Javor v ACN 096 712 337 Pty Ltd formerly known as Formtec Group Pty Ltd
[2012] NSWDC 157
•25 September 2012
District Court
New South Wales
Medium Neutral Citation: Javor v ACN 096 712 337 Pty Ltd formerly known as Formtec Group Pty Ltd [2012] NSWDC 157 Hearing dates: 28 & 29/06/2012, 4 & 13/07/2012 Decision date: 25 September 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict for the plaintiff in the sum of $1,021,888;
2.After offsetting from the plaintiff's verdict the defence of payments made to the plaintiff in the sum of $271,952.32, judgment for the plaintiff in the amount of $749,935.68;
3.The defendant is to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered;
4.The exhibits may be returned;
5.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - workplace accident - whether plaintiff's employer was negligent - whether there was contributory negligence on part of plaintiff; DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002: s 3B, s 5B
Uniform Civil Procedure Rules 2005, r. 31.23
Workers' Compensation Act 1987, s 151LCases Cited: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 Category: Principal judgment Parties: Damir Javor (Plaintiff)
ACN 096 712 337 Pty Ltd formerly known as Formtec Group Pty Ltd (Defendant)Representation: Mr F Curran (Plaintiff)
Mr H Halligan (Defendant)
Carters Law Firm (Plaintiff)
Hicksons (Defendant)
File Number(s): 2012/104654 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1]
Issues
[2] - [3]
Credit
[4] - [12]
Facts
[13] - [73]
Plaintiff's background
[14] - [16]
Employment history
[17]
Accident on 20 April 2004
[18] - [20]
Injuries and initial treatment
[21] - [22]
Medical and allied treatment and assessments
[23] - [60]
Surveillance and DVD evidence
[61] - [63]
Findings as to ongoing disabilities
[64] - [65]
Employment effects
[66] - [68]
Mitigation
[69] - [73]
Consideration of Issue 1 - Negligence of defendant
[74] - [88]
Consideration of Issue 2 - Alleged contributory negligence
[89] - [98]
Consideration of Issue 3 - Assessment of damages
[99] - [156]
Life span of plaintiff
[102]
Past economic loss
[103] - [138]
Fox v Wood
[139]
Future loss of earning capacity
[140] - [153]
Past loss of superannuation
[154]
Future loss of superannuation
[155]
Summary of damages assessment
[156]
Disposition
[157]
Costs
[158]
Orders
[159]
Nature of case
The plaintiff, Mr Damir Javor, brings these proceedings against the defendant, ACN 096 712 337 Pty Ltd, formerly known as Formtec Group Pty Ltd, his former employer, seeking damages for alleged negligence for orthopaedic injuries he sustained in a fall at his place of work, on 20 April 2004, whilst he was assisting to construct formwork on a multi-storey building site at Milsons Point. The proceedings are governed by the provisions of the Workers' Compensation Act 1987 ["WC Act"].
Issues
In addition to questions concerning the identification of the relevant background facts, and the assessment of the credibility and reliability of testimony, these proceedings are concerned with the following central issues:
Issue 1 - Whether the defendant was negligent in the work system in which the plaintiff was required to participate, and whether such negligence was the cause of the plaintiff's injuries. My conclusions on this issue appear between paragraphs [74] to [88] of my reasons;
Issue 2 - Whether there was contributory negligence on the part of the plaintiff, as was alleged by the defendant, and if so, to what extent. My conclusions on this issue appear between paragraphs [89] to [98] of my reasons;
Issue 3 -The assessment of the plaintiff's entitlement to damages. My conclusions on this issue appear between paragraphs [99] to [156] of my reasons.
I shall first set out my assessments on matters concerning the credibility and reliability of the witnesses who gave oral testimony.
Credit
During the course of the plaintiff's evidence on the first day of the hearing, a problem arose with the interpreting of his evidence from the Serbian language to the English language.
The problem was that the plaintiff gave his evidence in the Serbian language with a Dalmatian dialect, whereas the interpreter was familiar with the Macedonian dialect of that language, which apparently had some similarities with, but was not the same as, the dialect used by the plaintiff. This interpretation problem was brought to the attention of counsel for the plaintiff by someone who was multilingual, and who was present in the court observing the proceedings. Once that problem had been identified, the parties took the practical course of obtaining the services of an interpreter who was familiar with the plaintiff's dialect.
In addition to the evidence of the plaintiff, factual evidence was called from Mr Thomir Oliveric and Mr Milan Visic, who had worked as formwork labourers for other companies, and from the plaintiff's daughter, Ms Nicolina Javor.
Mr Oliveric, a formwork labourer with a degree in economics in his former country, and who at the time of the hearing was studying to complete a Grade IV Certificate in Accounting, gave his evidence without the aid of an interpreter. He stated that since the early 2000's, there was an abundance of work for men of Serbian origin in the building industry in Sydney, working a standard 6 days per week, including payment for 15 hours on Saturdays for 8 hours of work. Mr Oliveric was earning $1330 net per week since 1 March 2012, including overtime: Exhibit "J". He said he had known the plaintiff for some 5 - 6 years. He described how he had acquired his own skills as a formwork labourer, including with the use of power tools, within a matter of days which suggested that such skills could be acquired quickly.
Mr Visic, another formwork labourer, gave his evidence through an interpreter. He has worked as a formwork labourer in the building industry in Sydney with various employers since May 2005. His evidence was to the effect that his net earnings at the time of the hearing for full time work were $1230 per week without overtime. His payslips which were marked Exhibit "K" showed significant amounts for overtime. The evidence of Mr Visic was not materially challenged.
The plaintiff's daughter, a law student aged 19 years at the hearing, who had already obtained a diploma in legal services from a business college after leaving school, was aged 11 years when the plaintiff was injured in the subject accident. She described how at home the family exclusively spoke only Serbian. She stated that she had never heard the plaintiff speaking English other than very basic English, notwithstanding that she had at times tried to assist him to learn the language. She described his embarrassment at not being able to pick up the language.
Miss Javor described how she had from time to time assisted her father to apply for various jobs after his accident by rehearsing with him what was likely to be said or asked at interviews, including by writing things out for him in Serbian letters. Miss Javor also assisted the plaintiff with filling out forms and the like. She identified a record of the plaintiff's post-accident attempts to find work by reference to a written record she had helped him to maintain: Exhibit "H". She said this record was kept to assist him to continue to obtain continuing fortnightly payments.
The defendant showed some DVD surveillance footage of the plaintiff's activities: Exhibit "3". I did not consider that surveillance evidence had any adverse impact upon the plaintiff's credit, or upon the truthfulness of his evidence.
I formed the impression that all these witnesses gave truthful evidence. I did not consider that the credibility of any of these witnesses had been damaged. I set out my reasons for this view in the portions of my reasons that deal with mitigation and the plaintiff's obligations under s 151L of the WC Act, and in connection with the consideration of the plaintiff's claim for disability and economic loss.
Facts
In the paragraphs that follow, I set out my findings of fact concerning the plaintiff's background, the circumstances of the accident, and the matters that emerged from the medical examinations and assessments of the plaintiff.
Plaintiff's background
The plaintiff was born in Croatia in 1966. He arrived in Australia in 2001. He was aged almost 38 years at the date of the accident. At the hearing he was aged almost 46 years. He gave his evidence with the assistance of an interpreter in the Serbian language. He is married with three children. He has only a very limited ability to communicate in the English language. Despite having attended classes and having had many hours of tuition to assist him to learn English, he seems not to have a facility for learning the language, and appears to be too embarrassed to try to communicate in English.
