Kent v REDHEAD

[2017] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

KENT v REDHEAD

[2017] SADC 55

Judgment of His Honour Judge Soulio

26 May 2017

DAMAGES - GENERAL PRINCIPLES

Plaintiff claims damages against the defendant arising out of injuries sustained by him following an altercation with the defendant during which the defendant assaulted the plaintiff at his workplace - defendant convicted of assault causing harm after plea of guilty - plaintiff obtained default judgment in within proceedings - damages assessed.

Judgment for the plaintiff in the sum of $815,624.03.

Bankruptcy Act 1966 (Cth) ss 60, 82; Workers Rehabilitation and Compensation Act 1986 (SA) s 35A; Civil Liability Act 1936 (SA) ss 52, 58, referred to.
Coventry (as trustees of the Mike and Lyn Coventry Family Trust) & Anor v Charter Pacific Corporation Ltd & Anor (2005) 227 CLR 234; Fox v Wood (1981) 148 CLR 438; Wade v Allsopp (1976) 10 ALR 353; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118; Medlin v Sate Government Insurance Commission (1995) (1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138; Bresatz v Przibilla (1962) 108 CLR 541; Campbell v Nangle (1985) 40 SASR 161; Fitzgerald v Goonan [2000] SASC 332; Van Gervan v Fenton (1992) 175 CLR 327, considered.

KENT v REDHEAD
[2017] SADC 55

Introduction

1. On 4 January 2012 the plaintiff was working as a building supervisor at the Queen Elizabeth Hospital site in Woodville. The defendant was a fellow employee of the plaintiff. The defendant telephoned the plaintiff and said that he was on his way to the Queen Elizabeth Hospital site, and wanted to meet with the plaintiff. The defendant wished to confront the plaintiff regarding allegations the plaintiff had apparently made about the defendant’s treatment of the defendant’s wife.

2. The plaintiff and defendant met in the car park of the Queen Elizabeth Hospital premises. The defendant immediately struck the plaintiff to the left side of his head, knocking the plaintiff to the ground. A struggle ensued. The plaintiff got the better of the defendant and held him down. Thereafter the plaintiff released the defendant, having formed the view that the defendant had sufficiently calmed himself, whereupon the defendant again punched the plaintiff to the left side of his face before driving away from the premises. Following the assault the plaintiff was taken by Queen Elizabeth Hospital staff to the emergency department for treatment. The plaintiff suffered injuries to which I will later refer.

3. On 31 January 2014 in the Magistrates Court the defendant was convicted of the offence of assault causing harm.

4. The plaintiff instituted the within proceedings on 17 December 2014. A default judgment was entered on 19 August 2015, in favour of the plaintiff, for damages to be assessed, the defendant having failed to file a defence.

5. Ultimately the defendant elected to represent himself at trial, having declined to challenge the entry of judgment in default. He agreed to the tender of affidavit evidence on behalf of the plaintiff, together with documents including expert and medical reports, which I received into evidence and to which I will refer as necessary.

   A Preliminary Issue

6. The defendant was declared bankrupt in October 2011 and the Official Trustee in Bankruptcy was appointed on 5 November 2014.

7. The plaintiff’s solicitors asserted that the plaintiff’s claim fell within the provisions of s 82(2) of the Bankruptcy Act 1966 (Cth), in that it was not a provable debt in bankruptcy.

8. The plaintiff’s solicitors wrote to the Official Trustee in Bankruptcy by letter of 25 August 2015 inquiring as to whether the Official Trustee wished to take an action to suspend legal proceedings pursuant to s 60 of the Bankruptcy Act. The Official Trustee declined to elect, pursuant to s 60 of the Bankruptcy Act, to stay the action, on the basis that the proceedings were not brought by the bankrupt and therefore the Official Trustee was not required to make such an election.[1]

   [1]    Exhibit P1 p 466 – Letter from Australian Financial Services Authority dated 4 September 2015.

9. Given that s 82(2) provides that “Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy” I am satisfied that the plaintiff’s right to pursue his claim for tortious damages is available.[2]

   [2]    Coventry (as trustees of the Mike and Lyn Coventry Family Trust) & Anor v Charter Pacific Corporation Ltd & Anor (2005) 227 CLR 234 at [71] per Gleeson CJ, Gummow, Hayne & Callinan JJ.

