Johnson v Forefront Automotive Industries Pty Ltd
[2013] ACTSC 44
•20 March 2013
CRAIG KENNETH JOHNSON v FOREFRONT AUTOMOTIVE INDUSTRIES
[2013] ACTSC 44 (20 March 2013)
PERSONAL INJURY – claim for damages – serious injury to left eye in course of employment with the defendant – physical and psychological consequences – loss of opportunity to enlist in Australian regular army – assessment of general damages and past and future loss of income earning capacity
Civil Liability Regulations 2003 (Qld)
Civil Liability Act2002 (NSW)
Dryden v Bowditch [2008] ACTSC 131
Strachan v McPhee & Daygold [2010] QSC 439
Harris v Bulldogs Club [2006] NSWCA 53
Price v State of NSW [2011] NSWCA 341
State of NSW v Moss [2000] NSWCA 133
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, 639, 643
No. SC 511 of 2008
Judge: AJ Sidis
Supreme Court of the ACT
Date: 20 March 2013
IN THE SUPREME COURT OF THE )
) No. SC 511 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:CRAIG KENNETH JOHNSON
Plaintiff
AND:FOREFRONT AUTOMOTIVE
Defendant
ORDER
Judge: Sidis AJ
Date: 20 March 2013
Place: Canberra
THE COURT ORDERS THAT:
1.Verdict and judgment for the plaintiff in the sum of $852,034.11.
2.The defendants are to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties within that period to list the matter for further argument on the issue of costs.
3.The exhibits will be retained for 28 days.
Craig Kenneth Johnson was injured on 20 April 2006 when he was working as an apprentice panel beater for Forefront Automotive Industries Pty Ltd. At the time of his injury he was instructed to change the pads on the brakes of a Mercedes Benz vehicle. His equipment was supplied by the defendant. He used a pair of long nosed pliers in an attempt to remove a spring from a brake assembly. The pliers slipped from the end of the spring and struck his left eye. At the time of the injury the plaintiff was 22 years old and he was in the third year of his four year apprenticeship. In changing the brake pads of the vehicle he was undertaking work for which he was not trained. He was using inappropriate equipment. He was not supervised and he was not wearing eye protection.
Although challenged in its defence, the defendant admitted liability at the commencement of the proceedings and the claim of contributory negligence was not pressed.
Further, there was no issue between the parties that the injury to the plaintiff’s left eye was serious and that he suffered from significantly impaired vision in that eye. The main point of contention between the parties centred on the extent to which the plaintiff’s income earning capacity was affected by his injury.
BACKGROUND
The plaintiff was born in Condobolin. He grew up on farming properties in Condobolin, Cowra and Boorowa. He attended primary schools in Cowra and Boorowa and High School in Boorowa.
From his description he was not an ideal student but he enjoyed subjects such as geography, science and maths. He participated in every ball sport that was available to him. He left school in 2002 after two weeks of Year 12. He did not obtain his higher school certificate. His intention when he left school was to join the Australian Army for which a higher school certificate was not required. He initially worked as a farm labourer. He made his first application for entry into the Australian Defence Forces in early 2002. His application was rejected for reasons that are dealt with later in these Reasons.
After this rejection, the plaintiff considered his options. He said his other significant interest was in motor vehicles. He decided to commence a four year apprenticeship in panel beating and to re-apply for entry into the Army on completion of his apprenticeship. Again a higher school certificate was not required.
The plaintiff started his apprenticeship in May 2003, initially undertaking smash repair work.
At the time of the accident he was living in Downer with his then partner. He had no children. His health was good. He had suffered some fractures to his fingers and toes but he considered that he was fit. He continued to engage in some ball sports and he maintained his fitness by running and exercising with weights at home.
THE ACCIDENT AND ITS CONSEQUENCES
The plaintiff said that after the accident on 20 April 2006 he fell onto his back and felt a heaviness in his head, followed by a rush of pain through his body. Shock gave him alternating sensations of heat and cold. When he stood he felt pain in the left side of his head and he held his hand over his eye. He knew from his boss’ reaction that there was a serious problem with his eye.
10. He was driven to Calvary Hospital within minutes and given Morphine for his pain. He understood that the surgical treatment performed at Calvary Hospital was directed primarily at attempts to save his eye and then at preserving some visual capacity. He continued on Morphine or Endone. Whilst at Calvary Hospital he looked in a mirror and was upset at the appearance of his eye that he described as:
Basically, it looked like scrambled eggs with a lot of barbeque sauce (Transcript 34.21).
11. After three days at Calvary Hospital he was transferred to the Sydney Eye Hospital where he remained for eight days in the care of Dr. Chang. The doctors there told him that his eye had been saved and that he would be able to see. They were unsure how much of his vision was lost at that stage. He returned to the care of Dr Dickson in Canberra.