In Croatia, the plaintiff had completed his secondary education to age 18 years. He then worked with his parents on their farm before undergoing a year of compulsory military service during which time he sustained an injury to his right ankle and foot due to a land mine explosion, which left him with a disability of that leg.
Following the plaintiff's arrival in Australia, in 2002 he underwent surgery for a right ankle arthrodesis to repair his right ankle disability. This has left him with resultant right ankle stiffness, which in the period up until the time of the accident, did not restrict his earning capacity. He was able to negotiate stairs, ladders and was generally mobile and fit for work on building sites. Otherwise, the plaintiff was in good health before the subject accident.
Employment history
In November 2003, the plaintiff commenced employment with the defendant. He was deployed to work as a formwork labourer on a 14-storey apartment building site under construction at Milsons Point. The plaintiff was fully fit for that employment with the defendant. His work involved heavy labouring in the construction industry. His work was physically demanding and it provided him with a good income. He had the benefit of site allowances, penalty rates and overtime which provided him with a net income in excess of $900 per week for a 6 day working week.
Accident on 20 April 2004
At about 1.45pm on Tuesday 20 April 2004, in compliance with the directions given to him by his immediate supervisor, who was also employed by the defendant, the plaintiff was standing on a platform of planks laid across a scaffolding brace whilst assisting to build formwork above him. He was required to stand with his full body weight supported in that position in order to hammer nails into other formwork structures that were being built above him. The plaintiff was simply following the instructions given to him by his foreman.
In the course of complying with that direction, the brace for the plank on which the plaintiff was standing was, unbeknown to the plaintiff, unsecured, and gave way from underneath him. This was because the plank had not been nailed into position or had been inadequately nailed down. Either way, the plaintiff had no notice that this was so. When the plank gave way, this caused the plaintiff to topple and fall a distance of about 2m onto a concrete floor below. As the plaintiff fell, a timber beam fell from a height onto his right leg injuring his right knee.
In these events, the plaintiff fell onto his back. At that time he felt intense pain in his back and around his right knee in the area where that knee had been struck by the falling timber beam.
Injuries and initial treatment
At the worksite first aid station, ice was applied to the plaintiff's right knee. His work supervisor then drove the plaintiff to the railway station and advised him to seek medical assistance.
After seeing his general practitioner, the plaintiff was sent for x-rays and then referred to Dr Mathew Giblin, an orthopaedic surgeon. After a fracture had been found in his right knee, Dr Giblin later operated on that knee in an arthroscopy procedure. The plaintiff was also prescribed painkilling medication. These medications caused the plaintiff to suffer gastro-intestinal problems.
Medical and allied treatment and assessments
The plaintiff has undergone a number of medical examinations from treating and assessing doctors and other practitioners.
The plaintiff tendered a bundle of some 21 items of medical reports and correspondence that spanned the period 26 May 2004 to 30 May 2011. The last of those reports pre-dated the hearing by a year. Some of the reports did not have the acknowledgement required by UCPR r. 31.23. No objection was taken on that account.
The defendant has also had the plaintiff examined by various specialists. In the paragraphs that follow, a chronological summary is set out summarising the effect of those various attendances.
On 26 May 2004, at the request of Dr Sanki, the plaintiff's general practitioner at that time, the plaintiff underwent an MRI study of the right knee which was reported as showing a right femoral condylar fracture with a wedge shaped fragment involving the articular surface and weight bearing area.
On 7 July 2004, at the request of Dr Velinor Todorovic, another general practitioner, the plaintiff was examined by Dr Mathew Giblin. The focus of that examination was the plaintiff's right knee and thoracic spine. He found some depression of the fractured lateral femoral condyle. He recommended updated MRI imaging studies of the right knee and thoracic spine.
On 15 September 2004, the plaintiff underwent an MRI study of his thoracic spine at the request of Dr Giblin, who cited the results of this scan at his next consultation.
On 20 September 2004, Dr Giblin re-examined the plaintiff and reported to Dr Todorovic that there was a healed fracture of the lateral femoral epicondyle with a small step in the articular surface. He also identified mild thoracic scoliosis and a small disc protrusion at T11/T12 without significant nerve root pressure. At this time Dr Giblin started the plaintiff on physiotherapy treatment to these affected areas.
On 27 October 2004, Dr Giblin reviewed the plaintiff and reported to Dr Todorovic to advise that the plaintiff had complained to him of a persistently painful right knee. A diagnostic arthroscopy was recommended.
On 30 November 2004, Dr Giblin wrote to Dr Todorovic to advise that he had performed an arthroscopy procedure on the plaintiff's right knee. Dr Giblin stated that at that time he had also carried out a sub-total medial meniscectomy and division of the plica of the plaintiff's right knee.
On 17 December 2004, Dr Giblin wrote to Dr Todorovic to advise of the details of his examination of the plaintiff on that day. At that time he advised that the plaintiff was mobilising well and that the plaintiff's pain was significantly improved. He advised the plaintiff could return to work when his general practitioner, Dr Todorovic, thought fit. It appears that Dr Giblin discharged the plaintiff from his care at that time.
On 21 February 2005, at the request of Dr Todorovic, the plaintiff was examined by Dr Mark Horsley, an orthopaedic surgeon. Dr Horsley considered the relationship between the plaintiff's right knee injury in the accident of 20 April 2004, and the earlier landmine injury and arthrodesis of the plaintiff's right ankle.
Dr Horsley identified the fact that the plaintiff's right knee pain was made worse by a posture of forced extension when walking. This was due to the pre-existing ankle arthrodesis and Dr Horsley considered this was exacerbating the plaintiff's right knee pain. He identified the fact that the plaintiff tended to walk with is knee fully extended, which was the position of maximal pain. He suggested the plaintiff use a rocker-bottom on his shoe to lessen the knee pain.
I accept the analysis put forward by Dr Horsley. It is logical and persuasive. It establishes that the defendant must bear the responsibility for the plaintiff's right knee problems and the exacerbation of those right knee problems due to the underlying arthrodesed ankle. In that regard, the defendant must take the plaintiff as he is found.
On 22 February 2005, the plaintiff's general practitioner Dr Todorovic provided a letter to the workers' compensation insurer setting out the plaintiff's history, summarising the investigations and treatment that had been carried out to that date, and expressed the opinion that it was unlikely that the plaintiff would ever be able to return to his pre-injury duties as a labourer. He advised that the plaintiff would in the future be restricted in his work duties and that he was at an increased chance of developing accelerating arthritis in the right knee.
On 9 March 2005, Dr Horsley advised the workers' compensation insurer that the plaintiff needed a rocker-bottom orthosis to be made underneath his shoe, and approval was sought from the insurer for this orthosis.
On 6 April 2005, Dr Horsley wrote a further letter to the workers' compensation insurer confirming that were it not for the subject injury to the plaintiff's right knee, he would not need the rocker-bottom orthosis as his right ankle was already arthrodesed.
On 7 October 2005, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Vijay Panjratan, an orthopaedic surgeon. On that occasion he recorded that the plaintiff's ongoing complaints of right knee pain and some right ankle pain prevented him from returning to work. Dr Panjratan also noted the plaintiff's ongoing complaints of back pain. He confirmed the plaintiff had the injury or condition that he had claimed. Although Dr Panjratan found the plaintiff had ongoing residual symptoms in his right knee, I found his reasoning for the plaintiff's inability to return to work because of his previous ankle injury difficult to follow, and I do not accept that part of his opinion as it is not fully reflective of the plaintiff's complaints.