   Plaintiff’s Background

10. I received into evidence the plaintiff’s unchallenged affidavit.[3] At the time of the incident giving rise to the claim the plaintiff was 42 years old having been born on on 12 May 1969. He was educated to year 10, and left school at the age of 15 years. He then worked as a storeman at Queenstown Fodder for one year, and then as a labourer for a building business for some three years. In 1989 he commenced work for PJ Ceilings, a firm engaged in the construction industry. He developed skills as a roofer and gyprocker. He remained there for one year before taking up work as a gyprocking and roofing subcontractor. He continued to work in that industry developing further skills in installing steel stud and plaster board walls, and reading design plans during his subsequent employment with Pipeline Ceilings, where he remained for some five years. He then worked as a subcontractor and building supervisor for Adelaide Fibres, performing similar duties, but also supervising staff and signing off on completed work.

    [3]    Exhibit P1.

11. In 2006 the plaintiff took up employment with Adelaide Partitions and Ceilings, his employer at the time of the subject incident. The principal of that company was the principal of his earlier employer, PJ Ceilings, for whom he had worked some 17 years earlier. He was employed by Adelaide Partitions and Ceilings on a casual contract and initially paid an hourly rate of $33 per hour together with allowances for a mobile phone, and had the private use of a company vehicle. At the time he suffered injury he was working between 30 and 45 hours per week performing duties including supervising employees, rostering employees, ordering materials and delivering goods, and supervising the quality of the work performed. When working on smaller jobs he also performed labouring duties, including assisting with roofing work, and deliveries.

    The Incident

12. The plaintiff described the subject incident.[4] He said that upon meeting with the defendant in the front car park of the Queen Elizabeth Hospital, the defendant, without warning, punched the plaintiff to the left side of the head, knocking his hard hat and safety glasses off, and causing him to fall to the ground. The plaintiff said he felt groggy and dazed. He landed on his outstretched left hand in an attempt to break his fall, and experienced immediate pain in the left wrist. The defendant attempted to punch him again, and he wrestled the defendant to the ground and managed to pin him down. He said that he believed the defendant had calmed down, and released him, whereupon the defendant again punched him to the left side of the face and then left.

    [4]    Exhibit P1 p 3 at [13]-[17] – Affidavit of Plaintiff dated 3 February 2016.

13. Two hospital security guards and an orderly attended. They placed the plaintiff in a wheelchair, and wheeled him to the emergency department of the Queen Elizabeth Hospital. He was experiencing pain in his face, double vision in his left eye, pain in his left wrist and a cut to his left palm, together with pain in his right knee and a cut to that knee.

14. The plaintiff suffered fractures of the jaw, cheek bone and eye socket. He declined remedial surgery and the fractures were managed conservatively. He was required to wear a back slab cast on his left arm, and was discharged the same day.

    The Plaintiff’s Disabilities and Impact on Employment

15. By the time of review on 25 January 2012 the injuries to the plaintiff’s right knee, and the double vision in his left eye, had resolved. A diagnosis was made of a fracture of the second metacarpal base of the left hand, which nevertheless, at that stage, required only conservative management by use of a splint. The plaintiff underwent hand therapy as an outpatient at the Queen Elizabeth Hospital, but was experiencing ongoing pain and restriction of the left wrist.

16. The plaintiff consulted an orthopaedic surgeon, Dr Sood, and a subsequent x-ray and CT scan[5] revealed a severe fracture dislocation of the left wrist. Dr Sood recommended remedial surgery. On 26 March 2012 the plaintiff underwent arthroscopic surgery of the left wrist, at which time pins were inserted into the wrist and he was required to wear a cast for some three months. He underwent therapy, but continued to experience pain in the left wrist, and a further CT scan and x-ray revealed that k-wires inserted during surgery had become loose and required removal.[6] That surgery was performed on 16 July 2012.[7] 

    [5]    Exhibit P1 p 74 – Report of Dr Reece dated 28 February 2012.

    [6]    Exhibit P1 pp 87-89 – Report of Dr Sood dated 20 June 2012.

    [7]    Exhibit P1 p 91 – Report of Dr Sood dated 16 July 2012.

17. The plaintiff was able to return to work on 30 July 2012, working as a supervisor for his employer at the Edinburgh RAAF Base, but working only four hours per day, three days per week. He continued however to experience pain and limitation in his left wrist.[8]

    [8]    Exhibit P1 pp 5-6 at [35]-[36] – Affidavit of Plaintiff dated 3 February 2016.

