Kos v Dolso Constructions Pty Ltd & Ors

[2006] NSWSC 1075

CITATION:	Kos v Dolso Constructions Pty Ltd & Ors [2006] NSWSC 1075
HEARING DATE(S):	09/10/2006, 10/10/2006, 11/10/2006
JUDGMENT DATE :	13 October 2006
JUDGMENT OF:	Hoeben J at 1
DECISION:	I enter judgment in favour of the plaintiff against Dolso in the sum of of $885,775.00.; Leave is granted to Dolso to deduct from the plaintiff’s judgment the amount of compensation paid to or on his behalf by Proform/Allianz Workers Compensation (NSW) and to pay that amount directly to Proform/Allianz Workers Compensation (NSW), such payment to be taken as part satisfaction of the plaintiff’s judgment and to be compliance with the plaintiff’s obligation pursuant to para 5(b) of the Terms of Settlement filed with the Court on 10 October 2006.; Dolso is to pay the plaintiff’s costs as agreed or as assessed.
CATCHWORDS:	Industrial accident - building site - claim against employer - negligence and breaches of Construction Safety Act 1912 - whether plaintiff had residual earning capacity - damages for economic loss and loss of earning capacity.
LEGISLATION CITED:	Construction Safety Act 1912 Motor Accident Compensation Act 2000 Workers Compensation Act 1987
CASES CITED:	McLean v Tedman (1984) 155 CLR 306 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Branko Kos - Plaintiff Dolso Constructions Pty Limited - First Defendant Leighton Contractors Pty Limited - Second Defendant Proform Systems Pty Limited - Cross-Defendant
FILE NUMBER(S):	SC 20911/2001
COUNSEL:	B Toomey QC/M McAuley - Plaintiff J Jobson - First Defendant J Catsanos - Second Defendant J Sharpe - Cross-Defendant
SOLICITORS:	Albert Macri Partners - Plaintiff McCulloch and Buggy - First Defendant Moray & Agnew - Second Defendant Vandervords - Cross-Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 13 October 2006

20911/2001 – Branko KOS v DOLSO CONSTRUCTIONS PTY LIMITED & Ors

JUDGMENT

1 HIS HONOUR: On 16 July 2001 the plaintiff was working as a formwork labourer at 700 Harris Street, Ultimo where the ABC Building was under construction. On that day in the course of his employment he fell a distance of 5.5 metres and suffered injuries.

2 The plaintiff brought proceedings against Dolso Constructions Pty Limited (Dolso) as his employer and against Leighton Contractors Pty Limited (Leighton) as the head contractor on the building site. Subsequently, Proform Systems Pty Limited (Proform) was joined as a cross-defendant on the basis that it, not Dolso, was the employer of the plaintiff when he was injured.

3 After the matter commenced before me, discussions took place between the defendants and the cross-defendant. The results of those discussions are set out in Terms of Settlement filed in Court on 10 October 2006. The effect of the terms was that the plaintiff’s claim against Leighton was dismissed and the cross-claims against Proform Systems were dismissed. The matter then proceeded against Dolso on the basis that Dolso was the plaintiff’s employer at the relevant time. Dolso denied employment.

Was Dolso the plaintiff’s employer?

4 Despite the fact that payments of workers compensation were made by Proform, the evidence was overwhelmingly one way that at the time of the injury the plaintiff was employed by Dolso.

5 Exhibit A comprised bank statements from the St George Bank. This made it clear that the payment of wages to the plaintiff, between 7 March 2001 and the date of the accident was made by Dolso. It was the plaintiff’s belief that he was employed by Dolso. He appeared in the records of Dolso as its employee. He appeared in the records of Leighton as an employee of Dolso. The manager who gave him instructions as to his work, Mr Frank Baroni, was an employee of Dolso.

6 I find that on 16 July 2001 when he was injured, the plaintiff was an employee of Dolso and that he was injured in the course of that employment.

Factual background

7 The evidence was given with commendable brevity. Both counsel agreed that I could accept the histories in the medical reports as the plaintiff’s evidence on those matters except where the plaintiff was specifically cross-examined on an element of history or where some element of history was otherwise placed in issue. Accordingly, except as indicated, I find the factual background to be as follows.