On 29 March 2006, Dr Mark Sheridan, a neurosurgeon, wrote a letter addressed "To whom it may concern", advising that the plaintiff had persisting pain at the level T11/12 with a queried disc prolapse at that level. He advised of the need for the plaintiff to have a thoracic MRI scan to help assess and guide further treatment.
On 11 April 2006, at the request of the worker's compensation insurer, the plaintiff was examined by Dr Atindra Bhattacharyya, a consultant orthopaedic surgeon. He found some discomfort in the right knee in the terminal degrees of flexion. He also noted the presence of tenderness over the levels D4 and D6 of the plaintiff's spine. In his examination, he elicited mild spasm and pain on the terminal degrees of rotation of the plaintiff's thoracic spine. After reviewing the imaging reports that he listed at page 4 of his report of this consultation, he advised that the plaintiff's continued right knee problems were due to the healed irregularity of the articular surface of that knee.
Dr Bhattacharyya indicated that the plaintiff's prognosis was guarded, with the expectation of continued problems for the plaintiff with negotiating uneven surfaces. He advised that the plaintiff should look for light work avoiding continued standing or walking for more than 20 to 30 minutes, or heavy lifting or walking on uneven surfaces.
On 21 April 2006, at the request of Dr Sheridan, the plaintiff underwent a thoracic MRI scan which identified a T11/12 disc space narrowing, with disc dehydration in association with a small left postero-lateral and far left lateral protrusion with minor encroachment of the thecal sac towards the exiting nerve root at that level. Otherwise, the report referred to minimal degenerative changes within normal limits.
On 8 October 2008, at the request of Dr Mahony, the plaintiff underwent an x-ray and ultrasound of the right knee. This was reported as early degenerative narrowing in the medial compartment, which was diagnosed as representing mild medial degenerative arthritis of the right knee.
On 12 October 2006 Dr Bhattacharyya provided a short supplementary report at the request of the solicitor for the worker's compensation insurer concerning his assessment of the plaintiff's Whole Person Impairment under the WorkCover guidelines.
On 13 August 2008, at the request of the workers' compensation insurer, the plaintiff underwent a functional assessment report by Ms Nicole Gallagher, a psychologist, from a rehabilitation provider called Konekt. The assessment comprised vocational interviewing and a transferable skills analysis. It appears from page 2 of the resultant report dated 13 September 2008, that there had been some initial reports prepared by Konekt dated 16 June 2008 (referred to on p 5) and 16 July 2008 (referred to on p 2), which were not in evidence. It also appeared that there was a previous vocational assessment report dated 5 August 2008 (referred to on p 2), which was not in evidence either. The 13 September report by Konekt did not contain an acknowledgment of the Expert Witness Code, as was required by UCPR r 31.23. I shall refer to the report in greater detail in connection with my consideration of the plaintiff's claim for economic loss and in connection with the issue of mitigation. In the meantime, it is relevant to note that Ms Gallagher administered some psychological tests to the plaintiff, the results of which indicated that he was exhibiting depression, anxiety, and stress, which may be impairing his ability to function socially, emotionally and in an occupational capacity.
Ms Gallagher also noted the plaintiff had limited transferable skills. She also noted the plaintiff had difficulties with non-phonetic words, difficulty interpreting phone messages, comprehension of some written materials and utilising job advertisements. She also identified, what she described as pain-focussed behaviour, poor and limited English skills. She also noted the plaintiff had poor functional tolerances and she envisaged difficulties in the plaintiff returning to the workforce to unskilled jobs to which he was restricted due to his language difficulties.
On 11 September 2008, at the request of the workers' compensation insurer, the plaintiff was examined by Dr James Powell, an orthopaedic surgeon. Dr Powell identified that the plaintiff had reduced lumbar extension movements, with complaints of discomfort, marked wasting of the right quadriceps muscles, and tenderness over the lateral joint line of the right knee. Dr Powell identified a healed step deformity of the right lateral femoral epicondyle involving the joint surface as a persisting accident related right knee deformity. He also identified early arthrosis in the right knee. Dr Powell concluded that the subject accident was a substantial contributing factor to the plaintiff's right knee and back symptoms. Significantly, Dr Powell identified a mechanical loading problem of the right knee due to the ankle injury and problems with back pain that may be alleviated with a shoe build up with a rocker-bottom to help reduce abnormal loads in the knee. The plaintiff had no need of such devices before the subject accident. Dr Powell recommended fitness for light work of a largely sedentary nature, with other restrictions.
On 16 October 2008, at the request of Dr Mahony, the plaintiff underwent a total body scan which was reported as showing no abnormal tracer uptake in the thoracic and lumbar spine, but an increased uptake in the right ankle joint and right sub-talar joint which was thought to be due to previous fracture or arthritis. I interpolate that this was consistent with the plaintiff's account of his right ankle injury that he incurred before he had arrived in Australia.
On 26 March 2009, at the request of Dr Mahony, the plaintiff underwent a further whole body bone scan which suggested the presence of low grade degenerative arthritic changes in the thoraco-lumbar spine and probable arthritic changes in the sub-talar region of the right foot.
On 6 May 2009, at the request of Dr Mahony, the plaintiff underwent an ultrasound of the right knee which was interpreted to show a possible stranding or a partial thickness tear of the medial collateral ligament of the right knee.
On 4 November 2009, at the request of his solicitor, the plaintiff was assessed by Associate Professor Terry Bolin, a consultant gastro-intestinal and hepatic physician, who diagnosed gastro-oesophageal dysmotility and irritable bowel syndrome.
On 11 March 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Margaret Gillies, a consultant gastroenterologist. She disagreed with Professor Bolin's diagnosis of an irritable bowel condition, and considered that the plaintiff's intermittent constipation issues were caused by taking analgesics.
On 16 July 2010, a Medical Assessment Certificate was issued by Dr JM Duggan, a gastroenterologist, concerning his assessment of the plaintiff's degree of permanent gastro-intestinal impairment. His focus was the question of the plaintiff's dyspepsia, which he thought may well be related to his intake of non-steroidal anti-inflammatory drugs. Dr Duggan avoided commenting upon orthopaedic issues as these were outside his area of expertise. His assessment was that the plaintiff had a 2 per cent Whole Person Impairment, according to the applicable assessment guidelines.
On 25 August 2010, Konekt issued what was described as a closure report. This was prepared by Ms Lauren Somers, a rehabilitation counsellor. The report was based on the plaintiff's participation in rehabilitation with Konekt since 3 May 2010. The services provided by Konekt seemed to be a vocational counselling session commenced on 3 May 2010, a job search skills training session commenced on 28 June 2010 and an English course referral on 28 July 2010.
These interventions did not result in the plaintiff returning to employment because of his difficulties with English and his belief that Konekt and the insurer were responsible for finding him an alternative job. Be that as it may, the plaintiff did make other attempts to find work: Exhibit "H".
On 7 December 2010, at the request of his solicitors, the plaintiff was assessed by Dr Mehdat Guirgis, a consultant orthopaedic surgeon. Dr Guirgis considered that in the accident, the plaintiff had sustained firstly, a post-traumatic mechanical derangement of the thoracic area of the spine caused by a musculo-ligamentous strain with intervertebral disc involvement triggering and aggravating underlying degenerative or spondylitic changes in that area of the spine, and secondly, a post-traumatic impairment of the right knee joint due to a fracture of the medial femoral condyle secondary to a fracture of that condyle which disrupted the femoral condylar articular surface. Dr Guirgis considered that the plaintiff should avoid many physical activities that were likely to place stresses to the plaintiff's back and to his right knee.