18. At the end of 2012 the plaintiff’s employer made the plaintiff’s position as supervisor redundant. The plaintiff was offered a full-time position performing manual labour, but on medical advice was unable to take that up. His employment was terminated in April 2013.

19. The plaintiff had been in receipt of benefits under what was then the Workers Rehabilitation and Compensation Act 1986 (‘the WRCA’) administered by the Workcover Corporation (‘Workcover’). Workcover endeavoured to identify alternative duties within the plaintiff’s capabilities.

20. Dr Sood had certified that the plaintiff was unfit to perform his normal duties of installing steel stud and plasterboard walls, or undertake work that required repetitive forceful gripping, but could carry out work if there was no requirement to lift more than 5-10kg.[9] No suitable work was identified for which the plaintiff was qualified.

    [9]    Exhibit P1 pp 99-101 – Report of Dr Sood dated 28 March 2013.

21. The plaintiff was placed on a “rehabilitation and return to work plan” prepared by a rehabilitation consultant assigned by Workcover.[10] I accept that the plaintiff had genuine intentions in relation to cooperating with the aims of that plan, and returning to work. Ultimately the plaintiff was thought to be fit to be retrained as a forklift driver.

    [10]   Exhibit P1 pp 112-126 – Workcover Initial Assessment Report.

22. The plaintiff continued to consult Dr Sood in respect of his left wrist injury. Following further radiological investigation and reports the plaintiff was advised that he had, in effect, three options for the management of his wrist injury: he could consider taking a conservative approach; could consider a partial fusion of the wrist; or could consider undergoing a full wrist fusion which would result in partial or complete stiffness of the left wrist but might resolve the symptoms of pain, and improve his grip strength.[11] The plaintiff elected to take a conservative approach. I consider that to have been a reasonable decision at that stage.

    [11]   Exhibit P1 p 183 – Report of Dr Sood dated 18 June 2013.

23. In about August 2012, some eight months after the subject incident, the plaintiff began to experience right shoulder pain and tingling in the right arm.[12] The plaintiff consulted his general practitioner because of the sensation of pins and needles in the right arm and hand, and was referred to Dr Mah, an orthopaedic hand specialist, and to Mr Janetzki, an occupational therapist. Ultimately a diagnosis of right carpal tunnel syndrome was made, and compression of the ulna nerve at the elbow identified following nerve conduction tests conducted by a Dr Boundy.[13] There is a question as to whether those symptoms are at all related to the subject incident. I have considered the report of Mr Mah,[14] the nerve conduction study report of Dr Boundy,[15] and the report of Mr Janetzki,[16] together with the plaintiff’s evidence, excluding the hearsay evidence relating to Mr Mah’s opinion.[17] I also note the opinion of Dr D’Onsie, that the plaintiff’s right arm symptoms were as a result of a fall, as well as overcompensation due to restriction of the left arm.[18] I am not satisfied that the right arm symptoms are related to the subject incident. They appear to have emerged some eight months after the subject incident, and there is no good account of any injury of significance to the right arm during that incident.

    [12]   Exhibit P1 p 6 at [37] – Affidavit of Plaintiff dated 3 February 2016.

    [13]   Exhibit P1 p 190 – Report of Dr Boundy dated 14 August 2013.

    [14]   Exhibit P1 p 188 – Report of Mr Mah dated 19 September 2013.

    [15]   Exhibit P1 p 190 – Report of Dr Boundy dated 14 August 2013.

    [16]   Exhibit P1 p 192 – Report of Mr Janetzki dated 3 December 2013.

    [17]   Exhibit P1 p 9 at [56] – Affidavit of plaintiff dated 3 February 2016.

    [18]   Exhibit P1 p 238 at [6] – Report of Dr D’Onise dated 1 December 2014.

24. I note that in 2013 the plaintiff attempted to return to work as a gyprocker, assisting a friend in a small building job. The plaintiff said that he was only able to last two hours due to his ongoing symptoms of pain, and disability in the left wrist.[19] I accept that attempt was genuine and that his reason for stopping was genuine.

    [19]   Exhibit P1 p 10 at [58] – Affidavit of Plaintiff dated 3 February 2016.

25. In early 2016 Dr Sood arranged a further x-ray of the plaintiff’s left wrist and a report of the x-ray was prepared by Dr Saloniklis on 6 January 2016.[20] The plaintiff thereafter consulted Dr Sood and was advised that he had post traumatic arthritis of the left wrist as a result of the fracture. Dr Sood recommended a total wrist arthrodesis.[21]

    [20]   Exhibit P1 p 242 – Report of Dr Saloniklis dated 6 January 2016.

