Lawton v Insurance Commission of Western Australia - [2013] WADC 200

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LAWTON -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2013] WADC 200

CORAM: GOETZE DCJ

HEARD: 7-11 OCTOBER 2013

DELIVERED : 20 DECEMBER 2013

FILE NO/S: CIV 1207 of 2011

BETWEEN: JESSE DANIEL LAWTON
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Claim for damages for bodily injury arising out of the use of a motor vehicle - Section 7(3) Motor Vehicle (Third Party Insurance) Act 1943 - Liability and quantum in issue - Turns on own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 7(3)

Result:

Judgment for the plaintiff in the sum of $314,511.41

Representation:

Counsel:

Plaintiff: Mr D R Clyne
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Simon Walters
Defendant: K N Allan

Case(s) referred to in judgment(s):

Nil

GOETZE DCJ:

Introduction

The plaintiff, Jesse Daniel Lawton, was born on 10 May 1986. On 12 August 2008, Mr Lawton rode his two wheel push bike along the footpath of London Street, approaching Baden Street, Joondana.
Mr Lawton alleges that a white Toyota HiLux, driven by an unknown male person with a male passenger, was proceeding along London Street in the same direction as himself. The occupants yelled at him. As Mr Lawton crossed the intersection of Baden Street, the Toyota HiLux was allegedly so driven as to collide with the rear of his bike, thereby knocking him to the ground and causing bodily injury, loss and damage.
Mr Lawton alleges that the Toyota HiLux was then driven away from the scene and its driver and passenger have never been located and identified.
In circumstances in which the driver of a motor vehicle has caused bodily injury by negligence arising out of the use of a motor vehicle but, the identity of the vehicle cannot be ascertained, any person who could have obtained a judgment in respect of that bodily injury against the driver of that vehicle may obtain by action against the Insurance Commission of Western Australia that judgment which, in the circumstances, he could have recovered against the driver of the vehicle, provided certain conditions have been met ‑ s 7(3) Motor Vehicle (Third Party Insurance) Act 1943.
In this case, the Insurance Commission accepts that the required conditions have been met. Accordingly, it is only necessary for Mr Lawton to prove on the balance of probabilities that the driver of the HiLux motor vehicle negligently caused him bodily injury. If so proved, Mr Lawton can obtain judgment against the Insurance Commission.
The Insurance Commission has denied that Mr Lawton suffered injury by reason of the alleged negligence of the driver of the HiLux. The defence is that Mr Lawton simply fell off his bike and caused his own injuries.
Even if Mr Lawton proves that the driver of the HiLux was negligent and thereby caused his injury, the Insurance Commission has put in issue the quantum of Mr Lawton's damages and in particular, with respect to his economic loss and his failure to mitigate those damages.