On 31 May 2011, at the request of the solicitor for the plaintiff, Dr Guirgis advised that he had considered the report from Ms Gallagher of Konekt. He said he agreed with her conclusion in the following terms:
"... 'Due to Mr Javor's presenting barriers as outlined in this report, such as poor English skills, limited transferable skills and poor functional tolerances, it is very difficulty for Mr Javor to return to the work force. Mr Javor presents with limited English and transferable skills, limited Australian education background and poor physical tolerances. Mr Javor's transferable skills and poor English restrict him to unskilled labouring jobs; however, such positions are currently beyond Mr Javor's functional tolerances.' "
[Emphasis as in the original text]
There was no further medical evidence from the plaintiff's side beyond 31 May 2011.
On 22 December 2011, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Graham Hall, an occupational physician, and Ms Edina Delic, a psychologist. The essential purpose of the assessment was to determine the plaintiff's physical and functional capacity for work, and some material on labour market conditions. This material will be analysed in greater detail in connection with the consideration of the plaintiff's claim for economic loss and loss of earning capacity.
Surveillance and DVD evidence
The defendant's insurer arranged for surveillance of the plaintiff's activities: Exhibit "2". The defendant had the plaintiff under surveillance for a total of 20 hours over 3 non-consecutive days. That surveillance resulted in a total of 7 minutes and 37 seconds of non-continuous video footage.
DVD footage comprising Exhibit "3" was taken on 2 separate days. The footage taken on 22 December 2011 shows the plaintiff variously walking, sitting, sitting in a motor vehicle and ascending and descending stairs. The footage taken on 5 January 2012 shows the plaintiff sitting in a motor vehicle, driving and walking.
In my view, neither Exhibit "2" nor Exhibit "3" reveal anything of significance that derogates from the plaintiff's claim for damages. The activities shown on the DVD footage are benign and are of such relatively short duration that they cannot be reasonably said to be contradictory of the plaintiff's evidence.
Findings as to ongoing disabilities
The plaintiff's resultant difficulties have centred upon ongoing pain in his back and his right knee. He has difficulty walking, lifting and exerting himself. He has stiffness in his back and has difficulty with exertion. He has suffered a reduction in his physical fitness. He is therefore precluded from engaging in work in the construction industry.
The plaintiff's disabilities include the prospect of increased arthritis of the right knee with some disruption of the articular surface. His right knee problems have caused the plaintiff's need for orthoses to assist with his gait. His arthrodesed right ankle exacerbates his right knee pain when he walks. He has reduced mobility and agility. He has pain and discomfort in his thoracic spine. He has mechanical derangement in his spine at the level T12/12. These conditions led to the plaintiff's need to take medication to relieve his discomforts. He had an adverse reaction to those medications and this has caused the plaintiff to suffer irritable bowel syndrome. The plaintiff has suffered much irritation and loss of confidence as a result of his ongoing disabilities. He has also suffered depression and anxiety, as was noted by the defendant's psychiatrist.
Employment effects
The plaintiff's ability to resume his pre-injury work and his ability to work generally has been adversely affected by his injuries and ongoing disabilities. The plaintiff has not worked since his injury. His disabilities have resulted in a substantial impairment in his otherwise unrestricted earning capacity.
Notwithstanding his ongoing disabilities, the plaintiff has made extensive efforts in the Fairfield area and in the environs of his Serbian community in an effort to try and find light part-time work suited to his limited abilities. He has provided job search diaries to the workers' compensation insurer until early 2010: Exhibit "C", paragraph 8, and the annexures to that exhibit. The insurer's rehabilitation provider has been unable to find him alternative work. This appears to be in part due to the plaintiff's limited facility for learning the English language. Since 2011 the plaintiff has been on Centrelink benefits but has continued, unsuccessfully, to try and find a light duties job.
Given that the plaintiff's unemployed circumstances are unlikely to substantially change, I consider that he has suffered a significant diminution in his earning capacity. The medical evidence and my conclusions on this subject, are considered in greater detail in my reasons dealing with the plaintiff's claim for economic loss and loss of earning capacity.
Mitigation
The defendant claims that the plaintiff has failed to mitigate his damages, contrary to the duty upon him to do so as codified by s 151L of the WC Act. In my view, contrary to the defendant's submissions on this point, the plaintiff has pursued medical treatment for his accident-related medical problems and that is not consistent with an alleged failure to mitigate.
The plaintiff has an apparent lack of proficiency with the use of the English language as he does not have a facility for learning the language. I do not consider his inability to learn to use English represents an unreasonable failure to mitigate his damages.
The plaintiff kept extensive records as to his attempts to find work since his injury: Exhibit "H" and Exhibit "C", paragraph 8, and the annexures to that exhibit. Some of those positions included French polisher, butcher, tree worker, cleaner, kitchen hand, window assembly, factory hand, sandwich hand, warehouse picker, sheet metal worker, process work, shop assistant, car detailer, sales involving fruit & vegetables, industrial spray painting and tyre fitter, to name some of the jobs listed in Exhibit "H".
Whilst some of the positions he sought in that regard may have been unrealistic having regard to his lack of skill in the English language, overall, I consider the plaintiff was well motivated and should not be criticised for not trying to mitigate his situation, as the circumstances suggest otherwise.
I now turn to a consideration of the issues identified by the parties as calling for decision in these proceedings.
Consideration of Issue 1 - Negligence of employer
Essentially, the plaintiff claims that the defendant was negligent in the following particularised respects:
(a) Failure to provide a safe system of work and safe access to a safe place of work: particulars 9(i), (ii), (iii) and (ix);
(b) Failure to provide a safety harness: particular (iv);
(c) Failure to provide a safety rail around a secure elevated working platform: particulars (v) and (vi);
(d) Failure to provide warnings concerning work to be carried out at heights on an unsecured platform without a safety harness: particulars (vii), (viii) and (x);
(e) Failure to provide proper supervision: particular (xi);
(f) Failure to provide manual or mechanical assistance: particular (xii) and (xiii);
Each of the above matters requires analysis in the context of the work system in which the plaintiff was engaged. That consideration proceeds according to a conventional common law analysis and not according to the more onerous framework required by s 5B of the Civil Liability Act 2002: s 3B of the Civil Liability Act 2002.
There is no issue that the defendant owed the plaintiff a relevant duty of care, and there is no issue as to the scope of the duty of care the defendant owed to the plaintiff as its employee. That duty included a non-delegable obligation to devise a method of work that eliminated the risk of injury or provides adequate safeguards against that risk: Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349, at [12] - [13].
In that regard, I consider that it was reasonably foreseeable to the defendant, as the plaintiff's employer, that if the plaintiff had been working on a building site at a height above the floor or ground, and if proper safety precautions were not taken to protect him, the plaintiff could fall and sustain injury.
As to the system of work and the non-provision of a harness
The system of work in which the plaintiff was engaged involved him working at heights in order to construct the next level of formwork in preparation for the pouring of a concrete slab on the next planned level above the existing floor base on which the base scaffold and platform was situated.
