they suddenly gave way and he fell backwards. According to him, the star pickets were under other parcels that were fouling them. Mr Wallace was actually inside the shed at the time the plaintiff fell on the ground. He claimed that the plaintiff tripped on the bund under the inertia of the load moving suddenly. He conceded in cross examination that he was not looking at the feet of the plaintiff at the time that the plaintiff fell on the ground.
Mr Rothwell claimed that the plaintiff was proceeding to pull the star pickets and gave "an almighty pull", the star pickets came out more quickly than he had anticipated and it launched him backwards.
All 3 witnesses gave their evidence in a forthright manner and all of them appeared to be telling the truth as they saw it. I found the plaintiff be an impressive witness who was prepared to give evidence that was at times against his own interest. He did not exaggerate at any time and I thought him to be an honest witness. He also had a very good work history, both before and after this accident. Amongst other things, he revealed that he had broken a leg in previous employment, but had continued to work. He also gave evidence that although he could not go back to van driving after this accident, he returned to work, first as a pizza delivery driver and then as a dough maker for Pizza Hut. He made an impression on me as being a man who was determined to get on with life. He gave evidence in a forthright fashion. I believed his evidence.
I accept that this was only the second time he had been to these premises and that this was the first time he had unloaded goods at this shed. I am sure that Mr Wallace and Mr Rothwell believe the evidence they gave, but I am of the opinion that they were mistaken in their evidence. Mr Wallace agreed that no investigation was made by the Rural Fire Service into this accident and it seems clear that neither he nor Mr Rothwell made any report of it to the Rural Fire Service. Each of them made a statement some time after the accident to someone retained by one or other of the defendants.
There can be no doubt that the plaintiff moved backwards while lifting and pulling out a bundle of star pickets and all witnesses agree that he tripped on the bund or on the fire hose. On the plaintiff's version, he was moving backwards when his right foot caught something. I see no reason to doubt him when he says that he saw a kink in the fire hose after he fell on the ground and in my opinion the evidence justifies the finding that his right foot caught on the fire hose and this caused his fall. I do not accept that he was launched backwards, but rather that as he walked backwards his right foot caught on the fire hose, something that he could not have thought would be there or on the concrete bund and then the fire hose. Again, it is clear to me that he had no reason to believe either of them was present.
The position of the fire hose, behind the concrete hump was such that it was dangerous and a hazard to any person entering the shed. It was the last type of object that any person entering the shed could reasonably expect to be there. In the absence of any evidence from Mr Wallace or Mr Roswell that either of them or someone else had given a warning about the presence of the fire hose, I draw the conclusion that no warning was given to the plaintiff at any time. For these reasons I am of the opinion that the plaintiff has made up his case in negligence against the Rural Fire Service.
I might also add that the plaintiff claimed to strike his head on the bumper bar of a fire engine. Mr Wallace and Mr Rothwell were adamant that no fire engine was ever in the shed. However, Mr Rothwell gave evidence that two other smaller vehicles were at times in the shed and in my opinion, the evidence entitles me to conclude on a balance of probabilities that the plaintiff's head struck one of these vehicles. Of course, it may be that as he was dazed after his fall, he wrongly believed he had struck his head on a vehicle when in fact he struck it on something else.
The second defendant claimed that the plaintiff was guilty of contributory negligence and I am also of the opinion that this was so. The plaintiff chose to walk backwards whilst lifting and pulling the star pickets. To move backwards whilst lifting and pulling the star pickets instead of lifting them up and then walking forwards, in my opinion shows that he was not as careful for his own safety as he could have been. I assess his degree of contributory negligence at 20%.
The other issue on liability concerns the applicability of section 151Z (2) of the Workers Compensation Act 1987. That section is in the following terms:
"151Z Recovery against both employer and stranger
(2) If, in respect of an injury to a worker for which compensation is payable under this Act:
(a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and
(b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,
the following provisions have effect:
(c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,
(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,
(e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that:
(i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise-the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and
(ii) if the compensation paid by that employer does not exceed the amount of that contribution-subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.