Liability

Mr Lawton's evidence

Mr Lawton's evidence was that he was riding his bike from his home, to his mother's home. He continued:
As I was riding along London Street, at some stage there was a – a white ute and it – it got my attention because the man was – the two people in it were yelling. I'm not sure what they were yelling or why, but it wasn't exactly uncommon. I mean I've done a lot of riding and I've been – I've had people abuse me before, sort of.
Were you riding, on the street?‑‑‑I was riding on the footpath.
Yes?‑‑‑And yes, as I was coming down towards Baden Street they [came] right up next to me. I could see the – the driver had a very red face and appeared to be shouting. He was – yeah, he looked very – he looked furious, so yeah. And the young – yeah, and he would have been maybe between 40 and 50, that guy. The young person to his left was – yeah, hanging out the window yelling at me, yeah. I know the driver was wearing blue overalls and I'm not sure what the passenger was. And anyway, then – yeah, as I continued down I looked to my right and they were still – still there. I – I was wanting to cross. I wasn't actually expecting any problem with them at all. Yeah, I then – yeah, they weren't indicating. They were quite – quite close behind me and I – yeah, as I crossed the road the – about the middle of the intersection there – the middle of the – between the – that island, the back of the bike suddenly pushed in from under me basically, and the bike shot out to my left and I suddenly went with a lot of force along the road and I – I seemed to get kind of – it seemed like being dragged cos I seemed to go a lot faster suddenly than I was before and hit the – hit the island and bounced up off my chin onto the keep left sign.
Were you wearing a helmet?‑‑‑I believe so.
Do you recall anything else that you noticed about the – the passenger that was leaning out the window?‑‑‑The passenger, apart from being very young – when I say young, 18 maybe. I would have imagined he would have been a trainee or the son of the person he was with. And yeah, they were in a white Toyota HiLux so – yeah.
In his evidence‑in‑chief, Mr Lawton did not specifically state that the Toyota HiLux struck his bike.
At this point, it is pertinent to note that as a result of this incident, Mr Lawton suffered a severely comminuted fracture of the right upper arm.
In his cross‑examination, Mr Lawton's evidence was to the effect that he was riding at approximately 20 km per hour. He had given attention to the HiLux 50 m or so prior to the intersection of Baden Street. It slowed down, so that it followed him and drove alongside him at the same speed. He said that 'it could easily swerve in and tap' his bike in the intersection.
Mr Lawton said he felt a great impact, which pulled him along the road.
Mr Lawton agreed he was suggesting the driver of the HiLux was able to turn it into Baden Street, hit his bike and then continue along London Street. He was not sure whether the HiLux then proceeded along London Street or completed a turn and proceeded west along Baden Street. However, he imagined that the vehicle was driven straight on along London Street.
Mr Lawton agreed that a person identifying himself as a fifth year medical student was the first person to attend him after he had suffered his injuries. He did not provide this person with any detail of the incident. He thought it did not matter. He was in absolute agony. He was concerned that he was 'going to lose [his] arm'.
Mr Lawton did not dispute the evidence of the ambulance and police officers who attended him at the scene, namely Madelyn Coertzen and Senior Constable Robert Townshend respectively, that they each separately asked Mr Lawton what had happened to him and he replied separately to each of them that he did not know how it was he came to be injured on the roadway.
In answer to further questions from Ms Coertzen, Mr Lawton was however, able to tell her relevant contact details for his mother and also, the nature of medication he was then taking.
Three weeks after the incident on 2 September 2008, Mr Lawton gave notice of his intention to make a claim against the Insurance Commission by written notice to it detailing the circumstances of the incident as being:
knocked off bike due to forceful impact from behind – white ute yelling at me seconds beforehand, and I passed it and was then knocked to the ground.
An independent investigator instructed by the Insurance Commission took a statement from Mr Lawton. On 3 November 2008, Mr Lawton signed that statement and provided it to the police as part of his written report relating to the incident. In that report, he described the vehicle concerned as a two‑door white Toyota HiLux. He was not sure of the description of the driver but, the passenger had a beard and a red face. He handwrote in his report that he:
was riding pushbike in a north direction, a white ute was yelling at me while I was on the footpath.
As I crossed Baiden [sic] Street an impact hit the back of my bike and I was draged [sic] along the Road.
Read attached [statement] for details.
Counsel for the Insurance Commission, Ms B Mangan, tendered into evidence Mr Lawton's statement to the investigator. This statement included at [27], that when Mr Lawton was at about the centre of Baden Street approaching the traffic island in the middle of that street, he
suddenly felt a big impact to the rear of my bike.
At [31]:
I looked around and did not see what had hit me and I do recall seeing other vehicles just driving past me. I even remembered see [sic] a bloke in a blue coloured Ute driving past and smiling at me.
Mr Lawton was also cross‑examined about inconsistencies between his evidence and his earlier statement to the Insurance Commission's investigator. He conceded that in his statement he had indicated traffic behind him was merging into one lane, whereas in his evidence, he said the traffic was not merging but rather, it was splitting into two lanes. Photographs of the roadway indicate his evidence was correct, and his statement was incorrect.
Further, in his evidence‑in‑chief he said it was the driver who had a very red face, whereas in his statement to the police, the passenger was the person with the red face.
He also said in evidence that the Toyota HiLux was driving alongside him, whereas in his statement, he said the vehicles on London Street were travelling at a speed greater than he was.
Mr Lawton acknowledged that he did not have a memory of what had happened to him until four days later when he was in Sir Charles Gairdner Hospital.
During the course of his cross‑examination, I asked Mr Lawton to explain, in his own words, what he meant by saying that his memory came back to him four days after the incident. His response was:
I began to to, - 'Oh' ‑ well, okay, people were saying, you know, 'What ‑ what do you – how did this happen?' And I was start – I was saying, 'Well, there was that – that ute there'. And yeah. And that was basically – and then I ‑ I‑ it – I pieced it together, yeah.
When Mr Lawton attended upon Dr Peter Winterton, general medical practitioner, he commented to Dr Winterton about the incident. Dr Winterton reported:
Mr Lawton tells me that there is some doubt as to how the accident occurred, especially so since he has no recollection.
This report followed a medical consultation with Dr Winterton on 28 June 2010 about which Mr Lawton said:
I vaguely discussed with him that I'd been in a traffic accident and I did not properly go into details about it. I didn't – I didn't want to sit there explaining over it with him and I didn't think it mattered for him to know.