Where that system involved the plaintiff working on a platform above floor level and exerting hammering forces at or above head height, it was essential that the plaintiff be provided with a stable base on which to stand with his full body weight without incurring the risk of falling due to instability of the surface or platform on which he was standing. This is because he was directing his energies at hammering nails into the structure above him, and in doing so, his employer could not reasonably have expected him to keep a hand free for a handhold to maintain a stable standing position, whilst at the same time hammering nails into the structure above him.
As the plaintiff was expected to stand on a stable platform, in the circumstances described I do not consider it was necessary that he be provided with a safety harness. I consider this to be so because if he fell, which was foreseeably possible, nevertheless, whilst working in that position, it would not be expected that he would fall any great height. A fall in those circumstances would most probably only have involved a drop onto the platform where he was standing, assuming that it was a stable and securely fixed surface.
Here, the plaintiff's fall occurred because of an unstable base platform. Accordingly, in the circumstances of the plaintiff's fall, whilst in hindsight, the provision of a safety harness might have been a possible precaution, that is not the relevant consideration. When viewed prospectively, I do not consider that the non-provision of a safety harness in the circumstances represented a causally relevant departure from the duty of care required of an employer acting reasonably in the circumstances of the work in which the plaintiff was engaged.
That said, in contrast, I consider that the failure of the defendant to ensure that the plaintiff was provided with a stable platform on which to stand represented a relevant departure from the expected duty of care. This is because if the plaintiff was required to stand on an unstable platform whilst he was unaware that it was not secured, by nailing or otherwise, as was his otherwise reasonable expectation, it was reasonably foreseeable that he could lose his balance and fall from a much greater height to the floor than if he just fell onto the platform on which he was standing.
In those circumstances, it was incumbent on the persons responsible for securing the platform to ensure that it was safely secured and made safe for the plaintiff to stand upon whilst working with his hands above his head. This is because the plaintiff was required to place his trust on the safety of the platform on which he stood. In my view, the failure to provide such a stable platform was a departure from the expected standard of care. That departure occurred as a result of a negligent omission by the plaintiff's co-worker, his supervisor, to secure the platform and thus implement a safe system of work.
As to the non-provision of a safety rail
In my view, the non-provision of a safety rail by the employer does not constitute a relevant departure from the expected standard of care. This is because if there had been a stable platform, it was unlikely that the plaintiff would have fallen to the floor over a height of about 2m, as he did.
There was no evidence either way as to the practicability or otherwise of providing a safety rail on the described platform. On a commonsense analysis, it would appear from the description, that for a safety rail to be effective, it would have to be fitted to all four sides. There was no evidence about the practicality of such a course in this instance, especially bearing in mind that access to the working platform was also required.
As to the absence of warnings or supervision
The plaintiff received no warning from his supervisor that he was about to stand on a partly unstable platform. The unstable part of the platform was the section that his supervisor was supposed to have secured. In my view, the failure of the plaintiff's supervisor to effectively carry out his supervisory role and check the safety of the platform, and the consequent failure of the supervisor to warn the plaintiff that the platform was left unsecured and was therefore unsafe to stand on, represented a negligent departure from the standard of care the plaintiff was entitled to expect in the circumstances.
As to the non-provision of assistance
I do not consider that the defendant failed to provide adequate assistance to the plaintiff to enable him to carry out his work. From the plaintiff's description of the tasks assigned to him, it seemed reasonable that the formwork in question could be reasonably constructed, positioned and secured by persons working in pairs, as was the case here. I do not consider that the provision of any extra manual assistance would have made any material difference in the circumstances where the relevant failures comprised the failure to completely secure the platform, failure to inspect the platform for safety before requiring the plaintiff to stand upon it, and failure to warn the plaintiff that the platform had not been safely secured.
Conclusion on negligence of the defendant
In my view, the identified negligent failures on the part of the plaintiff's supervisor to implement a safe method of work caused the plaintiff's fall in the accident, and thereby caused his resultant injuries. As such, the defendant must be held vicariously liable for the negligence of its employed supervisor. Accordingly, I consider that the plaintiff has succeeded in establishing that his employer was causally negligent in the circumstances of his accident.
Consideration of Issue 2 - Alleged contributory negligence
The defendant claims that there was contributory negligence on the part of the plaintiff in the following particularised respects:
(a) Failure to set up the beams in a safe manner;
(b) Failure to maintain a proper hold whilst lifting the beams;
(c) Failure to take care for his own safety;
(d) The plaintiff was an inexperienced worker;
(e) The plaintiff placed himself in a position of danger.
These allegations require evaluation alongside the evidence.
As to alleged failure to safely set up the beams
There is no evidence to establish that it was the plaintiff's responsibility to safely set up the beam. There is no evidence that he had set up the beam, either unsafely or otherwise. Instead, it seems clear that the accident was caused by the provision of an unsafe standing platform due to non-secured timbers on the underlying brace structure. This was a failure on the part of the employer, and not the plaintiff.
As to alleged failure to maintain a proper hold
Although it is alleged by the defendant that the plaintiff failed to maintain a proper handhold, I consider that allegation is unsustainable as a particular of contributory negligence in this instance. The plaintiff would not have been placed at the risk of falling if the platform on which he had to stand had been safely secured. He was engaged in a work task that required him to use both of his hands above his head. In that regard, hammering nails into place above his head obviously involves positioning the nail with one hand and applying a hammering force with the other hand. In those circumstances, it is difficult to see how the plaintiff could have performed his assigned work tasks if he had also been required to keep a handhold with one of his hands in circumstances where the task that was required of him necessitated him using both of his hands.
As to alleged failure to take care for his own safety
The plaintiff was engaged in a work system that had been assigned to him by the defendant. Important safety components of that system had not been properly implemented by the defendant. The plaintiff was entitled to assume, absent notice to the contrary, that his employer's supervisor would look out for his safety by implementing a safe system of work. There is no evidence adduced by the defendant on this issue. Nor were any concessions made by the plaintiff which could reasonably base a finding that the plaintiff failed to take care for his own safety in connection with taking up his position on the platform in question.
Alleged inexperience of the plaintiff
The unchallenged evidence is that the skills necessary to work as a formwork labourer were capable of being acquired relatively quickly and easily. The plaintiff had been in the defendant's employ for about 5 months. It seems that this was sufficient period in which the plaintiff acquired the requisite experience. There is no evidence to sustain the proposition that the plaintiff's injury occurred due to inexperience on his part. In any event, this particular of alleged contributory negligence appears to be misconceived, as it was the defendant's obligation to ensure that the plaintiff was properly trained and appropriately skilled before he was assigned foreseeably dangerous work tasks.
As to allegedly placing himself in a position of danger
The potential for the danger of injury in the workplace is an ever-present and foreseeable possibility for which employers must be vigilant, according to the non-delegable duty of care that employers owe to their workers.
In this instance, the plaintiff had positioned himself on the platform appropriately and as directed by his supervisor in order to carry out the task that had been assigned to him by his employer.
There is no evidence that the plaintiff had unreasonably placed himself in a position of danger contrary to any instructions given to him, or so as to avoidably place himself in harm's way. He was simply carrying out the task assigned to him, which was both reasonably required of him, and which represented a necessary step in the construction of formwork. It seems from the limited description of the works, that if the platform had been stable and secured, it could have been used reasonably and safely to support the plaintiff's weight.
Conclusion on alleged contributory negligence
For the above reasons, I therefore conclude that the defendant has failed to make good any of its particularised allegations of contributory negligence. Accordingly, the defence of contributory negligence must fail.