8 The plaintiff was born on 27 July 1954. He was therefore almost 47 when the accident occurred. His place of birth was the former Yugoslavia. He completed 11 years of schooling in that country and gained the trade of an auto mechanic. He came to Australia on 12 September 1994.

9 The plaintiff obtained employment with Dolso on 19 April 1995. This was his first job in Australia. He was employed by Dolso as a formwork labourer. As I have found, he was employed by Dolso from that date until his accident on 16 July 2001.

10 He worked long hours, averaging 10 hours per day and 7 hours on Saturday. His tax returns indicate that his earnings were commensurately high. In 1998 they averaged $845 net per week, in 1999 $910 net per week, in 2000 $885 net per week and in 2001 $989 net per week.

11 The work performed by the plaintiff was heavy. It involved significant amounts of lifting, bending, walking, standing, pushing, pulling, climbing and carrying. He was often required to work in awkward positions. The building sites on which he worked were frequently rough and difficult to traverse.

12 With one qualification the plaintiff’s health until the date of the accident was good. On 6 March 2001 he was involved in a motor vehicle accident. He was a front seat passenger in a stationary car which was struck from behind by another vehicle. The plaintiff suffered injuries. There was an issue as to precisely what injuries he had suffered in this accident.

13 The plaintiff’s general practitioner at the time was Dr Nemec. Included in the medical reports tendered was a report from Dr Kaushik, dated 16 March 2001 to Dr Nemec which set out x-ray findings in relation to the plaintiff’s neck as follows:

“There is a loss of normal cervical lordosis, presumably due to paravertebral muscular spasm. There is disc height narrowing at the C4-5 and C5-6 levels. The remaining body and disc heights are preserved. Early osteophyte formation is noted in the antero-inferior corner of C5. There is no prevertebral soft tissue swelling. No fracture is seen. The C1/C2 articulation is normal.

Conclusion

Cervical spondylosis and cervical paravertebral muscular spasm.”

14 In his evidence the plaintiff said that as a result of the motor vehicle accident he suffered an injury to his neck, but not to any other part of his body. He said that he lost one or two days from work but that the neck problems cleared up within a few weeks.

15 The plaintiff made a claim under the Motor Accident Compensation Act. In that claim he claimed injuries to his neck, left and right shoulders, left and right arms and to his back. In support of that claim a report from Dr Guirgis, consultant orthopaedic surgeon, dated 15 May 2001 was obtained. In that report Dr Guirgis concluded that the plaintiff had suffered post-traumatic mechanical derangement of the cervical and thoracic areas of the spine as a result of the motor vehicle accident. In the opinion of that doctor, this was caused by musculo-ligamentous sprains which had triggered and aggravated the effects of a pre-existing osteospondylosis.

16 On the basis of this claim and the report of Dr Guirgis it was submitted, on behalf of Dolso, that in the motor vehicle accident the plaintiff had not only suffered an injury to his neck, but also to his low back. I do not accept that the plaintiff suffered an injury to his low back in the motor vehicle accident.

17 It is clear from the x-ray report that the only area of concern to his general practitioner was his neck. In any event the injury was not of particular significance in that the plaintiff only lost two days from work at most and was able to resume his heavy pre-injury employment without apparent difficulty. It is significant that Dr Guirgis did not make any reference to the low back but rather to the thoracic spine. The conclusion which I have reached is that the plaintiff suffered an injury to his neck in the motor vehicle accident. He may well have been suffering some symptoms in that region at the time of the accident. If he were those symptoms were not particularly disabling and certainly not sufficient to prevent him from working.

18 The plaintiff came onto the ABC site on 4 July 2001. He and a fellow worker were tasked with removing formwork from a lift shaft. The particular levels at which they were working are shown on the diagram, exhibit E. They were the lower three levels. As well as removing formwork from the walls, they were also dismantling the work platforms which had been positioned within the lift shaft.