12. Later in 2006 Dr. Dickson suggested that he use a contact lens to aid his vision. The lens was fitted in December 2006 and he was worn it since. He was not wearing the lens at the time of the hearing because he lost it when swimming two weeks before.
13. At the time of the accident the plaintiff had been in a relationship with his partner for five years. He moved with her to Canberra because of the greater opportunities for panel beating work that were available there. The relationship was a strong happy one.
14. They separated in mid 2007. The plaintiff blamed himself for the termination of the relationship. He said that after his accident he was in pain and he became self pitying. He had no confidence and he went nowhere. He did not wish to see people and he pushed away friends who tried to help him. He was drinking to excess during the day when he was alone at home.
15. His partner was unable to tolerate this change in him. She and other friends suggested that he seek assistance but he refused to acknowledge that anything was wrong. The plaintiff said he reduced his alcohol consumption when he returned to work in December 2006 but continued to drink heavily until he met his current partner in late 2007. He continued in that relationship to the present date, describing his partner as: My saving grace (Transcript 42.17). They had three children born in August 2008, July 2011 and January 2013.
16. On 29 January 2008 the plaintiff was involved in a motor vehicle accident when the car he was driving crashed into a tree trapping his female passenger. The concentration of alcohol in his blood on this occasion was 0.150. At the time of this accident, his licence was suspended because he failed to respond within time to a driving infringement notice. On 23 April 2008 he was convicted on the drink driving charge, fined and disqualified from driving for six months. On the charge of driving when his licence was suspended, he was fined and disqualified from driving for 12 months. The disqualification periods were cumulative so that he was unable to drive for 18 months.
17. In mid 2008 the plaintiff moved with his family to Orange. In about April 2012 he and his partner decided to move the South Coast. After checking where work was available they settled in Nowra.
18. The plaintiff was 28 years old at the time of the hearing. His partner was not income earning as she was fully occupied with the couple’s children. They lived in rented accommodation, the cost of which consumed more than one third of the plaintiff’s net weekly income.
19. The plaintiff said he was no longer depressed. He said that after the night of his motor vehicle accident in January 2008, his current partner, who was by then pregnant, said she was leaving him. He was prompted by this threat to take charge of his emotional state and to reduce further his consumption of alcohol. The plaintiff maintained that alcohol was no longer a problem for him, although he continued to drink up to several beers daily after work and occasionally more at weekends.
20. He continued to be anxious about the potential for injury to his right eye and the consequences to his income earning capacity and the effect that an injury to the right eye would have on his family. The plaintiff said that he played ball with his four and a half year old son, who was better able to catch the ball. He was self conscious about the appearance of his eye. He said it sat at an angle and the pupil was misshapen. For this reason he tended to look sideways at people rather than directly. He said people stared at him and he stayed out of the centre of attention at social functions.
21. Doctors suggested to him that it would be possible to implant surgically a permanent lens. Although this would overcome some of the inconveniences of his contact lens, the disadvantage was that the implanted lens would offer less satisfactory vision. In addition there were the obvious risks to the right eye of the surgery itself. The plaintiff was not currently inclined to undergo surgical lens implant.
22. The plaintiff said the condition of his eye was currently stable. He was concerned about advice given to him that it might deteriorate over time. He was particularly worried that change might affect his right eye.
23. Aside from the visual impairment, the plaintiff’s major ongoing problems related to depth perception and double vision. He said that both of these problems were assisted but not entirely overcome by means of the contact lens.
24. He complained of a recently developed problem with ladders and steps. He said that problem was greater when descending, rather than ascending and he held onto a stair rail or other structure when it was available. He first noticed these problems about 12 months ago. He also said that he noticed on a few occasions, when walking on a concrete path, it felt as if the path was not there, causing him to stumble.
25. For a period he had not been allowed to exercise with weights but from 2009 he continued to attempt to maintain his fitness by running and exercising with weights. He no longer engaged in any ball sports.
Medical Evidence
26. Dr. Delaney and Dr. Steiner, ophthalmic surgeons, agreed that the plaintiff suffered a penetrating injury to his left eye that resulted in corneal scarring, a traumatic iridectomy and traumatic cataract that was removed. He had vitrectomy surgery and he had fine scarring involving the retina at the posterior pole of the left eye.
27. They agreed that the result of the plaintiff’s injury was that he suffered from poor vision, loss of depth perception and some double vision or diplopia. They reported that vision in the plaintiff’s left eye was significantly improved with the use of a contact lens.