Other witnesses as to liability

Mrs Olga Sodano

Mrs Sodano lives on the corner of London and Baden Streets, Joondanna. She was in her backyard tending her garden when she heard yelling and a rolling noise. She wanted to see what was going on and so she ran from her backyard, along the side of her house bordering London Street and into her front garden from where she looked across the fence and saw a male person lying on the median strip of Baden Street alongside his bike.
Mrs Sodano's immediate reaction was to seek help from her neighbour, Marcel Hulshoff, who lived at the rear of a battle-axe block on the far side of her house. Mrs Sodano and Mr Hulshoff then attended the scene.
Mrs Sodano further explained that she probably heard three or four male voices yelling. The sound originated from around the median strip in London Street towards the front of her home. She described the yelling as being angry. The rolling noise she heard was a 'big noise … but not a bike', originating from a position in the centre of London Street, to the north of Baden Street.
Ms Mangan criticised Mrs Sodano's evidence by reason that, on 23 January 2010, Mr Lawton's mother obtained a signed statement from her in English but, some of the words used in that statement were beyond the comprehension of Mrs Sodano who, from time to time during her evidence, required an interpreter. It can be inferred that by this time, liability for Mr Lawton's claim had been denied by the Insurance Commission thereby prompting Mr Lawton's mother to seek out evidence to assist her son in his claim. It was prior to Mr Lawton's first attendance upon Dr Winterton referred to above.
Further, Ms Mangan was also critical of Mrs Sodano because approximately one year after the incident, Mr Stan Wojtasiak, an investigator from the Insurance Commission, attended on Mrs Sodano and he gave evidence that, at that time, she was unable to recall anything of this particular incident. He said she told him there were many motor vehicle crashes at the corner outside her home. Mrs Sodano did not recall Mr Wojtasiak coming to see her.

Marcel Hulshoff

Mr Hulshoff gave evidence that Mrs Sodano came to his home and reported the incident to him. He said they both walked to the intersection where he saw a male person lying on the intersection median strip in Baden Street at the corner of London Street. This male was being attended to by a medical student, Gareth Wahl, who lived next door to Mrs Sodano and in front of Mr Hulshoff's home.

Gareth Wahl

Dr Wahl gave evidence that, in 2008, he was a fifth year medical student. On 12 August 2008, he was watering his front garden when he heard somebody shout 'oh shit'. He moved to a position in his garden from where he saw Mr Lawton lying on the median strip. As he did this, a neighbour from across the road ran along Baden Street. Dr Wahl moved towards Mr Lawton and was close enough to Mr Lawton to see that he had an open fractured arm and so he went back to his home to collect a first aid kit. He then returned and attended Mr Lawton until the ambulance officers arrived.
The neighbour who had been running along the road was presumed by Dr Wahl to have been speaking by mobile telephone to St John's Ambulance however, Dr Wahl also telephoned the ambulance service to provide further information in terms of the injuries suffered by Mr Lawton.
Dr Wahl said he was the first person to reach Mr Lawton. The male neighbour he saw from across the road arrived at around the same time or a little after he did. Subsequently, some nurses also provided assistance.
Dr Wahl removed the pushbike from the median strip as there was limited room on that strip and subsequently, he took the bike to his home for safe keeping until it could be collected. He noticed there was only damage to the handlebars. It should also be noted that the attending police did not find any damage to the bike.
Further, Dr Wahl confirmed that at the time, he was a fifth year student, which information he relayed to Mr Lawton at the time of the incident.
Dr Wahl indicated that Mr Lawton was in pain.

Dr Nick De Felice

Dr De Felice was not a witness to the incident. He is a psychiatrist consulted by Mr Lawton in September 2011. Mr Lawton told Dr De Felice that, at first, he was blank and vague about the incident but, in 2011, he had a memory of it.
Mr Lawton reported that after the incident, he had had nightmares of being crushed and dreams in which he was 'chased by the ute that hit me'. In the previous couple of months prior to consulting Dr De Felice, Mr Lawton had only had a few nightmares. He said this incident also came to his mind throughout the day.
In his report, Dr De Felice said Mr Lawton had described a number of symptoms to him. Dr De Felice found it difficult to be certain of the precise diagnosis and said a case could be made for Mr Lawton having suffered post‑traumatic stress disorder. However, Dr De Felice said he had been conservative in his assessment of Mr Lawton in not making a finding of post‑traumatic stress disorder.
In evidence, Dr De Felice opined that Mr Lawton's initial inability to recall the incident was consistent with, and could be the result of, a post‑traumatic stress disorder. Dr De Felice said Mr Lawton's early amnesia could alter over time.
Two further matters arise from the evidence of Dr De Felice. First, the fact of amnesia followed by recall is more supportive of a diagnosis of post‑traumatic stress disorder. Secondly, people with such disorder usually have dreams of the incident in which they suffered trauma, however, some people with such disorder do not have dreams of the specific incident.
It should also be appreciated here that, in June 2012, Mr Lawton consulted Dr Andrew Harper, occupational and public health physician. Mr Lawton told Dr Harper he was still having nightmares a few times per week of being chased and daily flashbacks of the incident. This information was not put to Dr De Felice for him to comment upon.
Dr De Felice believed that shock following the incident is also an explanation for Mr Lawton's initial amnesia and later recall of it.
Dr De Felice also said that Mr Lawton's amnesia was consistent with concussion following a period of unconsciousness but, it seems to be agreed between the parties that unconsciousness did not occur. However, Dr De Felice said that if Mr Lawton was not concussed then, there is no medical reason to believe that he does not now have an accurate memory of this incident.
Dr De Felice also agreed that Mr Lawton's inability to recall the incident at first is consistent with him now fabricating his evidence against the unknown driver but, Dr De Felice could not make any comment about that. Further, if it had been suggested to Mr Lawton what might have happened in the incident then, Mr Lawton could develop a recollection of events, including a false recollection but, one he nevertheless believed.
There are therefore different reasons as to why Mr Lawton may well have had a true amnesia and subsequent recall of events following this incident but, Dr De Felice was not able to distinguish between them.