    [21]   Exhibit P1 p 245 – Report of Dr Sood dated 9 January 2016.

26. The plaintiff continued to experience symptoms of numbness and loss of sensation in the left cheek, identified by Dr Syladis, plastic surgeon, in a report of 16 March 2012,[22] as due to nerve damage in the left cheek, which might resolve. However the lack of sensation remained, and the plaintiff was referred to Professor David in late November 2012. Professor David diagnosed decreased sensation and a depression of the left cheek as a result of an uncorrected fracture, and recommended surgery.[23] The plaintiff elected not to proceed with that surgery, as there were no ongoing functional limitations as a result of the facial fractures. I will not make any allowance for future medical costs in respect of that injury.

    [22]   Exhibit P1 p 249 – Report of Dr Syladis dated 16 March 2012.

    [23]   Exhibit P1 pp 251-254 – Report of Professor David dated 9 April 2015.

27. The plaintiff experienced feelings of depression and anxiety as a result of his ongoing disabilities and was referred to a psychologist, Mr Dodd. He underwent seven sessions of psychological treatment.[24]

    [24]   Exhibit P1 p 12 at [71] – Affidavit of Plaintiff dated 3 February 2016.

28. The plaintiff, as at February 2016, continued to consult his general practitioner about once per month and required four 500mg paracetamol tablets per day to manage pain.[25]

    [25]   Exhibit P1 p 12 at [70] – Affidavit of Plaintiff dated 3 February 2016.

    The Plaintiff’s Workcover Claim

29. The plaintiff lodged a claim for worker’s compensation in respect of the injuries to his left wrist and face.[26] The claims manager appointed by Workcover, Employers Mutual Limited (‘EML’) accepted the claim for income maintenance and medical expenses on 2 March 2012 and calculated notional weekly earnings for the purposes of the WRCA, at $1,398.15 gross per week, prior to the application of the statutory percentage reduction.[27] On 1 April 2012 EML notified that the income maintenance payments were reduced to 90 per cent of notional weekly earnings pursuant to s 35A(2) WRCA. From that date gross weekly income maintenance payments were $1,258.34.[28]

    [26]   Exhibit P1 pp 256-257.

    [27]   Exhibit P1 pp 268-277.

    [28]   Exhibit P1 pp 268-277.

30. On 7 June 2012 EML wrote to advise that weekly payments were to be reduced to 80 per cent of notional weekly earnings pursuant to s 35A(2) WRCA to operate from 30 June 2012. Gross weekly income maintenance payments were thereafter $1,118.52.[29]

    [29]   Exhibit P1 pp 279-285.

31. However, a review of notional weekly earnings was undertaken as of 4 January 2013, that is, one year after the assault. Notional weekly earnings were recalculated at $1,539.76 and included an allowance for mobile telephone, and private use of a company vehicle.[30] The effect of that was that, subject to a subsequent 20 per cent reduction pursuant to the WRCA from 4 January 2012 to 23 January 2012, notional weekly earnings became $1,398.15 gross.[31] From 24 January 2012, when the company vehicle was recovered, to 8 May 2012 notional weekly earnings were $1,470.15.[32] From 9 May 2012, when the mobile telephone was recovered, to 3 January 2013 notional weekly earnings were increased to $1,486.25 gross.[33]

    [30]   Exhibit P1 pp 287-293.

    [31]   Exhibit P1 pp 295-298.

    [32]   Exhibit P1 pp 295-298.

    [33]   Exhibit P1 pp 295-298.

32. There continued to be an ongoing review of notional weekly earnings and as at 4 January 2014, two years post injury, notional weekly earnings were increased to $1,592.11 subject however to the 20 per cent reduction.[34]

    [34]   Exhibit P1 pp 300-301.

33. An assessment pursuant to the WRCA of the plaintiff’s “whole person impairment” lump sum payment of $28,069 was made on 28 September 2013, based on a 14 per cent whole person impairment.[35]

    [35]   Exhibit P1 p 314.

    The Plaintiff’s Claim in Summary

34. The plaintiff continued to receive income maintenance payments from Workcover until 29 June 2014 when his entitlements under the WRCA came to an end.[36] Should I find that his injuries resulted in loss of his earning capacity, leading to the entitlement to income maintenance payments, he is entitled to recover those payments in gross terms.[37]

    [36]   Exhibit P1 pp 322-324.