19 The plaintiff’s accident occurred when work platform 2 was being dismantled. The method used was that the plaintiff’s fellow worker while standing on platform 2 would remove pieces of plywood from that platform and drop them onto platform 1. The plaintiff’s job was to stand near the door on platform 1 to make sure that no-one stepped onto that platform while the pieces of plywood were being dropped from above. When the plywood from platform 2 had been dropped onto platform 1, the plaintiff and his fellow worker would then carry the pieces of plywood from platform 1 to area 1 where they were stacked and cleaned ready for removal. The pieces of plywood were substantial in size, with dimensions of 1.8m by 1.2m.

20 It was suggested in cross-examination and in submissions that the plaintiff was in fact attempting to dismantle platform 1 when he was injured, ie that he was removing plywood which formed part of the surface of platform 1 on which he was standing. I do not accept that submission. Not only would that be foolhardy, but it was contrary to the method of work described by the plaintiff. The plaintiff denied that proposition.

21 The plaintiff described by demonstration and orally how he and his fellow worker would remove each piece of plywood individually from where it had been dropped onto platform 1. The accident occurred when the plaintiff picked up what he believed to be the last piece of plywood which had been dropped from platform 2 and attempted to remove it from platform 1 into area 1. He lifted it in such a way that it blocked his forward vision. He took a step forward and fell down a hole which that piece of plywood had been covering.

22 The plaintiff’s evidence was that the piece of plywood which he lifted was not flush with the pieces of plywood which formed the surface of platform 1 but was lying on the surface as it would be had it been dropped from above. It was not nailed or in any other way secured to platform 1 so that it was easily removed when the plaintiff lifted it. What the plaintiff did not know was that the piece of plywood had been used as a covering for a hole, approximately two feet square, by which access could be gained to platform 1 from below. By lifting the plywood he exposed the hole into which he stepped.

23 The position is made clear by the following evidence:

“Q. You knew that the plywood that you were going to remove then was the plywood that Dragan had thrown down from platform from platform 3 to platform 2?
A. Of course, yes.

Q. And then when you removed that plywood, is it the case that Dragan would then come in and remove the plywood that was on the platform 2 that had already been there and then drop it down to platform 1?
A. Yes.

Q. The only plywood that you removed was the plywood that Dragan had dropped down from above?
A. Yes. There were no other pieces of plywood.

Q. And then when Dragan would go to platform two, you would you be at platform one?
A. Yes.

Q. And then Dragan dropped the plywood down from platform two on to platform one?
A. Yes.

Q. Had Dragan dropped all of the plywood from platform two down to platform one before you had your injury?
A. Yes. Yes, from two to one.” (T.30-31)

24 I should observe at this point that I found the plaintiff to be an honest witness. In his responses, particularly under cross-examination, it seemed to me that he was attempting to describe the system of work as honestly and as accurately as he could.

25 There was no issue that the work had to be done as quickly as possible and that both the plaintiff and his fellow worker were under some pressure to comply with that direction.

26 It was suggested in cross-examination that the plaintiff was in part responsible for his own misfortune in that he should have been aware that each platform had a hole in its centre so as to enable access to be gained to it from below. When that proposition was put to the plaintiff, he responded as follows:

“Q. And you were aware, were you not, that the platforms that were used always had an opening in the centre for a ladder?
A. Not everywhere.

Q. But it was common to have the platform with a hole in the centre for a ladder?
A. I will just give you an example. On platform 2, let's say from platform 1 to platform 2 there was no opening just to put the ladder up so we used for that reason the stairs. So I would like to point out that through this example you can say that there is no opening in the middle of each platform, only on those platforms in which there is no other way to access. To reach platform 1 I used the stairs, so I was not able to see what was really over there.
Q. And you were aware that it was practice that covering the hole in the centre of the platform was a piece of plywood that was above the level of the rest of the plywood on the platform?
A. Yes, I did, but that piece of plywood should have been really nailed down and there should be the warning somewhere.” (T.36)

27 I accept the plaintiff’s evidence on this question and I find that not every platform had a hole in it covered by a piece of plywood. This is particularly so where there was an alternative means of access to that platform such as stairs. I find that the plaintiff was unaware that there was a hole in platform 1.