Findings on liability

Mr Lawton's evidence detailed the presence of the HiLux, its occupants and their yelling. He also said that when he was between the footpath and the median strip of Baden Street:
the back of the bike suddenly pushed in from under me basically, and the bike shot out to my left.
Mr Lawton gave evidence that there was:
a great impact and it pulled me along the road.
He also said:
Well, there was that – that ute there. And yeah. And that was basically ‑ and then I – I – it – I pieced it together, yeah.
Further:
I began to go, 'Oh' - well, okay, people were saying, you know, 'What - what do you - how did this happen?' And I was start - I was saying, 'Well, there was that - that ute there'. And yeah. And that was basically - and then I - I - it - I pieced it together, yeah.
In cross‑examination, Mr Lawton denied reconstructing his evidence. He firmed up on his evidence when it was put to him he had no concern about the driver of the HiLux to which he replied:
I didn't believe he was going to – going to ram the back of my bike
and
[the driver] could easily swerve in and tap [my bike].
It was also directly put to him, that:
Now, are you suggesting that this driver was travelling along that roadway, you were travelling along the path which is shown in – in the previous photograph, and the driver managed to swerve his car in ‑ ‑ ‑?‑‑‑Mm hmm.
‑ ‑ ‑ hit you and then proceed off down London Street?‑‑‑Yes.
Mr Lawton said in each of his statement and report to the Insurance Commission that he felt 'an impact' to the back of his bike. He repeated this in his cross-examination. This is consistent with his evidence-in-chief that:
The back of the bike suddenly pushed in from under me … and the bike shot out to my left and I suddenly went with a lot of force along the road.
I accept that Mr Lawton, in his own way, did not want to discuss the incident with Dr Winterton. He had consulted Dr Winterton for medical treatment for his bodily injury, not for legal advice. He further commented upon this consultation with Dr Winterton and said:
I've described to him the way it's been – the way people have talked about it back to me basically.