28. Dr. Delaney reported that the plaintiff was unable to use spectacle correction because of the severe imbalance caused by the loss of the natural lens of his eye. He could tolerate the use of a contact lens with which he obtained reasonable vision.
29. Dr. Delaney suggested that the plaintiff would benefit from the insertion of a secondary intra-ocular lens, thus alleviating the need to wear a contact lens. He said this would provide for permanent improvement in vision in the left eye. At the same time an artificial iris could be inserted to assist in reducing glare intolerance. Dr. Delaney assessed a cost of these procedures at $4,800.
30. Dr. Steiner said that the implants suggested by Dr. Delaney were technically possible. He noted however that the plaintiff was managing well and said that, in view of the risks associated with surgery, in his opinion it was better to leave things as they were.
31. Dr. Delaney said that the plaintiff’s vision without his lens was so poor that he was unable to see the top line on the ophthalmic chart or the largest headlines in a newspaper. He said that the proposed surgical implant would not completely restore his vision. After surgery the plaintiff would continue with a 70-80% impairment of vision as the best outcome. He said that there was a risk in the surgery that he proposed that the plaintiff’s vision could become worse.
32. He accepted that the plaintiff’s symptoms of varying double vision or diplopia were genuine and that they were worse when he was not wearing his contact lens. He explained that the plaintiff had virtually no binocular vision. For this reason it was not wise for the plaintiff to work at heights and if he did so, he should exercise great caution. He agreed that it was reasonable that the plaintiff exercise caution to protect his right eye.
33. Dr. Steiner also identified a number of risks that faced the plaintiff as a result of his injury. He listed them as secondary glaucoma, retinal detachment and cystoid oedema of the macular. He said that there was also a very small risk of sympathetic opthalmia that could severely affect the vision in the other eye.
34. Dr. Delaney agreed that the plaintiff was at greater risk than the general public of developing secondary glaucoma. For this reason, he required annual ophthalmic examination to exclude the development of glaucoma. At the time of his report, that is in August 2012, Dr. Delaney thought that the significance of the other risks identified by Dr. Steiner was decreasing with the passing of time and he considered those risks remote.
35. Dr. Delaney was asked about the plaintiff’s evidence that in the last 12 months he had noticed difficulty in descending ladders and stairs. Dr. Delaney said this was consistent with his injury. He said that persons with an injury such as that suffered by the plaintiff frequently adapted and their symptoms decreased. Sometimes the reverse occurred and they experienced decompensation in the adaptation process. There were various reasons for this, such as changes in general health, emotional well being and vision. He said that sometimes there was no obvious reason for these definite changes in depth perception and stereopsis.
36. Dr. Knox, psychiatrist, assessed the plaintiff in October 2010. This was at a time when the plaintiff was disenchanted with his work as a panel beater and with the low level of income that it provided him. He was then considering his options, including the commencement of an electrical apprenticeship.
37. Dr. Knox noted the plaintiff’s description of his life following his accident and his isolation, anger at his situation and loss of self esteem as well as anxiety about his future. He noted that the plaintiff resorted to the heavy use of alcohol and that he was prescribed Zoloft for 12 months with minimal benefit. He said the plaintiff’s depression increased at the time of the episode of viral meningitis in 2007.
38. Dr. Knox diagnosed a Major Depressive Disorder and an Adjustment Disorder with anxiety for much of the two years after his injury. He said these disorders were the consequence of the injury. He also said that the plaintiff had recovered by the time of his assessment and he required no treatment.
LOSS OF INCOME EARNING CAPACITY
39. After a period of recovery and rehabilitation, the plaintiff returned to work on 19 December 2006 on light duties. In early 2007 he returned to full duties with some restriction on lifting heavy weights.
40. The completion of his apprenticeship was delayed by one year until January 2008 because he was required to repeat the year lost through injury. On 19 May 2008 the plaintiff was issued with a certificate recognising his qualification. In July 2008 the plaintiff left his employment with the defendant.
41. This was at the time when he moved with his family to Orange. He obtained employment there as a panel beater and stayed in this employment until mid 2009 when he left to set up a detailing business in Orange. After closing down the detailing business, he commenced a linesman’s course in Orange. This would have involved a period of retraining with prospects of improvement to his income. This attempt at retraining was short term. The plaintiff left after a disagreement with his supervisor and for reasons unrelated to his eye injury.
42. In early 2010 the plaintiff found a second panel beating job in Orange.
43. He started work as a panel beater in Nowra on 2 April 2012. He continued in that employment to date earning $804.00 net per week.
44. Throughout this period the plaintiff experienced problems with depth perception and double vision when lining up panels of vehicles, joining wires, soldering, welding and grinding. He gave an example of his difficulties in the following terms:
Basically, if I have a soldering iron in my right hand and I have the two wires in that hand, I find it takes me a fair while to find what I am trying to repair. Or I will go past it or – Yes, it starts to get a bit hard (Transcript 38.34).