28 The distance which the plaintiff fell was approximately 5.5 metres. He landed on his buttocks and on his outstretched left hand. He was immediately taken to the Accident and Emergency Department at St Vincent’s Hospital. X-rays of the left wrist showed a comminuted intra-articular fracture of the distal radius. On 17 July 2001 his left wrist was operated on and he underwent a closed reduction and percutaneous K-wire fixation of the fractured distal left radius. The K-wires were removed from the left radius and the cast was removed on 5 September 2001.

29 Although there was no issue that the plaintiff also suffered an injury to his low back, there was a dispute as to the nature of that injury. A CT of the lumbar spine taken on admission showed anterior wedging of the L1 vertebra with a reduction of the vertebral height by 10% and a limbus L4 vertebra with minor separation of the superior ring apophysis. It was suggested in one of the radiology reports that the limbus L4 vertebra might have been degenerative in nature as was the wedging at the L1 level.

30 This question was considered by a number of the doctors who examined the plaintiff. The majority considered that the plaintiff had suffered traumatic fractures of the vertebrae at the L4 and L1 levels. This was the opinion of Doctors Sheridan (neurosurgeon) and Dr Scougall (orthopaedic surgeon) on behalf of the plaintiff and of Doctors Matheson (neurologist) Meachin (orthopaedic surgeon) and Dr Wilding (orthopaedic surgeon) on behalf of Dolso. Doctor Steele thought that there was a traumatic fracture at the L1 level but was not sure as to the origin of the abnormality at the L4 level.

31 I have concluded that the plaintiff did suffer traumatic fractures at the L1 and L4 levels of his back. I find the reasoning of Doctors Meachin, Wilding and Scougall to be persuasive. Dr Scougall analysed the question as follows:

“I believe that he had also sustained crush fractures of two lumbar vertebrae, L1 and L4. I note that the ambulance report states that he was “complaining of intense pain in the middle of back over area 1, 2.” I note also that the original radiological examinations of his lumbar spine, 16 July 2001 that is on the day of the injury, had shown only minor anterior wedging of L1 and some irregularity of the superior end plate of the L4. A subsequent radiological examination, 31 October 2001, showed significant reduction in the anterior vertebral height of each of those vertebrae. This indicates to me that it is very likely that both of those crush fractures had occurred at the time of the fall described.”

32 An MRI scan of the lumbar spine of 3 December 2001 showed a small left postero-lateral disc protrusion at the L5/S1 level. This encroached on the epidural fat but there was no evidence of encroachment on the theca or neural structures. Dr Sheridan, the plaintiff’s treating neuro-surgeon described the results of the MRI scan as follows:

“He has now had his lumbar MRI scan. This shows quite an extensive injury in his lumbar spine consistent with the accident that he had. He has wedging of L1 as described previously. There is also loss of height and disc damage at the L1-2, L2-3 and L3-4 levels. There is however no significant neural compromise and nothing that would benefit from surgery. It is not surprising however that he has ongoing symptoms from this.”

33 Although the whole of the plaintiff’s spine was undoubtedly shaken up as a result of his fall, I find that he did not suffer a specific injury to his neck or shoulders. He specifically excluded any injury to his neck in the history which he gave to Dr Sheridan in November 2001. He only commenced to complain of neck problems in 2004. I find that the neck problems in 2004 were not caused by his fall. It seems to me that they were due either to the effects of the motor vehicle accident or to the degenerative changes in the neck described by Dr Kaushik in his report of 6 March 2001 or a combination of both.

34 The plaintiff was discharged from St Vincent’s Hospital on 24 July 2001 and thereafter continued to attend the fracture clinic and undergo physiotherapy until 31 October 2001. The plaintiff’s fractures in the left wrist gradually healed but he was left with some deformity, particularly in the area of the ulnar head. Although the plaintiff was right handed, it was thought that he would not be able to return to heavy labouring because of the disability in his left wrist. Because of the deformity, it was felt that osteoarthritis would be likely to develop in the wrist.