    [37]   Fox v Wood (1981) 148 CLR 438.

35. Once income maintenance payments ceased, the plaintiff applied for a Centrelink Newstart Allowance and has continued to receive payments from Centrelink.[38] As the incapacity of the plaintiff for work has resulted in his receipt of Centrelink benefits, I regard his loss of earning capacity as ongoing, subject to the qualifications I discuss below. The amount of Centrelink benefits is, as a matter of legislation, recoverable, but it is a matter for the Commonwealth authority to determine the amount of the recovery, and that does not bear on the award of damages.

    [38]   Exhibit P1 pp 326-332.

36. I note that ultimately, in addition to the income maintenance payments received by the plaintiff pursuant to the Workers Compensation legislation, he received awards of $5,000 for future medical expenses, $22,500 for future vocational training, $12,227.38 by way of back payments and $1,100.11 by way of interest.[39]

    [39]   Exhibit P1 pp 345-354.

37. The plaintiff said he has incurred medical and like expenses, generally paid for by Workcover, and in respect of which reimbursement is sought. There are additional medical expenses to which I will refer during the course of assessing damages. There are associated travelling expenses which fall into the same category.[40]

    [40]   Exhibit P1 pp 386-391.

1. The plaintiff contended that he has been unable to return to his pre-injury employment as a result of his injuries, and whilst conceding that his incapacity for work is partial, further contended that the injuries have so restricted his ability to work, that for past periods at least it should be regarded as total. I bear in mind the observations of the court in Wade v Allsop,[41] to the effect that whilst incapacity for work is expressed in percentage terms, when competing with able bodied applicants for work, on each occasion, an injured plaintiff may be entirely unsuccessful.

   [41]   Wade v Allsopp (1976) 10 ALR 353.

2. The plaintiff’s evidence is that he required assistance with personal care activities including showering and dressing for a period of some six weeks following the initial injury and for three months following the first surgery performed by Dr Sood, when his left wrist was in a cast. At that time he was in a relationship with his de facto partner, since ended, and she provided approximately one hour of assistance per day with such matters.[42] During the same period she also provided assistance with driving the plaintiff to appointments, and with general household activities. The plaintiff’s daughter has provided some assistance in latter times.[43]

   [42]   Exhibit P1 p 18 at [112] – Affidavit of Plaintiff dated 3 February 2016.

   [43]   Exhibit P5 – Affidavit of Ashelah Kent dated 11 February 2016.

   Pre-existing Injury

3. The plaintiff has suffered injuries prior to the subject injury including injury to his lower back when lifting gyprock sheets in 1989. His medical expenses were paid by the relevant workers compensation authority. He underwent a period of physiotherapy, but his lower back problems subsequently resolved. In 2006 he suffered injury when a tile fell from a roof and struck him in the mouth causing damage to a tooth which required dental treatment. He suffered a further injury to his lower back in 2010 when lifting bags of cement at work. The symptoms of that injury resolved without significant treatment, and he lodged a worker’s compensation claim for medical expenses only. At the age of 18 he had suffered an injury to his right wrist cutting it on a plate of glass. He underwent surgery to repair the laceration. He was left without ongoing problems.[44]

   [44]   Exhibit P1 pp 19-20 at [122]-[134] – Affidavit of Plaintiff dated 3 February 2016.

4. I accept the plaintiff’s evidence to the effect that the pre-existing injuries did not incapacitate him on any ongoing basis for the purposes of assessing pre-trial losses. The nature of his work is such that from time to time injury may have been sustained, albeit in compensable circumstances. I note the observations that such work is arduous physical work which the plaintiff may not have been able to sustain through to retirement age.

   Assessment of Damages

   1 Non-economic Loss

5. The plaintiff has suffered pain, disability and a loss of amenity of life as a result of the injuries sustained. The injuries include a peri-lunate fracture of the left lunate bone with subluxation of that bone, and a gross carpal malalignment with ultimately required surgery to reduce the fracture, and required stabilisation of the fracture with K-wires which were later removed in a second operation. The plaintiff thereafter developed symptomatic arthritis affecting the left wrist. He also suffered a fracture of the zygomatic arch, and of the inferior orbital wall and anterior and lateral maxillary sinus. He suffered psychological sequelae. For reasons to which I have already referred, I do not consider that the plaintiff has established that the right ulna nerve neuropathy is related to the subject incident.