45. He said his work also involved beating panels and he had difficulty checking to confirm that the panels were perfectly smooth.
46. He wore safety goggles at all times at work to protect against the risk that he might injure his right eye.
47. Notwithstanding his difficulties the plaintiff agreed that he undertook the full range of his duties as a panel beater.
48. The plaintiff became disenchanted with panel beating as a career in 2009. He said he did not enjoy the smash repair work that he was doing. When he commenced his apprenticeship he had envisaged that he would be undertaking restoration work on older vehicles and little of this work was available. The demands of insurers on smash repair costs meant that his wages were modest with no prospect of improvement unless he was able to commence his own business.
49. The plaintiff therefore started to consider his options. He applied a second time for entry into the Australian Defence Forces. The application was rejected because of the condition of his left eye. His first attempt at other work was when he set up his own business as a detailer in mid 2009. He established this business with his partner. The business involved the detailing of new and used cars for car yards in Orange. The plaintiff said that his impaired vision presented him with problems with smaller detailing aspects of the work. These were areas attended to by his partner. He and his partner closed down the detailing business when car yards in Orange decided to do this work in house for less cost, The plaintiff said that he set up this business because it provided him with a greater income rather than because he preferred it to panel beating.
50. The plaintiff said he was confident that he would be able to climb when he started work as a linesman. He was not required to test his capacity to climb because, until he left the work, he was lifted in a cherry picker. He acknowledged that during the training period of several years his income would not have been improved. He said that he was looking to increase his skills and do something new. As already noted, this employment was short term, the plaintiff leaving after six weeks following an argument with his supervisor.
51. The plaintiff agreed that when he returned to work with the defendant he was kept on and no special allowance was made for him as a result of his eye injury. He agreed that he undertook his work well enough to complete his apprenticeship. He agreed that he had no difficulty in finding work in Orange or Nowra. He disclosed his injury to all of his employers. They had no concern and after the usual period of probation in each case he was kept on.
52. Mr Fuller was a director of the defendant company. He did not directly supervise the plaintiff during his period of his employment with the defendant. This was done by his panel shop floor manager. Mr Fuller said that after the injury there were some depth perception issues but generally the plaintiff’s work was acceptable. He said that, if the plaintiff had not chosen to leave, he would have continued to employ him.
53. He confirmed that the plaintiff’s current income of about $800 net per week was that which might be expected by an experienced panel beater.
54. Mr Fuller agreed that, if two persons presented to him with identical qualifications, he would employ the person who did not have visual problems of depth perception and double vision. Mr Fuller also agreed that insurance companies controlled the prices of work involved in smash repair and this control was depressing the amount that could be paid in wages to panel beaters. He did not agree that a really good panel beater was limited to a wage of $800 per week net.
55. The plaintiff said that he enjoyed his current work in Nowra. He had been in this position for ten months and 60% to 70% of the work involved restoration of older model cars, so that he: ... makes them as pretty as a picture – straight as an arrow (Transcript 49.15). The plaintiff said that this was precision work and that he had ongoing problems with fine detail.
56. Both Dr. Delaney and Dr. Steiner agreed that the plaintiff’s work as a panel beater was affected by his injury. Dr. Steiner noted that he was slower in undertaking his work and that his employer tolerated this. Dr. Delaney said that the plaintiff was fit for most forms of work that a one eyed person could do. He said he would have difficulty judging fine binocular vision and stereopsis, features that were reflected in his difficulty in carrying out high quality work as a panel beater. He said that the plaintiff should take additional care when working at heights or near moving machinery.
57. Dr. Knox recommended that the plaintiff undergo occupational assessment or vocational guidance to deal with his expressed dissatisfaction with his career as a panel beater.
58. Dr. Barold, occupational physician, undertook an occupational assessment of the plaintiff in October 2010. At that stage the plaintiff was considering retraining as an auto electrician. Dr. Barold advised against it, suggesting that it could be dangerous. He recommended that the plaintiff be retrained into work of a more sedentary nature and he recommended that the plaintiff undertake formalised vocational and functional assessments and that he be provided with assistance with job seeking. He said the plaintiff’s injury had negatively impacted on his capacity to work and had impaired his past and future income earning capacity.
Assessment of the loss
59. From this chronology it was apparent that aside from the period of recovery from his injury between 20 April 2006 and his return to work 19 December 2006, the plaintiff had no period of unemployment that was attributable to the eye injury. On the face of it, therefore, the plaintiff suffered little by way of income loss to the date of the hearing and his prospects of continuing employment in the panel beating industry appeared to be sound.