35 The plaintiff’s back gradually improved but he was left with continuing pain which extended into both legs. His ability to lift and to bend was significantly limited.

36 The following opinions were expressed as to his ability to resume employment:

Dr Sheridan (Neurosurgeon - 13 March 2004)

“Given his current disability I really don’t think he is ever going to get back into any sort of employment. His language skills and restrictions are going to make him essentially unemployable. I can’t see anyone who would want or realistically have a job for him.”

Dr Meachin (Orthopaedic Surgeon - 21 February 2002)

“In my opinion this man will not be able to return to work as a heavy labourer. He will eventually be fit for light work not involving repetitive bending or heavy lifting.”

Dr Salmon (Pain Management Specialist – 20 September 2004)

“Mr Kos has a permanent impairment to the back and left wrist. He has reduced physical tolerances for prolonged sitting, prolonged standing, lifting more than 7.5 kg, repetitive use of the left upper limb, travelling by public transport for more than 20 minutes at a time… He has minimal transferable vocational skills. He has a poor command of English. He is unsuitable for physical employment, and any employment would require considerable effort to prepare him for light, administrative type duties.”

Dr Scougall (Orthopaedic Surgeon – 10 November 2004)

“In regard to his level of fitness for work he is fit for sedentary work. He is fit for work requiring occasional bending and lifting but not repeated bending or lifting or working in the bent position. As such he is unfit for his pre-injury work as a labourer. He is fit in theory for sedentary work. His command of English is not good.”

Dr Chase (Occupational Physician – 20 December 2001)

“As at 19 December 2001 Mr Kos is fit to return to work on suitable duties. With regard to his wrist he is fit to return with the following restrictions: He may lift up to 500g with the left hand, he should not perform any repetitive lifting or repetitive gripping actions using the left hand, he should not use vibrating tools, no climbing.
With regards to the low back, Mr Kos is fit to work within the following restrictions: Sit or stand according to pain tolerance, he may lift up to a total of 5 kg (with the right hand) restrict bending and no trunk twisting.”

Dr Matheson (Consultant Neurosurgeon – 19 March 2002)

“The left wrist fracture is likely to go on to some arthritis in the wrist and will presumably always be a bit painful for him. However it would not stop him pursuing light employment. … He should make further improvement, he will be able to resume employment but he will have to go on to some more restricted duties than his building type work he was doing. Presumably re-employment in some form of security work would be more suitable for him or light duties within the building industry.”

Dr Bodel (Orthopaedic Surgeon – 7 May 2002)

“Based on the patient’s clinical presentation today he does have a guarded prognosis and he is certainly not fit for his pre-injury work and never will be. Theoretically he may be able to be retrained in alternative duties but he has a very poor command of English and this will make that difficult.
Based on his clinical presentation he should be capable of very light tasks, 20 hours per week, as long as he avoids any bending, twisting or lifting of significance and is able to change position frequently from standing or sitting or walking as desired. I would place a 10 kilogram lifting limit on it.”

Dr Sekel (Occupational Medicine – 28 April 2003)

“Mr Kos is now fit for:
Five hours of work per day, five days per week.
8 kg maximum lifting weight.
Work where he can avoid repeated bending and avoid heavy lifting, pushing, pulling or twisting through the trunk.
It is anticipated that he will be able to return to normal hours of work over the next 6-8 weeks.”

Dr Haynes (Occupational Physician – 16 July 2003)

“Mr Kos is not totally unfit for all work duties. He is permanently unfit to return to work as a formwork carpenter or labourer however. He could perform duties where there was no very forceful gripping using his left hand and where he was not lifting more than 10 kg on a regular basis. He would be unfit for prolonged and repeated bending. He would need to sit or stand from time to time.”

Dr Wilding (Orthopaedic Surgeon – 1 August 2005)

“He is unfit to return to work as a formwork labourer. He is fit for sedentary work where he can frequently alternate his posture. Work as a gatekeeper for example would be appropriate work for him but he may have difficulties with this work because of his lack of command of the English language. An opinion regarding his employment should be sought from a rehabilitation provider.”