This is an unequivocal statement by Mr Lawton of the way others have talked 'back' to him about the incident. It is consistent with his evidence in cross‑examination that people asked him how the incident happened. There is no evidence to suggest that Mr Lawton has been advised by other people about what happened in the incident or what he should say to support his claim such that he could develop a recollection of events from the suggestions of other people to Mr Lawton of what happened in the incident, resulting in a false recollection but, one he nevertheless believed.
It is not to the point that Mr Lawton has previously had two accidents on his bike. One accident resulted in a fall and injury to his wrist and in the other, his bike collapsed due to rust resulting in a broken collarbone. It is also not to the point that he has misinformed hospital staff that he damaged a television set when he hurt his right hand.
It is Mr Lawton's evidence in court which is to be considered. His oral evidence contradicted his earlier statement to the Insurance Commission investigator concerning the description of the occupants of the vehicle, the speed of the vehicles and the merging and splitting of traffic. That is a matter taken into account when considering his credibility. However, the variation in his pre‑trial statement and his evidence at trial does not affect my assessment of his credibility on this issue. None of these matters relate directly to his bike being struck by an unidentified motor vehicle.
Mr Lawton's recall of the incident is not simply a reconstruction of events. He has provided primary facts in his evidence ie, he identified the presence and line of travel of the HiLux and its occupants and the fact that they were yelling at him. He also described an impact to his bike and his movement along the road with force. He did not see the HiLux strike his bike, but that is how he 'pieced it together'. He has really drawn the inference which is open on the evidence. He cannot be criticised for having done that. Further, his evidence and his police report including his statement to the Insurance Commission are all inconsistent with a fall from his bike. Again, caution has been required to ensure that a false recollection of events has not arisen from suggestions to Mr Lawton of what happened in the incident.
In addition to this, the case advocated on the part of Mr Lawton is corroborated to a certain extent by Mrs Sodano who heard three or four males yelling. She also heard 'a rolling' noise, the latter of which counsel for Mr Lawton, Mr D R Clyne, submitted could be the noise of a vehicle with off-road tyres and therefore consistent with a HiLux ute. However, there was no evidence of this.
Mrs Sodano immediately went to investigate and saw only a male person lying on the median strip of Baden Street. Mrs Sodano was the first witness to see Mr Lawton lying on the median strip. The only reason she investigated was because she heard three or four male voices yelling and the rolling noise. Upon reaching her front fence, she saw only Mr Lawton lying on the median strip. The short time between what she heard and what she saw is important. When she first saw Mr Lawton, nobody else was then present to account for the yelling she heard. Whoever else had been there had already departed from the scene. Mrs Sodano immediately sought help from Mr Hulshoff.
Notwithstanding the criticisms of Mrs Sodano's evidence as outlined above, there is no or no sufficient reason to not accept Mrs Sodano's evidence about the yelling and the rolling noise, her view from the front garden and her fetching of Mr Hulshoff as all being part of the same event.
Dr Wahl heard some shouting and investigated. It is not suggested that this shouting was the same yelling which Mr Lawton and Mrs Sodano heard. Dr Wahl saw Mr Lawton lying on the ground, went to fetch his first aid kit and attended Mr Lawton. He was the first person to do so.
By the time Mr Hulshoff arrived, Dr Wahl was already assisting Mr Lawton.
Mr Lawton says he was attended to by a fifth year medical student and that matches the description at that time of the now Dr Wahl and is consistent with Dr Wahl's evidence that he told Mr Lawton he was a fifth year medical student.
At the scene of the incident, Mr Lawton was in absolute agony, worried that he was going to lose his right arm. Dr Wahl said Mr Lawton was in pain and with a wound of that kind, Dr Wahl expected he would have been in pain.
True it is however, that Mr Lawton told the ambulance and police officers that he could not remember what happened in the incident. He had no memory of it for the next four days.
It is also the case that neither Dr Wahl nor the police noticed any damage to Mr Lawton's bike. There was no expert evidence to say that if the Hilux had struck the bike then, there must be or would be likely to be damage. Plainly, that would not necessarily have to be the case.
There is support for Mr Lawton's evidence that there was yelling from a passing motor vehicle. There was no‑one else in the vicinity when Mrs Sodano looked across her front fence who could have been responsible for the yelling which she heard only moments before. Mr Hulshoff and Dr Wahl each arrived at the scene shortly after the incident. No‑one else was reported to have been seen by either of them. Whoever had been yelling had very quickly left the scene.
Mr Lawton's initial amnesia and subsequent recall of events four days later is consistent with either the true diagnosis being post‑traumatic stress disorder with resulting amnesia and later recall alternatively, shock with associated amnesia and subsequent, recall as described by Dr De Felice.
It is not known what Dr De Felice might have made of Dr Harper's evidence about Mr Lawton's complaint of continuing nightmares in 2012. However, it does not detract from Mr Lawton's case.
It seems to be agreed that Mr Lawton did not lose consciousness in the incident. As such, Dr De Felice said there is no medical reason to suggest that Mr Lawton cannot now have an accurate memory of this incident. There is therefore a medical reason for Mr Lawton's initial amnesia and later recall of the incident.
There is no or no sufficient reason to not accept Mr Lawton's evidence. He gave that evidence in a frank and open way. He is not a sophisticated person. His subsequent recall of events cannot be explained by other people telling him what occurred in the incident. There was no evidence of that having happened. I accept his evidence, and find it more probable than not, that there was a Toyota HiLux with its two occupants yelling at Mr Lawton as he rode his bike along the footpath and that his bike was struck by the HiLux utility which then immediately drove off. That is why Mr Sodano could not see anyone responsible for all of the yelling she heard.
This finding is also consistent with Dr Winterton's evidence as both a bike rider himself and his expertise in paediatric forensic medicine analysing the cause of children's injuries. Dr Winterton opined that Mr Lawton's elbow injury is not consistent with a fall from his bike. If he had fallen then, Dr Winterton expected that Mr Lawton would be more likely to have put his hand out to prevent his fall and that would more likely cause a wrist injury rather than an elbow fracture.
It is now necessary to assess Mr Lawton's injuries, loss and damage.