Consideration of Issue 3 - Assessment of damages
I am satisfied that were it not for the negligence of the defendant, the plaintiff would not have sustained his injuries that have given rise to his claim for damages.
The plaintiff claims the following heads of damage:
(a) Past economic loss
(b) Fox v Wood
(c) Future loss of earning capacity
(d) Past superannuation
(e) Future superannuation
The plaintiff made no claim for past treatment expenses or for future treatment expenses as these are covered by the defendant's workers' compensation obligations. The defendant relies on paragraph 9 of the defence filed on 11 April 2012 regarding payments of weekly compensation in the amount of $271,952.32 which must be offset from any judgment in the plaintiff's favour.
Plaintiff's probable life span
In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses. At age almost 46 years, the plaintiff has a probable life span of 39 remaining years. Accordingly, there is no reason to assume his ordinary working life would be foreshortened by early mortality.
Past economic loss
On behalf of the plaintiff it was submitted that damages for past loss of income should be assessed in the net sum of $502,420. That sum was calculated on the basis of a continued loss of earnings from the 20 April 2004 injury until 30 June 2012, which was the second day of the hearing. That calculation incorporated periodic rate increments identified in the supporting schedule submitted on behalf of the plaintiff: MFI "4". Those rates included overtime, consistent with the evidence of Mr Oliveric and Mr Visic.
The plaintiff's income tax assessment for June 30th 2004 shows a taxable income of $30,562, tax and Medicare Levy payable at $5,799.03, yielding a net income of $24,762.97, or $476.21 per week net: Exhibit "D". It is not clear from the exhibit as to whether this is an analysis that fairly represents his weekly income because of the averaging calculation involved, and the lack of information about whether it included weekly compensation payments, or whether he worked between July and November 2003. Therefore, I draw no conclusions from this material, other than that the plaintiff derived these sums as income in that year.
A copy of the Collective Agreement between the Construction, Forestry, Mining and Energy Union and sub-contractors was tendered as Exhibit "4". That agreement showed that Construction Workers Level 1, which included Trades Labourers and Concrete Formwork Strippers, were paid at the base rate of $864.72 per week gross for a 36 hour week, and $36.03 per hour for time-and-a-half overtime and $48.04 per hour for double time overtime: Exhibit "4", p 37. Those rates were set to rise significantly in October 2012, March 2013, October 2013 and March 2014: Exhibit "4", p 38. From the evidence it was not possible to precisely construct a comparable wages model for the plaintiff using these rates but these figures serve to show a broad similarity between those rates and the stated incomes of Mr Oliveric and Mr Visic.
The underlying premise of the calculations put forward on behalf of the plaintiff was the submission that in practical terms, the plaintiff has been rendered incapable of gainful employment. In that regard, on behalf of the plaintiff it was submitted that the nature of the restrictions that have been imposed upon his return to work would preclude him for all types of work for which he was suited by his experience, aptitude and age.
In contrast, the defendant submitted that any claim for economic loss should cease as at 2005 in accordance with the last opinion of Dr Giblin. The defendant submitted there should be a finding that the plaintiff was fit for work from that time. The defendant further submitted that the plaintiff has blankly refused to co-operate with the attempts of Konekt to rehabilitate him for alternative work. The defendant also submitted that the list of jobs the plaintiff applied for, as set out in Exhibit "H", was nothing more than a cynical exercise in the nature of a charade passing off as compliance with the obligations on the plaintiff under s 151L of the WC Act in order to hoodwink Centrelink officials into continuing to pay him social security benefits. The defendant further submitted that the exercise behind the job applications list comprising Exhibit "H" was "plainly dishonest": T133.31.
The difficulty that stands in the path of acceptance of that submission is that the underlying assertion was not put to either the plaintiff or his daughter in cross-examination. Furthermore, it was made without reference to the job seeking diaries the plaintiff provided to the insurer to 2010, as was referred to in Exhibit "C", paragraph 8, and the annexures to that exhibit.
I shall return to the topic of the plaintiff's attempts at mitigation and his obligations under s 151L of the WC Act after considering the medical evidence on the issue of the plaintiff's earning capacity.
In order to evaluate the plaintiff's claim that he cannot work on account of the disabilities identified at paragraphs [64] and [65] above, it is necessary to consider the medical evidence relevant to the issue of the plaintiff's fitness for work.
When the evidence of Dr Giblin comprising his reports dated 7 July 2004, 20 September 2004, 27 October 2004, 30 November 2004 and 17 December 2004 is taken as a whole, as at 17 December 2004, the question of the plaintiff's fitness to return to work was left to the plaintiff's general practitioner, Dr Todorovic. In my view, this evidence identifies the overly simplistic nature of the defendant's submission that would have the plaintiff's claim for loss of earnings cease in 2004/2005, based on Dr Giblin's prospective opinion.
The further difficulty with the defendant's submission is that on 22 February 2005, Dr Todorovic expressed the view that it was unlikely that the plaintiff would ever be fit to return to his pre-injury duties as a labourer, and that a rehabilitation provider needed to become involved in finding the plaintiff a job within a range of descriptions that incorporated significant restrictions on physical activities, which included restrictions such as no prolonged walking or standing, no walking on uneven surfaces, no heavy lifting, no repetitive bending, no squatting, no kneeling and no climbing.
The prospective suggestion by Dr Todorovic that in 1 - 2 months from 22 February 2005 the plaintiff "will be fit for part-time light duties" was dependent upon the success of a work-conditioning program being successfully completed "with a view of gradually increasing his working hours towards normal working hours".
It is plain that Dr Todorovic's views on the plaintiff's capacity for work were significantly contingent on the outcome of uncertain events, and did not include the expectation that the plaintiff would return to the earnings position he would have been in, but for his injury on 20 April 2004.
It is clear from Dr Horsley's letter dated 21 February 2005 that the plaintiff has significant accident related pain when walking, which must adversely affect his mobility and agility, and therefore his earning capacity.
On 7 October 2005, Dr Panjratan noted that the surgery to the plaintiff's knee had not been beneficial to him. Having regard to the plaintiff's limp, he considered that the plaintiff was not able to return to the construction industry because of the risk of further injury. He also considered that the plaintiff would be prevented from returning to work because of his knee pain and other injuries, and because his right ankle had now become symptomatic. This of itself justifies a significant award for past and future economic loss.
Whilst Dr Panjratan stated that the plaintiff's inability to work was not linked to the work-related injury, I do not accept that aspect of his opinion because it was proffered in the context of the plaintiff's whole right leg being affected, along with his ankle. The point of significance is that the plaintiff's right leg did not prevent him from working before the accident, and the only intervening event preventing the plaintiff from working was the after-effects of the subject injury.
On 10 April 2006, Dr Bhattacharyya expressed the opinion that the plaintiff should be looking for light work not involving more than 20 to 30 minutes, where heavy lifting was not required, and where walking on uneven surfaces was not required. He expressed a guarded prognosis. He noted the plaintiff was engaged in seeking out light work. On 21 April 2006, Dr Bhattacharyya clarified the plaintiff's work recommendations to include a facility for a break of 5 to 10 minutes every hour until the plaintiff reaches a coping point towards normal full time hours. This formulation suggested significant practical limitations on the plaintiff exercising any residual earning capacity.