37 The plaintiff has not returned to any work. He undertakes hydrotherapy on a regular basis. He attends a pain management clinic from time to time. He was taking quantities of analgesics for his pain, in particular Voltaren. The pain in his low back has led to some sexual dysfunction which is psychologically based. In September 2006 he was diagnosed with a gastric ulcer due to his consumption of Voltaren. The plaintiff continues to experience pain in his low back and intermittently in his left wrist.

Liability

38 The plaintiff relied upon the following particulars of negligence.

(i) Failure to provide a safe system of work.

(ii) Failure to provide a safe place of work.

(iii) Failure to adequately secure the piece of plywood.

(iv) Failure to signify that the piece of plywood was placed directly over a hole.

(v) Failure to warn the plaintiff as to the presence of a hole covered by an unsecured piece of plywood.

(vi) Failure to appropriately cover the hole.

39 The plaintiff also relied upon breaches of the regulations made under the Construction Safety Act 1912 as follows:

Regulation 73(3) in failing to provide by fencing or otherwise for securing the safety of any person working at a distance from which he would be liable to fall a distance of more than 1.8 metres.

Regulation 73(8) in failing to effectively fence all platforms, the open sides of floors, openings in floors, roofs and platforms into which persons could accidentally walk, the open sides of stairways and stairway landings and all excavations and holes from which a person might fall a distance of more than 1.5 metres.

40 In relation to the breaches of regulation, there is no argument that Dolso was carrying out building work as defined at the time when the plaintiff was hurt. Given the date of the accident, the Construction Safety Act was still in force. Accordingly, it was necessary for Dolso to comply with the regulations made under it.

41 I am of the opinion that a breach of regulation 73(3) did occur in that as a matter of fact the plaintiff was working at a place from which he would be liable to fall a distance of 1.8 metres. The mere placing of a piece of plywood over the hole in the platform does not, in my opinion, constitute a compliance with the regulation.

42 Similarly in relation to regulation 73(8) there was clearly an opening in the floor of platform number 1. The placing of an unsecured piece of plywood over that opening does not satisfy the requirement to “effectively fence” such an opening.

43 In relation to the particulars of negligence, Dolso as the plaintiff’s employer owed to him a duty to exercise reasonable care for his safety. In my opinion, it failed to discharge that duty in a number of respects. Quite clearly the place of work was not safe. This is particularly so given the nature of the work being performed on platform 1, ie the removal from the surface of platform 1 of loose pieces of plywood.

44 In the circumstances described by the plaintiff it would be reasonably foreseeable that an unsecured piece of plywood covering a hole could be accidentally removed in circumstances where the workman removing it would be unaware of the hole. This foreseeable risk required a response in accordance with the factors referred to in Wyong Shire Council v Shirt (1980) 146 CLR 40. In the circumstances of this case adequately securing the piece of plywood, or providing a suitable warning, would have been inexpensive but adequate responses to the foreseeable risk. No such response was made by Dolso and I find that the plaintiff has established negligence against it.

45 Contributory negligence was relied upon by Dolso. It was alleged that the plaintiff had contributed to his own misfortune by being inattentive, failing to take proper precautions for his own safety, failing to keep a proper lookout and failing to observe and avoid the danger constituted by the hole.

46 The obligation on an employee in the position of the plaintiff was to act reasonably for his own safety. Given that the plaintiff was unaware of the existence of a hole in platform 1, there was no reason why he should have taken any particular care when removing what he perceived to be the final piece of loose plywood which had come from platform 2. If there were any fault on the part of the plaintiff (which I do not find) it was at most the sort of momentary inattention which was explained and excused by the High Court in McLean v Tedman (1984) 155 CLR 306.

47 The actions of the plaintiff have to be assessed not only from the point of view that he was unaware of the existence of a hole in platform 1, but also because he and his fellow worker had been directed to carry out the job as quickly as possible. In the absence of any forewarning there was no reason why the plaintiff should take any particular care in removing what he believed to be the last piece of loose plywood on the surface of platform 1.