Assessment of damages

Nature of injuries

Mr Lawton was 22 years of age at the time of the incident. He suffered a severely comminuted, complex intra‑articular fracture through the distal end of his right humerus involving the medial and lateral condyles. There was some anterior displacement of fragments, which remained in articulation and also soft tissue irregularity on the posterior aspect of the arm.
It appears Mr Lawton suffered a right shoulder injury in that his shoulder was dislocating subsequent to the incident. He also suffered a left hip soft tissue injury with discomfort, a chipped front right upper incisor and superficial grazing.
Following the incident, Mr Lawton was taken by ambulance to Sir Charles Gairdner Hospital. On the following day, he was taken to theatre for reduction and internal fixation of the fractured right elbow. His arm was placed in a cast for six weeks, allowing for a range of movement of 45 – 90 degrees. His right shoulder kept dropping out of place, causing pain after surgery.
It appears that Mr Lawton undertook some physiotherapy. He was discharged from hospital on 18 August 2008 and reviewed on 28 August, 10 September, 8 October and 19 November 2008. He was further reviewed in January, March and July 2009.
The medical records provided do not include a report from the operating surgeon or those who reviewed him. There is no report from the hospital but, the hospital file was received into evidence.
Six weeks after surgery, Mr Lawton's right arm was placed in an articulate brace for a further three months. He underwent physiotherapy for at least six months with the aim of returning to work. However, his elbow then began to lock.
Between March and May 2009, Mr Lawton received injections of celestone chronodose and bupivacaine into his biceps tendon following which, his right arm pain was relieved. These injections were organised by Dr Z Tycherov, general medical practitioner. She has not provided a report but, her medical records were received into evidence.
On 7 August 2009, Mr Lawton returned to the operating theatre to remove some of the internal fixation holding his arm together.
In June 2010, Mr Lawton had swelling over the medial epicondyle and Dr Z Tycherov referred him for a further injection of celestone and bupivacaine into the elbow under ultrasound. This was initially helpful. X‑rays failed to reveal any real abnormality in the elbow. The remaining metal was in a complex position.
In June 2010, Mr Lawton began to consult Dr Winterton who reported that Mr Lawton's pre‑incident ADHD did not preclude him from doing physical work but, when this condition was added to his elbow injury from the incident, it made it difficult for him to find work, causing depression.
Then, on 23 March 2011, most of the remainder of the metalware was removed resulting in a material reduction in pain. Dr Winterton thought his problem then was more of a psychiatric nature rather than a physical one and this psychiatric problem was also related to his ADHD.
In May 2011, Mr Lawton was referred to Dr Harper for medico‑legal assessment. Dr Harper reported that Mr Lawton was required to take anti‑inflammatory medication. Physiotherapy had ceased and Mr Lawton was exercising to assist his arm. He had right elbow pain which throbbed and radiated along the length of the forearm on the ulnar side to the fourth and fifth fingers in the hand. Static postures aggravated the pain as did simple tasks like driving, dishwashing and applying pressure to the palm of the hand. He had a slight reduction in movement to the elbow and some reduction in hand dexterity. There was a dull throb in his right shoulder which occurred infrequently and he also suffered mood changes and frequent nightmares. Mr Lawton also had daily flashbacks of the incident. This has relevance to the liability issue as outlined above. His mental attitude improved after most of the metalware had been removed from his arm.
Dr Harper believed Mr Lawton's work capacity in May 2011 to have been significantly compromised. He was incapacitated for occupations including labouring, security work, installing, spray‑coating, truck driving. He could have undertaken full‑time clerical or administrative work and occupations which did not require repetitive use of the right elbow. Dr Harper did not anticipate significant improvement in Mr Lawton's work capacity, which remained compromised. There could also be a further reduction in work capacity later in life due to possible increases in pain and stiffness of the right elbow due to accelerated degenerative changes in the elbow.
In September 2011, Dr De Felice diagnosed an adjustment disorder with anxious mood as a conservative approach to not finding post‑traumatic stress disorder. Mr Lawton also suffered a major depressive disorder subsequent to the incident precipitated by his pain and attendant limitations.
Dr De Felice reported that Mr Lawton was fit to return to a graduated return to work program and that he might quickly return to full‑time work from a psychiatric point of view. The long term capacity for work would not be substantially impaired by psychiatric symptoms.
By September 2011 however, Mr Lawton had been referred to Mr Sean Hamilton, specialist plastic and reconstructive surgeon, who determined that the first requirement was to have Mr Lawton's right arm assessed by reason of numbness affecting Mr Lawton's right trigger and ring fingers. He also had intermittent pain and tingling in his left elbow. To that end, Mr Lawton consulted a neurologist, namely Dr Peter Silbert.
Dr Silbert reported that the need for removal of the metalware from Mr Lawton's right arm had been because of throbbing symptoms involving the medial elbow and numbness of his fingers. The surgery relieved that but, he was still suffering aches in the medial elbow with numbness in the right fourth and fifth digits. He was taking painkillers. He had a positive Tinel's sign over the right ulnar nerve at the elbow in the cubital tunnel. There was diffuse tenderness over the medial epicondyle. He had normal power.
Dr Silbert was not surprised that Mr Lawton had right ulnar nerve irritation considering his injury. Ultrasound confirmed his right ulnar nerve subluxed over the medial epicondyle, both in the extended position and on elbow flexion. This accounted for his intermittent right ulnar nerve symptoms.
Mr Hamilton believed Mr Lawton required further surgery to the right ulnar nerve given his symptoms, the ultrasound study and the nerve conduction studies. Hence, Mr Lawton was referred to Dr Lewis Blennerhassett, consultant plastic and reconstructive and hand surgeon for further surgery. Accordingly, Mr Lawton underwent a further operation on 7 May 2012 for the transposition of the ulnar nerve from one side of his arm to the other. He gave up his employment as a traffic controller with a local government council for this surgery.
A report from Dr Blennerhassett was not provided in evidence.
Mr Hamilton identified a z‑shaped scar on Mr Lawton's upper arm, measuring 7.5 cm, 6.0 cm and 4.5 cm in the posterior aspect of his right elbow.
Dr Harper reported in June 2012 that Mr Lawton was still having nightmares in which he was being chased. These nightmares had stopped temporarily while taking Endep but, had returned after ceasing such medication. He still had daily flashbacks of the incident.
It was thought that Mr Lawton's work capacity would improve but, the extent of any improvement was unknown. It was still necessary to restrict physical right arm work duties.
Mr Lawton received psychological treatment which was helpful. It assisted him to overcome insomnia however, he still suffered mood changes and depression. Dr Harper described his psychological impairment as mild. A psychological report has not been provided.
In October 2013, Dr Harper reported that Mr Lawton still suffered loss of fine movements for clerical work. Heavy activities, physical labour, static postures and manipulative use of the hand were restricted. He had daily episodic hand pain persisting for half an hour and elbow pain which can last for weeks. His left thigh was constantly numb and he had some numbness above the left knee. He had mood changes. He did however have capacity for full‑time work, within limits. This is likely to be permanent, requiring the avoidance of repetitive work with the right arm, fine movements in the right hand and repeated movements including computer use or forceful movements with prolonged static positions. He was unfit to work as a labourer, tradesperson, security installer or computer technician. He would have difficulty doing clerical work.
The Insurance Commission arranged for Mr Lawton to be reviewed by Dr J Rosenthal, specialist in legal and rehabilitation medicine. He first reviewed Mr Lawton in December 2011 and later, in November 2012.
Dr Rosenthal described Mr Lawton's elbow injury as 'nasty … leaving him with a deformed elbow with restricted movement'. He had post‑traumatic osteoarthritis which will probably be progressive with significant permanent impairment.
Even before his ulnar nerve transposition, Dr Rosenthal believed Mr Lawton was unlikely to return to truck driving because of his still arthritic elbow but, he was capable of clerical work. He was a multi‑skilled worker who needed to upgrade his computing skills.
After the transposition surgery, Mr Lawton had elbow stiffness and pain but, improvement in his ulnar neuropathy. He had a 20% loss of use of the right upper limb at or above the elbow. He was incapacitated for dump truck driving but, he had a retained capacity to work in other areas. He could work full time performing conventional truck driving although he could not do repetitive manual work. His employability was significantly reduced. He needed to upgrade his computer skills if he is to work in computers.
In my view, an appropriate award for the physical injuries and the psychiatric insult suffered by Mr Lawton, together with his pain and suffering and loss of enjoyment of life is 25% of a worst case scenario, being $94,750.