60. It was on this basis that the defendant suggested a moderate buffer to compensate the plaintiff for any disadvantage that he might face in the market place.
61. The plaintiff claimed a significant loss through the loss of an opportunity for a career as a regular soldier in the Australian Army.
62. The plaintiff joined the cadet corps at his high school at the age of 13. The plaintiff said that he had a long term interest in military matters in which he was influenced by his grandfather who spoke to him about his period of service in Korea. The plaintiff attended Anzac Day marches with his grandfather and as a member of the cadet corps. He remained in the cadet corps until leaving high school. The corps trained weekly in Boorowa and joined with platoons from Cowra, Young and Grenfell once or twice a year for various activities, including bivouacs, rotating between the towns. On occasions persons enrolled in the regular Army attended these activities.
63. He also attended nine-day camps annually at Singleton with students from throughout NSW numbering into the thousands. He camped in the bush, undertook military exercises and handled firearms with live ammunition. The plaintiff enjoyed all of these activities and was very much attracted to military life.
64. After leaving school in 2002 his intention was to join the Australian Army. He was encouraged in this intention by his grandfather and his platoon leader at Boorowa. After an initial period working as a farm labourer, the plaintiff in early 2002 made his first application to the Australian Defence Forces for entry into the Army. He was medically examined and completed the necessary paperwork. He was accepted into training. In May 2002 the plaintiff was convicted of driving with greater than the prescribed concentration of alcohol in his blood stream. At that stage he was driving with “P” plates and the permissible level of alcohol was limited to 0.02. His reading was 0.06. He was convicted, fined and disqualified from driving for three months.
65. The plaintiff acknowledged that this was a misjudgement on his part. The consequence of it was that the Defence Force Recruiting Organisation wrote to the plaintiff on 9 September, 2002 advising him that the conviction reflected a pattern of behaviour that was unacceptable for members of the Australian Defence Force which regarded honesty, integrity and self discipline as matters of paramount importance. The letter went on to suggest that if the plaintiff remained free from any further convictions for a period of at least 12 months, he might re-apply.
66. Having received this letter, as already noted, the plaintiff looked to work with motor vehicles, his other area of significant interest, and he commenced his apprenticeship as a panel beater. He said at that stage;
I had my sights set, I knew what I wanted to do. It was just – yes – one night and one slip up that cost me (Transcript 26.42).
67. The plaintiff said that he never abandoned his intention to join the Army. He agreed that at no stage did he apply to join the Army Reserve after leaving school. He did not re-apply when he qualified as a panel beater in 2008. He denied that he lost interest in the Army when he started his panel beating apprenticeship. He denied that he no longer wanted to join the Army when he finished his apprenticeship. He said he was very much discouraged from doing so by his eye injury.
68. The plaintiff was not concerned that as a regular soldier he might have to relocate his family at regular intervals. He was also not concerned that he might be posted overseas or injured if he was required to engage in combat whilst in the Army. He discussed these matters with his partner who fully supported him.
69. Had he been accepted into the Army his preferred area would have been to join the Armoured Corps.
70. The plaintiff in fact made a second application to the Australian Defence Forces in February 2009. He attended for medical examination and was told that he would not be accepted because of the condition of his left eye. He said he was not optimistic about his prospects at the time of this application but he retained a glimmer of hope.
71. The defendant’s counsel raised with the plaintiff a number of factors that he submitted would have lead to the rejection of his second application.
72. The plaintiff did not think that the second conviction for driving offences that he committed in January 2008 would destroy his prospects of entry into the Army entirely. He accepted that he might once more have been told to wait and re-apply if he were conviction free.
73. The second area of challenge was the manner in which the plaintiff completed a medical history as part of his application. He answered in the negative to questions concerning dizzy spells, fainting or black outs or frequent or severe headaches or migraine.
74. The plaintiff’s medical records disclosed that he suffered from an illness described as viral meningitis in 2007. His symptoms at the time were a two week period of headaches, three episodes of fainting accompanied by fading vision, pallor, sweating and palpitations. Part of Exhibit 1 comprised a report from Dr James Riddell, consultant general physician, dated 28 March 2007, in which he detailed the investigations that were undertaken at his direction. These included a CT scan of the brain, a CT venogram, a lumbar puncture and an MRI/MRV of the brain. Aside from the finding of what was probably a congenitally small blood vessel, there were no abnormalities. The plaintiff clearly recovered from this illness with appropriate treatment.
75. The plaintiff explained that he had not reported headaches and dizziness or migraine when he made his second application to the Australian Defence Forces because, aside from this short term illness, he did not suffer from any of these symptoms. He agreed that he did not report the episode of meningitis.