(3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury."
The first question to be determined is whether the plaintiff was within the meaning of the Workplace Injury Management Act, 1998 a "worker." Section 4 of that act provides:
" worker means a person who has entered into or works under a contract of Service... with an employer..."'
The question of whether a person is an employee or an independent contractor can be a matter of considerable difficulty. The plaintiff gave evidence that he owned a small van and sought a contract with Allied Express Transport Proprietary Ltd and entered into a written contract with that company on 12 November 2008. The contract (Exhibit 2) is a 19 page document with 5 pages of annexures. The terms of this contract were provided by Allied to the plaintiff. Paragraph 8 of the contract provides as follows:
"8.1.1 the parties agree and acknowledge that the contract carrier is an independent contractor. Except to the extent authorised by Allied in writing, the contract carrier shall not be or represent him/herself as being an agent or employee of Allied nor shall he/she" at any time bind or purport to bind allied to any agreement or transaction nor pledge the credit of Allied in any manner whatsoever nor shall permit the creation of any lien over any property of Allied which might be in his possession or under his/her control."
Apart from these provisions, the contractor/ plaintiff was required to buy a motor vehicle owned by him, operated by him and approved of by Allied. Allied could require that the contractor should wear a uniform to be provided by Allied but to be maintained and laundered by the contractor (paragraph 2) he was required to wear black pants supplied by him.
Paragraph 3 required him to provide services as directed by Allied and carry such goods as Allied might direct, to be available all reasonable times to perform contracts of carriage, to carry such goods at such times and in such places as Allied might direct, to observe reasonable and lawful requests made by Allied including a request to be of neat and clean appearance.
He was also required to pay all the statutory costs and fees for the vehicle used by him and to keep it in a mechanically sound, roadworthy and clean condition, to provide Allied annually on renewal a copy of the duly completed certificate of registration and third-party insurance, to keep the vehicle adequately equipped for safe conduct of the contract of carriage normally undertaken by him, to be responsible for equipment and gear safe loading and unloading of the vehicle, to provide weather protection of the load and be present to load and unload the vehicle. In the case of preloaded vehicles he was responsible for checking the load for safety and satisfactory methods of loading. He was also required to have a current drivers licence and to notify Allied if his licence was suspended, cancelled or demerit points were issued.
He was also obliged to carry out work during the day and not to cease work without notifying Allied, and to provide the vehicle once every 3 months for inspection visually by an Allied representative. He was obliged to keep current all relevant licences permit or registration and to ensure that his vehicle complied with all statutory requirements. Allied was not liable for any breaches by the contractor of any regulation etc.
He was also required to hand in freight notes, run sheets and other documents by the close of the next normal working day; otherwise he would not be paid. He was also required to prove that delivery had taken place by handing over a delivery receipt. He had to display on his vehicle, any sign or equipment supplied by Allied. He gave evidence that he did attach an Allied sign to his vehicle. Clause 3.26 specifically provided that he might accept a contract of carriage for the performance of a set run. In fact on the day the accident he was performing a set run.
Clause 4 provided for rates of pay as fixed under certain transport industry determinations. These determinations were made by the Industrial Relations Commission of New South Wales. They are annexed to this judgment. They make provision for payments, on a piece basis and an hourly basis. It is quite clear that remuneration depended upon the number of parcels delivered and/or the time taken for delivery.
Provision was also made for the fitting of a radio communication system into the vehicle at the expense of Allied which also had the responsibility for maintaining that equipment.
The plaintiff was required to obtain and maintain policies of insurance that indemnified Allied against liability for loss or damage arising from any neglect or default on his part and a personal accident and sickness policy. He was also required to maintain a public liability policy in the sum of $10 million, a motor vehicle comprehensive insurance policy in the sum of $5 million and a workers compensation policy to cover himself. He was subject to an annual health assessment. He also agreed to a restraint of trade clause. Other obligations were imposed upon him in the annexures to the contract.