Future medical treatment

In September 2011, Dr De Felice reported that Mr Lawton required ongoing medication for 18 – 24 months at a cost of $70 per month and 8 ‑ 10 psychological appointments at a cost of $200 each. Further reviews by a general medical practitioner were required, monthly for one year and then once every two months for a further year. Dr De Felice confirmed these requirements at trial.
In October 2013, Dr Harper recommended ongoing psychological counselling for Mr Lawton at a cost of $2,000 and general practitioner review at a cost of $800.
Dr Winterton said that subsequent to the transposition of the ulnar nerve, Mr Lawton's principal problem has really been of a psychiatric nature which relates to his pre-existing ADHD disorder.
Dr Rosenthal did not consider Mr Lawton required any future medical treatment, apart from ongoing medication. His report was received by consent. He did not identify any need for psychological counselling. However, as Ms Mangan did not seek to challenge Dr De Felice about it in cross‑examination, I will allow such claim.
I will allow further psychological counselling at $2,000, future general practitioner reviews at $800 and future medication costs at $1,000 even though the evidence did not reveal the quantum of such medication costs. It is nonetheless best to make some nominal allowance. The total future medical costs therefore amount to $3,800.

Future non‑medical costs

Ms K Jones, occupational therapist, provided a report dated 2 June 2012 detailing the requirements of Mr Lawton as including the need to update his computer skills, which is a vocational option identified for him by Dr Rosenthal. This will assist in clerical and administrative employment and will require a return to year 12 high school maths, taking one year of study but, presumably only part‑time study and thereafter a 20 week information technology course. After completion, a graduate of the course is likely to earn an income of between $656.70 and $1,154 gross per week. The course costs $845.
As to the other costs identified by Ms Jones, Mr Lawton will in any event require an ergonomically suitable computer chair and other computer equipment, with or without his injuries. The fact that he presently uses a workstation which is far from compliant with ergonomic workstation standards that should apply is not a problem which should be improved at the expense of the Insurance Commission.

The report also indicated Mr Lawton is likely to move from his home to a unit with reduced gardening and maintenance requirements. An allowance for gardening is therefore unnecessary.
Further, most motor vehicles these days are supplied with automatic transmission, such that I am not persuaded Mr Lawton should be compensated for such cost.
The jar opener and steering wheel spinner are low cost items.
I will allow $1,250 for the cost of completing year 12 maths and the computer course and also for the low cost items identified above.