76. Further, although the plaintiff by 2009 was aware that he used alcohol to deal with what he described in evidence as depression, he replied in the negative to the question of whether he suffered from depression or drug and alcohol dependency.
ASSESSMENT
General Damages
77. The plaintiff claimed general damages in the sum of $250,000.00. The defendant submitted that the plaintiff appeared to have adapted well to his injury and that, with the assistance of the contact lens, his binocular vision was sufficiently improved to allow him to drive and otherwise lead a full and happy life. The defendant also suggested that the plaintiff’s disappointment at the loss of opportunity for an Army career should be dealt with as part of his general damages. The defendant proposed that general damages in the region of $100,000.00 to $125,000.00 would be adequate.
78. The plaintiff was forthright and honest in giving his evidence. He made concessions against his interests. I therefore accepted him as a witness of credit and decided that I should accept his evidence concerning the circumstances of his injury and his consequences to his enjoyment of life.
79. Those consequences included the following:
1) A period of pain and trauma at the time of the injury and treatment and anxiety concerning the question of whether the eye could be saved and, if it were saved, the extent to which he would retain vision in the injured eye.
2) The period during which he became isolated and suffered from the depressive and adjustment disorders described by Dr. Knox. He attempted to overcome these disorders through the use of alcohol and ultimately did overcome them with the support of his current partner.
3) The breakdown of his five year relationship with his former partner arising out of the deterioration in his mental health and consequent excessive use of alcohol.
4) The ongoing anxiety and concern about the risks identified by the ophthalmic surgeons to which his injured left eye is susceptible.
5) The ongoing anxiety and concern about injury to the right eye and the obvious catastrophic consequences that would result from injury to that eye.
6) The inconvenience and discomfort arising out of the need to use the contact lens.
7) The continuing and permanent problems arising from interference with depth perception, diplopia, insensitivity to glare and the involuntary closing of the left eye.
8) His self consciousness about the appearance of his eye.
9) His inability to engage in contact or balls sports and the need to exercise caution when playing with his children.
75. The defendant referred me to a number of authorities said to provide a guide to the appropriate level of which the plaintiff should be compensated. I did not find these authorities particularly helpful.
76. In the matter of Dryden v Bowditch [2008] ACTSC 131 the injury to the plaintiff’s eye appeared to cause limited damage to her vision.
77. In Strachan v McPhee & Daygold [2010] QSC 439, it was clear that the assessment of the plaintiff’s damages was constrained by reference to an injury scale value provided for in the Civil Liability Regulations 2003 (Qld) pursuant to which moderate awards of general damages were available.
78. In Harris v Bulldogs Club [2006] NSWCA 53, the NSW Court of Appeal disposed of the appeal on the basis of liability and it was not necessary that they review the trial judge’s assessment of the plaintiff’s damages. However in that case the trial judge was constrained by the limits on the awards of non-economic loss provided for in the Civil Liability Act2002 (NSW).
79. In Price v State of NSW [2011] NSWCA 341, the NSW Court of Appeal did not deal in detail with the medical evidence concerning the nature of the injury to the plaintiff’s eye, nor did it deal in detail with the manner in which the trial judge arrived at the assessment for non economic loss provided for in the Civil Liability Act 2002 (NSW). The trial judge assessed general damages on account of the plaintiff’s loss of sight in his left eye at 30% of a most extreme case and awarded $88,500.00. If a similar assessment were to be made after 1 October 2012 then that plaintiff would have been awarded 23% of $535,000.00 or $123,050.00. If the plaintiff was awarded the full 30% of the maximum that might be awarded under the NSW legislation then the award would have been $160,500.
80. On this basis I considered that the sum suggested by the defendant under estimated the value of the compensation to which the plaintiff was entitled.
81. Taking account of the factors that I have listed together with the plaintiff’s still relatively young age of 28 years and his prospects of many more years of discomfort and disability arising out of his injury I assessed his general damages of $200,000.00 I apportioned 40% to past pain and suffering and 60% to the future and allowed $11,200.00 in interest on general damages.
Loss of Income Earning Capacity
82. The plaintiff’s claim for loss of income earning capacity was substantial and depended upon my findings concerning his prospects, firstly of gaining entry into the Australian Army, and, secondly, his prospects of gaining promotion during a career in the Australian Army.
Entry into the Army
83. On one view the evidence suggested that it was unlikely that the plaintiff would have been accepted into the Australian Army. He did not reapply after 12 months as suggested by the Australian Defence Forces in 2002. He did not at any stage pursue his interest in the military by joining the Army Reserve.