The terms of this contract make it clear, in my opinion that whilst that the plaintiff was subject to some measure of control by Allied in that it specified what he should deliver and to whom, he was not paid a wage or salary but a commission for what he did and it was up to him to load the vehicle and to unload the vehicle. Further, he had to incur considerable expense in purchasing and maintaining an appropriate vehicle and of obtaining insurances of various types. The agreement itself specifically provided that he was an independent contractor.
The facts were very similar to those in the case of Vabu v Federal Commissioner of Taxation (1996 New South Wales Court of Appeal unreported, 33 ATR 537). In that case, the Court of Appeal considered whether couriers working for Vabu were employees or independent contractors.
In that case each of them owned his own motor vehicle and each of them incurred considerable expense maintaining the vehicle and running a business. They had to pay for the maintenance costs of the vehicle, as well as registration and insurance costs and petrol. They received no wage or salary but a commission only. The Court of Appeal concluded that they were independent contractors and not employees
This case was the subject of an application for leave to appeal to the High Court of Australia but leave was refused. (See Hollis v Vabu (2001) 207 CLR 21 at para 70 per McHugh J).
In Hollis v Vabu, the High Court considered the question whether a bicycle courier was an employee or an independent contractor and concluded that he was an employee. In that case it was apparent that the bicycle courier did not incur any significant expense in providing anything for his work and the question of employment was quite clear cut. This is a different situation and in my opinion the reasoning in Vabu v Federal Commissioner of Taxation is apposite.
As the plaintiff was not an employee, and was not a worker within the meaning of the Workers Compensation legislation, section 151Z of the Workers Compensation Act, 1987 has no application and I reject this defence.
The defendants also pleaded sections 5B, 5D, 5F and 5H of the Civil Liability Act, 2002 as defences to the claims of the plaintiff and say that they defeat all claims of the plaintiff. I do not agree.
In my opinion, it was clearly foreseeable that there was a risk to any person entering this shed that he might trip and fall on the concrete hump and the fire hose placed immediately behind it. Indeed it is hard to imagine a more inappropriate place to put such objects. Certainly a person exercising reasonable care for his own safety would not expect to encounter such obstructions at the entrance to a shed. At the very least, some warning should have been given to the plaintiff about their being there. In my opinion, a reasonable person in the place of the defendants would have taken steps to give this warning. None was given.
It is also clear to me that there was a probability someone in the position of the plaintiff would be injured if no warning were given.
Of course, other steps could have been taken relatively easily. For example, the hump could have been removed altogether and certainly the fire hose could have been removed easily before any work of loading or unloading into the shed was undertaken on this day.
I also reject the claim of the defendant that the risk was obvious in the sense that this term is defined in sec 5F of the Civil Liability Act 2002. In my opinion, the risk was not at all obvious. The last thing anyone wanting to enter a shed used for storing goods would expect to see would be a concrete barrier similar to a small road hump. This may or may not have had some painted stripes on it on the day.
Even if the person entering saw a speed hump without anyone warning him of its presence, he would hardly expect that immediately behind it would be a fire hose filled to some extent with sand.
Can the plaintiff recover damages against both defendants?
It is perfectly clear that the first defendant was the owner of the premises, but at all material times it was the second defendant through its agency, the Rural Fire Service of New South Wales that was the occupier. In my opinion, the first defendant as the owner of the premises did not owe a duty of care to the plaintiff in relation to his delivering goods to the second defendant. There must be a verdict for the first defendant against the plaintiff. However when it comes to deciding the question of costs, I will bear in mind that both defendants were represented by the same counsel and the same solicitor.
Damages
As a result of his fall, the plaintiff struck his head and fell onto his right hip area, breaking the neck of the right femur with displacement. He underwent surgery and had a total hip replacement. For 5 weeks he was partially weight bearing on crutches and thereafter for 5 weeks, he walked with the aid of a walking stick. Thereafter, he has been able to walk around but gets pain from time to time in the area of the right hip and finds it difficult to walk up and down stairs without pain. It is quite clear on the medical evidence that he is not fit to carry out work any more as a courier because of his difficulty in walking up and down stairs and because he would not be able to climb in and out of vans and load them.