On 13 September 2008, a vocational assessment report was prepared by the psychologist, Ms Gallagher, on behalf of Konekt, at the request of the workers' compensation insurer. That report did not acknowledge the Expert Witness Code as required by UCPR r 31.23, which in this instance, I considered to be a significant limitation on its reliability in this context.
The Konekt report referred to a certificate of work fitness. It is uncertain as to whether that certificate was in evidence. The certificate was from Dr Todorovic, to the effect that the plaintiff was fit for suitable duties for 3 hours per day for 3 days per week, with restrictions on walking for 10 minutes, standing for 10 minutes, travelling for 30 minutes, sitting for 30 minutes and no climbing or walking on uneven ground.
Given the plaintiff's lack of facility for learning English, and the limitations within those cited restrictions, it is difficult to envisage translation of those parameters into a practical working formula. Given the plaintiff's inability to find work to suit his limitations, including those limitations listed on page 4 of Ms Gallagher's report, it is difficult to envisage that the plaintiff would have any practical residual earning capacity. This seems to be confirmed by Ms Gallagher's view that the plaintiff has limited transferable skills, and because of what she described as his pain focussed behaviour, which I interpret to mean his experience of pain, which was disturbing and distracting to him.
Against that background it seems that the recommendations by Ms Gallagher for possible work for the plaintiff in the positions of sales assistant, working in a fruit market or bakery, process work, electrical tagging and testing, electrical engineering associate, and assembly work, appear to be theoretical considerations that are unlikely to achieve practical implementation in the plaintiff's circumstances. This opinion also justifies a significant economic loss award.
On 25 September 2008, Dr Powell expressed the opinion that it would be unwise for the plaintiff to return to heavy manual work involving lifting, carrying of moderate loads, climbing, working at heights or on unstable surfaces. He suggested light sedentary work without too much standing and walking and avoiding being in awkward positions. He suggested bench top type work, noting that a skills upgrade was required in the plaintiff's circumstances.
In April 2010, Konekt arranged for the plaintiff to have some training with job search skills and English classes. There is no evidence that these interventions have improved the plaintiff's prospects for obtaining alternative employment, either for full time work or for part-time work. The author of the report identified significant barriers to the plaintiff obtaining employment. These included the lack of English skills, pain focussed behaviour, limited cognitive ability, limited transferable skills, psychosocial barriers and ongoing symptoms relating to the plaintiff's compensable injury. In this context, no-one has suggested that the plaintiff's ongoing symptoms are not real or disturbing to him. This too justifies a significant award of economic damages.
To the extent that the April 2010 Konekt report made mention of a lack of motivation of the plaintiff for returning to work, the embellishment of pain symptoms and restrictions, and his resistance to training in English and in job seeking, I do not consider that these are matters that should be seen as critical of the plaintiff or viewed as a failure to mitigate his damages, given his ongoing pain, his limited cognitive and language abilities, and the earlier effect of depression and anxiety on his potential for rehabilitation. At paragraphs [69] to [73] I have already identified my findings on the mitigation issues as not being adverse to the plaintiff.
On 7 December 2010, Dr Guirgis elicited tenderness over the plaintiff's thoracic spine and guarding of the paraspinal muscles. He also found abnormalities in the plaintiff's right knee and associated ligaments. He expressed the unchallenged opinion that the plaintiff was unfit for, and should avoid activities that applied stresses to the back and to the right knee. He ruled out heavy lifting, repeated lifting and repeated bending and twisting movements, activities causing jolting, jerking or jarring of the back, heavy manual handling, pushing or picking of heavy weights, prolonged standing or walking, repeated overhead reaching, and stresses to the right knee. On any reasonable view these matters involved significant work restrictions for the plaintiff.
Significantly, Dr Guirgis was of the opinion that the plaintiff's condition was stable and unlikely to substantially change in the ensuing 12 months.
On 31 May 2011, Dr Guirgis commented on the Konekt report dated 13 September 2008 and agreed with the assessment that it would be difficult for the plaintiff to return to the workforce.
On 22 December 2011, the plaintiff was assessed for vocational purposes by Dr Graham Hall, a vocational physician, and by Ms Edina Delic, a psychologist. The purpose of their assessment was to ascertain the plaintiff's functional capacity and medical status. The medical assessment carried out by Dr Hall ascertained that the plaintiff had right knee pain and back pain with radiation of symptoms to his right hip and right leg, as well as having a painful right ankle. It is noteworthy that the plaintiff's right ankle was not painful to him after the pre-accident fusion procedure, and seems to have become painful because of post-accident gait problems.
Dr Hall accepted the plaintiff's described limitations on activities requiring sitting and negotiating stairs. He described as conservative the plaintiff's description of his limitations on standing, walking and driving, he made no comment on the plaintiff's description of his ability to bend. He appears to have accepted the plaintiff's description of his limitations with lifting weights. He dismissed as not credible, the plaintiff's described difficulty with alternatively either sitting or standing as needed, all day, without the need for rest. In fairness to the plaintiff, I propose to discount that last critical comment by Dr Hall because it was not the subject of cross-examination of the plaintiff.
The reconciliation of the disparate positions of the parties in the economic loss submissions is dependent upon a consideration of the evidence of the plaintiff as well as the expert medical evidence as summarised above.
I have considered the recommendations made by Dr Hall and Ms Delic to the effect that the plaintiff was suitable for the positions of packer, factory process worker and machine operator. Having regard to the matters identified by the preponderance of the medical evidence, and from the terms and the context of the opinions proffered by Dr Hall and Ms Delic, I consider their recommendations to be formulaic and theoretical in their applicability to the plaintiff's circumstances. I do not accept them as being reasonable factors to be taken into account in order to discount the plaintiff's evidence of his inabilities and his claim for loss of earnings or loss of earning capacity. Instead, I prefer the opinions of Dr Guirgis and Dr Todorovic and I accept the evidence of the plaintiff.
The plaintiff tendered a log of his attempts to find light duty work between 24 March 2010 and 27 March 2012. There were some 94 entries, each written by hand: see oral evidence of Nicolina Javor and Exhibit "H". Each entry comprised a date of an approach to a potential employer, the name of the person or entity approached, along with a description of the position sought, and the telephone number. The jobs encompassed a range of light manual occupations which I have summarised at paragraph [71] above.
In view of the evidence I have outlined, I am satisfied that the plaintiff has lost income as claimed, despite his reasonable efforts to try and mitigate that loss.
Although I have found that the plaintiff has been prevented from returning to his pre-injury employment and has suffered consequential economic loss by reason of the effects of his injuries, and that he has taken reasonable steps to mitigate his damages, I do not accept as reasonable the figure of $502,420 put forward on behalf of the plaintiff as quantification of the claim for past economic loss as representing an appropriate sum to compensate the plaintiff for that loss.
I consider that sum should be discounted on account of several factors. The first such factor is the economic position of the defendant company, which went into liquidation. That fact must be accounted for as a discounting factor not only on the continuation of the plaintiff's employment, but also on the question of availability of regular overtime over the period to the date of the hearing. The second such factor is the existence of doubt over whether, given the trading status of the defendant, overtime, or steady overtime would have been available to the plaintiff in any alternative employment. The third such factor is the existence of doubt over whether the plaintiff would have been able to maintain continuous employment in the building or formwork industry until the time of the hearing, assuming he had not been injured. In this latter regard, it is noteworthy that Mr Oliveric and Mr Visic were employed by other companies, and the nature of the work in the building industry indicates that continued employment, without gaps, should be considered to be a rare phenomenon in that industry. Each of these considerations compels a discount of the submitted calculation for past economic loss.