84. Most significantly he was convicted in April 2008 for driving offences that were much more serious than that for which he was convicted in May 2002. On this basis it could well be argued that he was even less likely to be regarded by the Australian Defence Force recruitment officials as a person having the paramountly important characteristics of honesty, integrity and self discipline.
85. Notwithstanding these negative factors I considered that the correct approach to the determination of the plaintiff’s likely career path was to review his situation at the time of his injury. In this respect, but for his injury, he would have completed his apprenticeship in 2007. At that time he would have demonstrated to the Australian Defence Force Recruitment Officials that he had the commitment and maturity to complete a four year apprenticeship. He held a trade qualification that potentially held value to the Army were he to be recruited into the Armoured Corps.
86. Further the plaintiff was 22 years old, fit, single and without dependents. He had passed his medical examination in 2002 and there was nothing in his medical history to indicate that he would not do so in 2007. In 2007 he had no further history of breaches of the law.
87. I have already noted that the plaintiff said that at the commencement of his apprenticeship he had his sights set on entering the Army when his apprenticeship was completed.
88. Added to this was the plaintiff’s statement that, when he made his second application to the Australian Defence Forces after his injury and after his second conviction, he remained with a glimmer of hope that he could gain acceptance into the Army.
89. I was persuaded by the positive factors listed above and by the transparency of the plaintiff’s evidence and his obvious honesty to accept that it was highly probable that he would have proceeded to a career as a regular soldier in the Australian Army.
The Calculation of the Loss
90. The plaintiff’s claim for past and future loss of income earning capacity was calculated by reference to documents appearing at pages 228-231 of Exhibit C. These documents set out, amongst other things, permanent pay rates and allowance rates for Australian Defence Forces at various ranks as at 8 November 2012. A note to the first page of the documents suggested that the information was sourced from a brochure and that it was provided as a guide only.
91. The plaintiff’s claim from income loss was calculated on the basis that by the time of the hearing he would have obtained the rank of Lance Corporal, that in 2014 he would have been promoted to a Corporal and then in four yearly increments to the rank of a Sergeant and to that of a Warrant Officer Class 2 to the date of his retirement.
92. His date of retirement was set at 70 years, the proposition being that, even if the plaintiff retired from the Army before the age of 70, this would have represented his income earning capacity up to retirement age, likely to be 70 years by the time the plaintiff reached that point in his life.
93. Although the defendant allowed this material into evidence without challenge to its admissibility, it submitted that the rates and allowances listed in it had not been proved by evidence from any officer of the Australian Defence Forces as to how they might be applied or to the criteria that applied in assessing the prospects that the plaintiff might have been promoted. The defendant described the figures as an ambit claim and I agreed that they fitted into this category. The plaintiff accepted that there were anomalies in the figures and reduced his claim from the amounts stated in the particulars and Exhibits F and G for past loss to $116,000.00 and for future loss to $450,000.00.
94. I was not concerned that these figures and rankings were not the subject of formal proof. I regarded them as indicative only of the income that the plaintiff might have expected to earn when, as I have already found to be probable, he was accepted into the regular Army.
95. I was satisfied from the explanation provided that the salary and allowances for medical care, housing and separation set out in the particulars were properly calculated by reference to these figures.
96. Both parties referred me to the reasons of Heydon JA in State of NSW v Moss [2000] NSWCA 133 in which he made it clear, by reference to multiple authority, that precise or even any evidence of damage to income earning capacity was not always essential to an assessment of compensation for diminution in earning capacity.
97. Justice Heydon said, by way of reminder at [71];
... Strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. ... It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.
98. Justice Heydon went on in the same paragraph to refer to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 where Brennan and Dawson JJ, at 639, said:
The ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.
99. He also noted that the majority Dean, Gaudron and McHugh J J said at 643:
... that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain.
Justice Heydon also took account of decisions where it was acknowledged that compensation for loss of income earning capacity at times involved speculation or the provision of sketchy or no evidence of potential earning capacity. He said at [86] - [87];
... But in many instances substantial damages have been assessed for impaired earning capacity despite an absence of evidence about earnings and an inability to take judicial notice of them.
In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not opened to the court to abandon the task and the want of evidence does not necessarily result in non recovery of damages. ... The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes, even though the likelihood of any particular outcome being achieved maybe no more than a real possibility.
In this case, for the reasons already stated I concluded that there was a high probability that the plaintiff would have been accepted into the Australian Army as a regular soldier. I took into account the characteristics he displayed of resilience in the face of adversity, his capacity to acknowledge and deal with the deterioration of his mental health and his excessive use of alcohol, his commitment to completing his apprenticeship and the evidence of Mr Fuller that notwithstanding the effect of his injury on his workmanship, he was a valued employee.