6. The calculation of economic loss is to be made pursuant to s 52(2)(c)(ii) and (d) of the Civil Liability Act 1936. The award of damages for non-economic loss is regulated by Part 8 of that Act. Section 52 relevantly provides:

   52—Damages for non-economic loss

   (1)     Damages may only be awarded for non-economic loss if—

   (a)the injured person's ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days; or

   (b)medical expenses of at least the prescribed minimum have been reasonably incurred in connection with the injury.

7. It is apparent that the plaintiff’s ability to lead a normal life was significantly impaired by the injury for a period of at least seven days, and accordingly he passes the threshold for and entitlement to damages for non-economic loss. The plaintiff suffers ongoing pain and weakness in the left wrist, and numbness in the inferior orbit and left cheek. He may require surgery in future by way of total left wrist arthrodesis.[45] He has ongoing psychological symptoms as a result of the pain and restrictions caused by his left wrist injury, and the impact of that upon his ability to earn an income. As a consequence of his injury he has been unable to participate in his social and recreational activities including playing sports, playing music, and in addition has difficulty in driving and undertaking activities of daily living.[46]

   [45]   Exhibit P1 pp 244-247 – Report of Dr Sood dated 9 January 2016.

   [46]   Exhibit P1 pp 18-19 at [113]-[121] – Affidavit of Plaintiff dated 3 February 2016.

8. Counsel for the plaintiff referred me to a number of decisions which were said to be awards under this head of damages for comparable injuries. Such comparisons are often unhelpful.[47]

   [47]   Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118.

9. I consider that an allocation of 16 points on the scale is appropriate, having regard to the nature of the injuries, the requirement for surgery, and for future surgery, and the psychological sequelae, and the impact or the plaintiff’s life.

10. The multiplier is the amount of $1,500 and accordingly the award under this head is $24,000.

    2 Economic Loss

11. In awarding damages under this head, it is necessary to endeavour to compensate an injured plaintiff for the reduction in his earning capacity caused by the tortfeasor, to the extent that such reduction of any capacity is productive of pecuniary loss.[48] I find, as was put by counsel for the plaintiff, that the plaintiff had a consistent work history, had worked as a gyprocker since shortly after leaving high school at the age of 15 years, and was employed by Adelaide Partitions and Ceilings as a gyprocker and building supervisor, for the five years preceding the subject injury.

    [48]   Medlin v Sate Government Insurance Commission (1995) 182 CLR 1; Husher v Husher (1999) 197 CLR 138 [142]-[143].

12. I accept that, by reason of his injuries, the plaintiff has been unable to return to his pre-injury employment. He has made genuine attempts to return to alternative employment, but has been unable to successfully do so having regard to the ongoing weakness and restriction in his left wrist. The plaintiff’s attitude towards employment is a positive one, and I note that he has, in the absence of an ability to undertake paid employment, taken up a volunteer position with the Salvation Army where he performs minor cleaning and maintenance duties.[49]

    [49]   Exhibit P1 p 17 at [101] – Affidavit of Plaintiff dated 3 February 2016.

13. The plaintiff asserted that had he not been injured he would have continued to work as a building supervisor and as a gyprocker until retirement at the age of 67.

14. As I observed earlier, work as a gyprocker is difficult physical work, requiring strength and agility. Whilst it may have been the plaintiff’s present intention to work until the age of 67, I am unable to find as a matter of fact that he would have been able to do so. An allowance must be made for contingencies including the occurrence of non-compensable injury or illness, an inability to continue by virtue of age or poor health, and the possibility that such work may not have been available on an ongoing basis.

15. Whilst it may be that the plaintiff, in his more senior working years, would have progressed to work more weighted to tasks as a building supervisor, there is no evidence that enables me to conclude that such would be permanently available. Indeed the evidence of the plaintiff was that the position as a building supervisor became redundant as that task was taken over by project managers. There is no sufficient evidence before me to enable a finding that the plaintiff would have stepped into the positon as a project manager at some stage.

16. As was put by counsel for the plaintiff, whilst the plaintiff’s role was described as a building supervisor, in reality his role was more than that of a leading hand, in that in addition to supervising employees in the business, he was still required to perform the physical duties of gyprocker. Whilst he had practical experience as a building supervisor, he had not obtained qualifications in that role, and has, as a consequence, been unable to obtain work in that field.