The foregoing factors lead me to conclude that there must be a significant discount applied to the plaintiff's submitted economic loss calculation of $502,420. Having regard to those factors, I consider that the appropriate discount should be assessed at 25 per cent. This is because the discounting factors that apply to economic conditions involve more than just conventional discounting factors. This results in an assessment of past economic loss in the amount of $376,815.
I therefore assess the plaintiff's damages for past loss of earning capacity in the sum of $376,815.
Fox v Wood
The amount of past tax deductions from payments made to the plaintiff for workers' compensation payments has been agreed in the sum of $18,750. I therefore assess the plaintiff's entitlement to damages for reimbursement of tax deducted from past workers' compensation payments in the amount of $18,750.
Future loss of earning capacity
The plaintiff has submitted that, consistent with the continuation of the claim for past loss of income, damages for future loss of earning capacity should be assessed by the projection of an amount of $1285 per week net at 5 per cent over 21 years remaining working life to age 67 years (x 685.6) less 15 per cent for possible adverse vicissitudes. This projection yields the discounted sum of $748,848.
In contrast, and consistent with the defendant's submissions made with regard to the claim for past economic loss, the defendant has submitted that no allowance for loss of earning capacity should be made after 2005, based on the opinions of Dr Giblin and Dr Todorovic.
In my view, for the reasons that follow, each of those submissions is flawed and should not be accepted.
In the case of the defendant's submission, at paragraphs [107] to [108] of my judgment, I have already outlined my reasons for not accepting the proposition that the plaintiff's economic loss claim should end in 2005. The same reasoning applies here, which requires that the defendant's submission should be rejected as being overly simplistic and because they are against the preponderance and effect of the medical evidence as a whole, which I have summarised.
With regard to the plaintiff's future economic loss submission, it is apparent that from the defendant's perspective, the sum submitted for projection, and the period selected for projection, if accepted, would result in the plaintiff receiving unfairly generous compensation, or overcompensation. Accordingly, I consider that a discounted approach should be adopted.
A discount must be applied to the figure that bases the projection to reflect the uncertainties concerning the availability of continuous overtime in the building industry in the long term. A further discount must be applied in respect of the period for projection because it should not be assumed that the plaintiff would have been able to continue in a physically arduous occupation into his seventh decade without restrictions that come with age, and a decline in his physical capacities, whether caused by ordinary wear and tear, or by injury, compensable or otherwise. The final discounting factor is the conventional discount for possible adverse vicissitudes. I propose to analyse each of these factors separately.
As to the first factor, I consider that a discounted average amount of $1100 per week net should be used to base a projection of future economic loss in the short to medium term. This reflects the evidence that but for the accident, and subject to prevailing economic conditions in the building industry, the plaintiff was fit to continue to derive significant earnings in the building industry, including some overtime. This weekly sum selected for projection also incorporates a discount to reflect the likely non-continuous nature of work in the building industry when viewed over time.
As to the second factor, I consider it unlikely that uninjured by the accident in question, the plaintiff would have been able to continue in the building industry working in a physically arduous job until aged 67 years, especially since he has had a stiff right ankle that had been surgically arthrodesed. Whilst the evidence does not provide guidance as to how or when such a factor would be likely to militate against the plaintiff's continued employment in an arduous job in the construction industry, I consider that an appropriately discounted path for assessment must be discerned in order to allow for what I consider to reflect that reality, and at the same time avoiding unwarranted speculation. With that objective in mind, I consider that a projection of weekly loss of income of $1100 per week net over the ensuing 14 years until the plaintiff reaches the age of 60, would be both reasonable and fair to both parties.
Accordingly, the projection of $1100 per week net over 14 years at 5 per cent (x 529.3) yields the sum of $582,230.
In considering the appropriate discount to be applied to that sum for the usual potential adverse vicissitudes, given the relatively short term nature of the projection and the fact that the weekly figure for projection has already been discounted, I consider that the conventional discount of 15 per cent should be applied to that amount. This yields the discounted sum of $494,895.
This leaves for consideration the amount to be awarded to the plaintiff for the final period of his working life between the ages of 60 and 67 years.
In respect of this latter period, given the uncertainties over whether, had he remained uninjured, the plaintiff would have retained the physical ability to do heavy work into his seventh decade, and given the fact of his arthrodesed ankle and the long term effect this would have on his gait and mobility, and also given the inherent barriers to the plaintiff learning English and therefore being able to compete for employment on the open labour market as an ageing and unskilled worker, I consider that the projection of a weekly figure of assessed loss over that last period of 7 years would be inappropriate. Instead, given the uncertainties I have identified, I assess a buffer sum in respect of that period in the amount of $40,000.
In testing the reasonableness of that figure, I note that it can be analysed as being the equivalent of a little more than a projection of $300 per week net over 7 years (x 309.4), and deferred for 14 years (x 0.505) less a discount of 15 per cent. In my view, this confirms the reasonableness of the buffer amount I have assessed. The average figure of $300 per week over that period adequately reflects the age-related challenges the plaintiff would have encountered at that stage of his working life.
In aggregating the two amounts I have assessed, namely, $494,895 and $40,000, the total sum is, $534,865, I therefore assess the plaintiff's entitlement to damages for future loss of earning capacity in the sum of $534,865.
Past loss of superannuation
The plaintiff makes a claim for loss of past employer funded superannuation contributions. This sum is identified by applying the accepted rule of thumb of 11 per cent of past loss of net earnings. The plaintiff has been awarded $376,815 for this component of his loss. Applying the 11 per cent to that sum, past loss of employer funded superannuation benefits are identified as $41,449, I therefore assess the plaintiff's entitlement to damages for past loss of employer funded superannuation contributions in the amount of $41,449.
Future loss of superannuation contributions
I propose to adopt the conventional approach to assessing damages for loss of future employer funded superannuation benefits by taking 11 per cent of the damages assessed for future loss of earning capacity of $534,865, i.e. $58,835, and applying a 15 per cent discount on account of possible adverse vicissitudes. This yields the discounted amount of $50,009. I therefore assess the plaintiff's entitlement to damages for future loss of employer funded superannuation contributions in the amount of $50,009.
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Past economic loss
$376,815
(b) Fox v Wood
$18,750
(c) Future loss of earning capacity
$534,865
(d) Past loss of superannuation
$41,449
(e) Future loss of superannuation
$50,009
Total
$1,021,888
Disposition
The plaintiff has succeeded on all issues between the parties which called for decision. He is therefore entitled to a verdict in his favour in the amount of $1,021,888. The defendant is entitled to offset the amount of $271,952.32 from that verdict for the pleaded defence of payments of workers' compensation payments to date. This reveals the plaintiff's entitlement to a judgment amount of $749,935.68.
Costs
As the plaintiff has obtained a verdict and judgment in his favour against the defendant, it follows that he is entitled to have his costs paid on the ordinary basis, unless an entitlement to some other order can be established.
Orders
I make the following orders:
(1) Verdict for the plaintiff in the sum of $1,021,888;
(2) After offsetting from the plaintiff's verdict the defence of payments made to the plaintiff in the sum of $271,952.32, judgment for the plaintiff in the amount of $749,935.68;
(3) The defendant is to pay the plaintiff's costs on the ordinary basis, unless otherwise ordered;
(4) The exhibits may be returned;
(5) Liberty to apply on 7 days notice if further orders are required.
Decision last updated: 25 September 2012
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