These characteristics coupled with the honest aspects of his personality that the plaintiff displayed while giving evidence satisfied me that he had real prospects of advancement to a higher rank within the Army.
The speed and extent to which he would have advanced remained, of course, matters of speculation and evidence from a witness experienced in this area might well have assisted the plaintiff. In its absence and notwithstanding the plaintiff’s positive attributes, I considered the scenario advanced on his behalf to be overly optimistic and I decided that a significant discount of one third should be applied to both the figures for past and future loss of income earning capacity.
The sums allowed in respect of the lost opportunity of an Army career were therefore
$77,500.00 for past income loss and $300,000.00 for the future. In addition I allowed the plaintiff’s total loss during the period of recovery from injury. I calculated this to be a period of 34 weeks at the rate of $407 per week totalling $15,980.
The plaintiff abandoned his claim for any further allowance for vocational and functional assessment.
For the reason that it was clear that the plaintiff was unlikely to undergo surgical lens implantation, I made no allowance for income loss during any period of recovery from that surgery.
The defendant did not challenge the claim for 20% of the plaintiff’s net loss as the appropriate figure to be applied in calculating his superannuation loss. I therefore allowed for the past the sum $17,258.00 and for the future the sum of $60,000.00. I allowed interest on the past loss for six years at 9% in the sum of $9,319.00.
The Fox v Wood component was allowed in the sum claimed of $1,760.61.
Domestic Assistance
The plaintiff’s claim for past and future domestic assistance was substantially reduced having regard to his evidence that he was able to undertake his share of housework without restriction and that he did not mind mowing his lawn or using the whipper snipper and that he dealt with his concern that his right eye might be damaged by items flying from the machinery by wearing safety goggles.
He did complain however of difficulty in undertaking handyman work where he was required to use a ladder. The instance he gave was his attempt to clean the gutters at his home, where he became disorientated on the ladder because of his problems in perceiving the distance to the ground.
The result was that I assessed his claim for domestic care on the basis that he clearly required some assistance during the period of recovery from his injury but there was little evidence to support a claim for the provision of ongoing voluntary care services.
Having regard to the plaintiff’s evidence that he required minimal assistance after the initial recovery period, I considered that $5,000 was a reasonable sum to allow for the voluntary services provided to him immediately after his injury. I allowed $3,150 for interest on the amount allowed for past domestic assistance. For the future I considered the claim of $5,000.00 to be a reasonable sum to meet the plaintiff’s requirement for the occasional assistance of a handyman and I allowed that sum.
Out of pocket expenses
Past out of pocket expenses were agreed in the sum of $23,907.20.
As I have already noted, I considered that it was improbable that the plaintiff would have surgery for the implantation of a lens and I made no allowance for the cost of this surgery.
I noted his evidence that he replaced his contact lens annually, but that having recently lost his lens, he did not have the funds to replace it. I therefore considered that having regard to the requirement to meet the expense of two contact lenses per annum at $275.00 per lens, cleaning solution, protective goggles, sunglasses against glare intolerance, medication, consultation with his general practitioner and his specialist, the sum of $35,000.00 claimed for future out of pocket expenses was reasonable and I allowed that sum.
SUMMARY:
There will be judgment for the plaintiff in the sum of $831,054.11 calculated as follows:
General Damages $200,000.00 Interest on $80,000 @ 2% x 7 years $ 11,200.00 Income Loss Past: 20.4.2005 - 6.12.2005 x 34 weeks x $407 $ 15,980.00 1.1.2007 – present $77,500.00 Interest on past income loss
at 9% x 6 years$ 50,479.00 Future Income Loss $300,000.00 Superannuation Loss Past: 15,980 x 11% $ 17,258.00 $77,500 x 20% $ 15,500.00 Interest on past superannuation $ 9,319.00 Future: $ 60,000.00 $300,000 x 20% Fox v Wood $1,760.61 Domestic Assistance Past $5,000.00 Interest on past assistance $3,150.00 @ 9% x 7 years Future $5,000.00 Out of Pocket Expenses Past $23,907.50 Future $35,000.00 Total $831,054.11
ORDERS
Verdict and judgment for the plaintiff in the sum of $831,054.11.
The defendants are to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties within that period to list the matter for further argument on the issue of costs.
The exhibits will be retained for 28 days.
My reasons are published.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: Chanel Schultz
Date: 20 March 2013
Counsel for the Plaintiff: Mr A. J. Bartley SC, Mr F. Tuscano
Solicitor for the Plaintiff: Ken Cush & Associates
Counsel for the Defendant: Mr G. B. Evans
Solicitor for the Defendant: King & Wood Mallesons
Date of hearing: 11 February 2013
Date of judgment: 20 March 2013
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