17. Counsel for the plaintiff properly conceded that the plaintiff has retained a residual earning capacity, although he has had limited opportunities to exercise that earning capacity, given his absence from the workforce. I accept that due to a combination of his physical and psychological injuries, he has been unable to return to his pre-injury work since the subject incident. Against that background I turn to the assessment of damages under this head.

    2(a) Past Economic Loss

18. I accept that the amounts paid to the plaintiff, by Workcover, constitute an amount equivalent, in part, to his loss of earning capacity for the relevant periods. Those amounts, as I have said, are to be awarded in gross terms. Where there has been a reduction in the payment by the statutory percentages referred to, the balance is to be awarded in net terms.[50] That results in an award as follows:

    [50]   Fox v Wood (1981) 148 CLR 348.

4     January to 1 April 2012	$18,895.95
2     April 2012 to 30 June 2012	$17,754.50
1     July 2012 to 30 July 2014	$158,512.77
Total gross wages paid by Workcover	$195,163.22

1. The additional net loss, given the statutory percentage reduction in income maintenance payments to be awarded, is as follows:

2     April 2012 to 30 June 2012	$1,198.51
1     July 2012 to 30 July 2014	$23,143.67
Total net additional loss	$24,342.18

1. I do not consider that any discount should be applied in respect of the period during which income maintenance payments were being made. The amount to be awarded during that period is a combination of the gross repayable amount, plus the net shortfall namely $219,505.40.

2. From 1 August 2014 I accept that the plaintiff’s net average weekly earnings after tax, would have amounted to $1,173.69, as submitted by counsel for the plaintiff. That is based on a gross annual salary including allowances of $82,789.72, translating to a gross weekly income of $1,592.11, and with tax calculated on that amount. The period from 1 August 2014 to the date of judgment is a period of some 145 weeks. The total net loss for that period therefore is a sum of $170,185.05.

3. In considering whether that sum should be adjusted for adverse contingencies, I bear in mind the plaintiff’s strong work history, and what I have accepted was his intention to work during the period in question, absent the occurrence of the subject injury. In considering a reduction for contingencies it is necessary to also give consideration to the prospect of positive contingencies which may have resulted from promotion or better opportunities becoming available to the plaintiff. There is no presumption in favour of discounting for adverse contingencies.[51] Nevertheless I consider that some modest discount should be applied and award the sum of $150,000 for that period.

   [51]   Bresatz v Przibilla (1962) 108 CLR 541 p 543; and see Campbell v Nangle (1985) 40 SASR 161 pp 186-187; and see also Fitzgerald v Goonan [2000] SASC 332.

4. Accordingly the total award for past loss of earning capacity is $369,505.40, comprising gross wages paid by Workcover, net shortfall during that period, and thereafter the net loss to the date of judgment.

   2(b) Future Loss of Earning Capacity

5. Counsel for the plaintiff submitted that I should find that the plaintiff requires surgery to each wrist, which could incapacitate him from some two years. For the reasons I have already outlined I am not able to find that the injury, and any surgery required in respect of the right wrist, is referable to the subject incident.

6. I accept that following surgery to his left wrist the plaintiff would have an inability to work as a gyprocker, or in any other physically demanding occupation. Counsel for the plaintiff properly conceded that the plaintiff’s resourcefulness, and work ethic is such that he is likely to re-train, although given his limited formal education, and physical restrictions, he may have difficulty obtaining and sustaining long term employment.

7. Counsel for the plaintiff submitted that the appropriate approach would be to assume net weekly earnings of $1,173.69, and allow an amount equivalent to two years net salary discounted slightly for immediate lump sum payment. That would result in an award of $116,664.79. Thereafter, counsel of the plaintiff contended that the plaintiff’s loss, to the age of 67, was a total of something over $700,000. Counsel contended that there should be a 50 per cent reduction for contingencies in respect of that amount.

8. As I have said, there are a number of imponderables. I accept that absent the injury the plaintiff, generally speaking, had intended to obtain or maintain full employment.

9. I do not accept however that the plaintiff would have worked in his current, or related employment, until the age of 67 years. On the basis of the material before me I accept that the plaintiff is enterprising, resourceful and well-motivated. He is likely to obtain employment, if not in a physically demanding role, in a role which combines supervising aspects and light physical work. He was paid a sum of $22,000 by Workcover for future vocational training. That will assist in enabling the plaintiff to obtain remunerable employment. I consider that a broad axe approach to the assessment of the award for future loss of earning capacity is appropriate. I award a sum of $250,000.