48 I find that Dolso has failed to establish contributory negligence on the part of the plaintiff. Accordingly, the plaintiff is entitled to a verdict against Dolso without any deduction for contributory negligence.

Damages

49 It was agreed that if the plaintiff succeeded in establishing liability against Dolso, the damages to which he was entitled should be assessed in accordance with the provisions of the Workers Compensation Act 1987 (the Act) before the 2001 amendments.

50 The first head of damage to be considered is non-economic loss. Dolso submitted that a figure of 25% of a most extreme case was appropriate, whereas on behalf of the plaintiff a figure of 50% was sought.

51 As indicated in my review of the factual background, the plaintiff suffered a serious injury to his left wrist which still causes him pain and which is likely to deteriorate as arthritis develops. His use of his left arm has accordingly been reduced by that pain and by a loss of strength and dexterity.

52 The plaintiff suffered crush fractures to two vertebrae in his low back. According to Dr Sheridan he also suffered a disc prolapse. Although his low back condition has improved, he has been left with continuing pain both in the back and in the legs. As with the left arm, that pain will remain with him for the rest of his life, ie a period in excess of 27 years.

53 He also has the added complications of a degree of sexual dysfunction and a gastric ulcer, probably caused by the medication which he takes for pain control.

54 Taking all those matters into account, I assess the plaintiff’s entitlement to damages for non-economic loss at 35% of a most extreme case, ie $88,393.

55 Past out-of-pocket expenses were agreed at $68,569. Although the plaintiff eschewed any claim for future out-of-pocket expenses, it seems to me that some allowance needs to be made for analgesia and attendances for hydrotherapy and physiotherapy from time to time in the future. I propose to allow a figure of $5,000 for future out-of-pocket expenses.

56 The most significant head of damage is the plaintiff’s claim for past economic loss and loss of earning capacity. It was submitted on his behalf that by reference to his earnings in the year 2001 ($989 net per week) one could extrapolate his likely earnings uninjured by reference to the average weekly earnings of adult males working fulltime in New South Wales. In 2001 the plaintiff’s after tax earnings exceeded those average weekly earnings by 43%. It was submitted that by reference to average weekly earnings for successive years, and by increasing those earnings by 43%, one could work out what the plaintiff would have earned uninjured. Implicit in that submission was that the plaintiff has been totally unfit for all work since the date of the accident.

57 On behalf of Dolso it was submitted that the plaintiff was totally unfit for work for approximately 23 weeks following the accident but thereafter by reference to the opinions of Dr Chase and Dr Sekel he had a capacity to engage in light duties so that his weekly economic loss should be reduced accordingly. The loss suggested by Dolso was $665 net per week for 65 weeks. For the balance of the period to date, Dolso submitted that the plaintiff retained a residual earning capacity which should be given a monetary value. Dolso submitted that the plaintiff’s past economic loss from 2 April 2003 to date was $500 net per week. No evidentiary basis was advanced to support these somewhat arbitrary figures.

58 The two matters at issue between the plaintiff and Dolso were whether or not some monetary value should be given to the plaintiff’s residual earning capacity and the validity of the proposition put on behalf of the plaintiff that his earnings uninjured should be calculated by increasing average weekly earnings by 43%.

59 In my review of the factual background I set out all of the relevant medical opinion as to the plaintiff’s ability to work after he was injured. All the doctors agreed that he does have some capacity to work. Equally all of the doctors agreed that significant restrictions have to be imposed on his ability to work. Most of the doctors thought that in practical terms his inability to speak English would prevent him from obtaining the only sort of work which he might be able to do, ie work of a sedentary kind such as that of a gatekeeper.

60 What most of the doctors appreciated was that although theoretically there might be jobs which the plaintiff could perform, particularly after retraining, the likelihood of him obtaining and retaining such a job given his age and background was extremely low. I agree with that assessment. I find that for all practical purposes the plaintiff has been unemployable since the date of the accident.