There is in reality no dispute on the medical evidence about the plaintiff's injuries, nor his pain, stiffness and continuing disability.
The plaintiff, who was born on 25th November 1947, has had a steady history of employment during his working life. The defendants, through their counsel, claim it has been a "chequered" one. I do not agree. He has had extensive experience as a professional driver of trucks and buses, has had administrative jobs, employment as an ambulance officer, a funeral director, a boot repairer and, after he completed appropriate TAFE qualifications, employment by Volvo (Australia) for 6 years in a computer support/ help desk role, something he really enjoyed and tried to continue with other employers after his retrenchment by Volvo. When it proved not possible to return to computer work, he bought a van, got a contract with Allied Transport and went back to the job of being a courier/ deliveryman.
After recovering sufficiently from his hip operation, and recognising that he could not do work as a courier driver, he attempted pizza delivery work and when that proved too difficult, he got a job making dough for Pizza Hut on a contract basis.
He impressed me as being extremely hard working and committed to returning to work and continuing to work.
His wife gave evidence and she is clearly a most unfortunate woman who has been severely disabled for many years by chronic arthritis, a condition that has made her very dependant on him to do physical work around the house. I am satisfied that he does all the heavy housework as well as mowing lawns, and putting the washing on the line. Because of his problems with his hip, he does this more slowly than he was able to do previously.
However, he does this work and I am unable to find that he needed domestic assistance in the past, following the accident. He does not need any in the future.
He is entitled to significant compensation for his pain, suffering and continuing disabilities and for the fact that he finds the tasks of life more difficult and tiring than he did before the accident.
Plaintiff's counsel submitted that I should regard him as entitled to 35% of a most extreme case for economic loss. Defendant's counsel submitted that I should find him entitled to 21% of a most extreme case.
These assessments are always difficult to make. I have decided that he is entitled to 33% of a most extreme case.
The hip replacement was successful but there must be some chance that there will be a need to replace the hip again. Certainly, Dr Bodel thinks so. At the same time, I must have some regard to the opinion of Dr Drummond that there will be no such need. Defendant's counsel submits that at best I should regard him as having a 20% chance of replacement and I should provide accordingly. I do not think it appropriate to assess matters in this way, but rather to provide him with a "cushion" for future medical expenses and I provide $3500.00
Economic Loss
The last tax return of the plaintiff shows that in the period up to 30th June 2009, he earned on a nett basis from the contract with Allied the sum of $506.69 per week. He was completely unable to work, I am satisfied, until he got a position with Pizza Hut on 8th June 2010. Thereafter, his earnings went up and down, but in the period up to judgment, they amounted to $118 per week. Certainly, on some weeks he earned much more than this, but on other weeks he earned less. His earnings could also be regarded as being likely to fluctuate in the future in much the same way.
The result is that in the period from 8th June 2010 to judgment, his earning capacity loss was $388.00 per week. That is a continuing loss. He claimed that he intended to work until he was 70 years old. I accept this evidence, since his past dedication to working supports this intention. The amount for the future is subject to the 5% tables and there should be a discount for vicissitudes of 15%.
The figures would then be:
(1) From the date of accident to 8th June 2010 $94,788.00.
(2) From 9th June to judgment $89,822.00.
(3) For the future to age 70 years (5 years and 14 weeks) $96,922.00.
(4) He is also entitled to damages for loss of superannuation entitlements. I allow him $20,000.00.
(5) He is also entitled to $496.00 for past out of pocket expenses
(6) The total amount of these figures is $477,128.00.
(7) The discount for contributory negligence results in a verdict amount of $381,702.40.
I will not enter judgment until counsel have checked these figures.
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Decision last updated: 12 October 2012
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