   3 Superannuation Losses

   (a) Past Superannuation Loss

10. The plaintiff is entitled to an award to compensate him for loss of superannuation benefits both in respect of pre-judgment loss of earning capacity, and future loss of earning capacity. In respect of the past loss the calculation is complicated by the fact that some of the plaintiff’s losses are to be awarded in gross terms and some in net terms. Payments under the superannuation guarantee levy are based upon gross income. In respect of the amount calculated in gross terms, namely $195,163.22, there will be an award of 9.5 per cent, namely $18,540.50. In respect of the balance of the net top up of $24,342.18, and the post 1 August 2014 award of $150,000, there will be an award of damages calculated at the rate of 12 per cent of the award for loss of earning capacity, namely $20,921.06.

11. The total past superannuation loss is therefore $39,461.15.

    (b) Future Superannuation Loss

12. As to the future the award will be 12 per cent of the awarded sum of $250,000, namely $30,000.

    4 Special Damages

13. The amount claimed for special damages, including travel expenses, is $21,907.48. In addition the plaintiff was paid $22,500 for future vocational training. That amount is repayable. I allow that amount, namely $44,407.48.

    5 Future Medical Expenses

14. Dr Sood has recommended that the plaintiff undergo a total left wrist arthrodesis. The cost is estimated at $12,000.[52] It is not clear as to when that surgery will proceed, nor whether it is certain to proceed. Accordingly, that sum must be discounted. Were the surgery to be performed however, there may well be other associated medical expenses including general practitioner consultations, physical therapy, and medication. There will be incidental general practitioner visits and some costs of medication. I allow a sum of $9,000. I do not make any allowance for the ulna nerve transposition referred to by Dr Mah, again on the basis that I am not satisfied that the right arm injury is related to the subject incident.

    [52]   Exhibit P1 p 246 – Report of Dr Sood dated 9 January 2016.

    6 Voluntary Assistance

15. The Voluntary services had been provided by the plaintiff’s de facto partner, and his daughter. The plaintiff is entitled to damages for services reasonably provided by those persons.[53]

    [53] Section 58(1) Civil Liability Act 1936.

    (a) Past Voluntary Assistance

16. The plaintiff is entitled to an award of damages to compensate for reasonable services actually required by the plaintiff, and provided by eligible persons. The award of damages is assessed by the commercial value of such services.[54] I accept that the plaintiff required assistance following the subject incident, in attending appointments, attending for shopping, assistance with personal care activities including showering and dressing, and performing domestic activities including cooking and cleaning. That persisted for a period of three months. Thereafter he required assistance on a lesser basis from his daughter.

    [54]   Van Gervan v Fenton (1992) 175 CLR 327.

17. For the first three months I will allow two hours per day, therefore 14 hours per week for 13 weeks equals 182 hours. The appropriate rate for agency care was $41.84 for domestic assistance. In addition there were 6.5 hours of home garden and maintenance. The commercial rate was $47.18 per hour for garden maintenance.

18. Thereafter for a period of time the plaintiff received assistance from his daughter which I accept was reasonably required of the order of two hours per week together with home and garden maintenance of about half an hour per week. The average agency rate for domestic assistance was $43.70 per hour during the subsequent period, and for home and garden maintenance $51.62 per hour. Again it is appropriate to take a broad axe approach. I allow a sum of $10,000 for past voluntary services.

    (b) Future Assistance

19. Doing the best I can on the basis of the evidence, I allow a sum of $20,000 for future voluntary or paid services.

    7 Interest

20. The plaintiff is entitled to interest on past loss of earning capacity for that proportion not paid by Workcover. The total is comprised the net top up amount and the award under this head post 1 August 2014, namely $174,342.18. I allow interest at 5 per cent for 1.5 years, being half the period over which the loss was suffered, say $13,000. I award interest on past superannuation losses in the sum of $5,000.

21. I award interest on past special Voluntary services at five per cent for 2.5 years in the sum of $1250. Total interest $19,250.

    In Summary

Non-economic loss	$24,000
Past economic loss	$369,505.40
Future loss of earning capacity	$250,000
Past superannuation loss	$39,461.15
Future superannuation loss	$30,000
Special damages	$44,407.48
Future medical expenses	$9,000
Past voluntary assistance	$10,000
Future voluntary assistance	$20,000
Interest	$19,250
Total	$815,624.03

1. Accordingly there will be judgment for the plaintiff in the sum of $815,624.03 I will hear the parties as to costs.