61 With one qualification I accept the premise that an appropriate way of calculating the plaintiff’s loss of earnings is by increasing average weekly earnings of adult males working fulltime in New South Wales by 43%. That approach was arrived at by reference to the plaintiff’s earnings in the tax year ending 30 June 2001 although a similar ratio exists in relation to earlier years. In the absence of other information, such as the post accident earnings of comparable employees at Dolso (information which one would have thought should have been readily available to Dolso), it seems to me that the approach suggested by the plaintiff is an appropriate one. Where I differ is in the increase of 43% on a consistent and continuous basis.

62 It fails to have regard to pre-existing, non-accident related health problems, which we know the plaintiff had in relation to his neck. It is not without significance that these problems with his neck and shoulders re-appeared in 2004. Having regard to that consideration I propose to use the approach submitted by the plaintiff but to increase average weekly earning by 25% rather than 43%.

63 On that basis the plaintiff’s entitlement to past economic loss is $260,670.

64 The plaintiff has received weekly payments of compensation in the amount of $99,694. He has an entitlement to interest pursuant to s151M of the Act on the difference between his past economic loss and the payments of compensation which he has received. It was agreed between the parties that the appropriate rate of interest under s151M is 4.5% per annum. Applying that section the plaintiff has an entitlement to interest on past economic loss of $38,031.

65 In relation to future loss of earning capacity, it was conceded on behalf of the plaintiff that it would not be reasonable to expect the plaintiff to continue to work long hours, including substantial overtime, in the building industry, beyond the age of 60. It was submitted that the plaintiff would have continued to work after the age of 60 but that his earnings should be reduced by half from that date. On behalf of Dolso it was submitted that uninjured the plaintiff would only have worked to age 60 but no evidentiary basis was put forward to support that submission. It seems to me that the concession made on behalf of the plaintiff was a reasonable one and I propose to adopt it in my calculations.

66 The start point for my calculations of future loss of earning capacity is a figure of $1,049 net per week which represents the present average weekly earnings of adult males in New South Wales working fulltime plus 25%. I propose to increase the discount for vicissitudes to 20% to have regard to the notorious volatility in the building industry. I did not apply such a discount for the past because it is equally well known that between the date of the accident and the present time, the building industry in New South Wales has experienced a very prosperous period. The future, however, remains unknown. In line with the submission on behalf of the plaintiff I propose to reduce the plaintiff’s loss of earnings after age 60 by 50%, ie $525.

67 Following that approach the plaintiff’s loss of earning capacity to age 60 is $281,971. For the period from age 60 to 65 the plaintiff’s loss is $65,825. This gives the plaintiff an entitlement for future loss of earning capacity in total of $347,796. The Fox v Wood amount has been agreed at $10,384.

68 The last component to be taken into account is the plaintiff’s entitlement to loss of superannuation, both past and future. The parties agreed that the approach to be followed in that regard was to allow 11% of the net loss of earnings, both past and future. Following that approach, the plaintiff has an entitlement to a loss of past superannuation of $28,674 and of future superannuation of $38,258.

69 The plaintiff expressly declined to make any claim for domestic assistance either past or future and so I have not taken that matter into account.

70 In summary I calculate the plaintiff’s entitlement to damages as follows:

Non-economic loss	$88,393.00
Past out-of-pocket expenses	$68,569.00
Future out-of-pocket expenses	$5,000.00
Past economic loss	$260,670.00
Interest on past economic loss	$38,031.00
Future loss of earning capacity	$347,796.00
Fox v Wood	$10,384.00
Past Superannuation loss	$28,674.00
Future Superannuation loss	$38,258.00
Total	$885,775.00

71 The orders which I make are as follows:

1. I enter judgment in favour of the plaintiff against Dolso in the sum of of $885,775.00

2. Leave is granted to Dolso to deduct from the plaintiff’s judgment the amount of compensation paid to or on his behalf by Proform/Allianz Workers Compensation (NSW) and to pay that amount directly to Proform/Allianz Workers Compensation (NSW), such payment to be taken as part satisfaction of the plaintiff’s judgment and to be compliance with the plaintiff’s obligation pursuant to para 5(b) of the Terms of Settlement filed with the Court on 10 October 2006.

3. Dolso is to pay the plaintiff’s costs as agreed or as assessed.

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