Past economic loss

Mr Lawton completed year 12 high school in 2004, after which he attended TAFE for six months studying security systems and cameras. However, he failed to complete this course because he did not pass mathematics. He worked part time in a video store while studying after which, he could not find work involving security systems until 2007.
It can be assumed that Mr Lawton's only known employment prior to March 2006, being part time at a video shop, produced only a nominal income. Otherwise, Mr Lawton's known work history from his answers to interrogatories is as follows:
(1)March 2006 to April 2006 at Blue Collar People performing labouring work around Perth and earning $523.38 net per week. This was possibly only casual work which he left to go to his next employment.
(2)April 2006 to November 2006 at Gecko Special Coatings coating polyurethane onto industrial equipment and earning $527.40 net per week. This was full time work however, his employer ceased trading and so he lost this employment.
(3)December 2006 to February 2007 at Hicraft Ceilings and Partitions as a truck driver, labourer and tradesman's assistant earning $650 net per week. He left this work due to his non‑suitability to the job in that he did not have a sufficiently satisfactory relationship with his employer.
(4)February 2007 to March 2007 at Blue Collar People performing labouring work at $224.52 net per week. He left this work to take up his next employment.
(5)March 2007 to June 2007 at Ad Tech Services installing security systems and CCTVs earning $514 net per week. He left this work due to an injury following which, Mr Lawton was not able to climb heights for some time. This employment was not kept open for him. The medical records show that he suffered a fractured left clavicle due to a bike accident on 17 June 2007 for which he underwent internal fixation on 2 July 2007.
(6)August 2007 to February 2008 at TRS Traffic Management directing traffic, setting out road work signs and training new staff. He earnt $503.95 net per week and left this work to go to his next employment.
(7)February 2008 to August 2008 at Byrnecut Mining in Telfer working as an underground truck driver earning $991.13 net per week. His tax return for the 2008 year shows that he earned $24,464 gross between 21 February 2008 to 30 June 2008. His roster was two weeks work and one week off work.
It is not known what level of income any of the above employment would pay from the date of the incident to the present.
From his tax returns, Mr Lawton received the following gross taxable and gross earned incomes, for the financial years from 2006 to 2010:

Year ending

Gross taxable income

Gross earned income

2006

$20,211 (amended)

$15,668 (as lodged)

2007

$16,585

$16,384

2008

$40,764

$39,279

2009

$18,569

$ 9,744

2010

$16,071

$ 3,995

The gross taxable incomes outlined above exceed gross earned incomes by reason that, from time to time in each year, Mr Lawton was also in receipt of Commonwealth benefits. The 2007 tax return suggests that either the periods of work or the earnings in the answers to interrogatories for that year might not be correct. The answers were not challenged at trial. Given the precise net weekly figures provided and the generalization of the specified periods of work, it is probably the latter which are not correct.
It appears that Mr Lawton has not earned a taxable income beyond the 2010 tax year.
Mr Lawton's most profitable employment was at Byrnecut Mining, which work he held from 21 February 2008 until 25 October 2008. That employment however, had its own problems for Mr Lawton.
On 11 and 12 March 2008, Mr Lawton took two days sick leave from Byrnecut Mining. He took leave on 30 and 31 March 2008. Between 2 and 8 April 2008, he took one day as leave and six days as unpaid leave due to insufficient sick leave having accrued to him. He was having trouble adjusting to shift work and found sleeping difficult.
Mr Lawton underwent a disciplinary proceeding on 3 June 2008 for failing to follow tagging procedure. From 5 June 2008 until 1 July 2008, Mr Lawton had four days leave, eight days unpaid leave and 14 days 'R & R' due to a work related 'slipped disc'. On 6 June 2008 in metropolitan Perth, Mr Lawton fell from his bike and suffered a right wrist injury. The medical records reveal that he was anxious and having episodes at work in which he did not know what he was doing and once, he became lost in the mine. He broke down crying at work. He had difficulty sleeping and adapting to shift work. He was prescribed medication to assist.
Mr Lawton had two days sick leave on 11 and 12 July 2008. He last worked on 1 August 2008 and was injured in the subject incident on 12 August 2008. His employment was terminated on 25 October 2008 after an absence of three months.
After the incident, Mr Lawton had his right arm set in a cast for six weeks and then in a sling for about another three months. In these circumstances, Mr Lawton was probably unable to work at all until the end of 2008.
Mr Lawton had injections into his arm in March and May 2009 and then, he had some metalware removed from his arm in August 2009. He received a further arm injection in June 2010.
In October 2010, Dr Winterton reported it would be unlikely that Mr Lawton would be able to return to truck driving in an underground mine due to his lack of physical rigour and dexterity.
In March 2011, most of the remainder of the metalware was removed from his arm.
In May 2011, Dr Harper reported that Mr Lawton had a marked reduction in pain once the metalware had been removed and he was then capable of full time clerical and administrative work and occupations not requiring repetitive use of the right elbow. This would equate to Mr Lawton working with computers. Dr Harper also reported that Mr Lawton was undergoing a Certificate 3 mining course on surface extraction, hoping to gain work as a trades assistant on a mine site.
Apart from these reports from Dr Winterton and Dr Harper, there is no medical evidence in respect of Mr Lawton's work capacity between the incident and May 2011.
In August 2011, Dr Winterton reported that the removal of metal from Mr Lawton's arm would facilitate a full recovery and the return to his previous work but, Mr Lawton did not return to that work. He still had pain and altered sensation in the right ulnar nerve.
Dr De Felice reported in September 2011 that Mr Lawton was psychiatrically fit for a graduated return to work program and that he might quickly return to full time work.
In May 2012, Dr Blennerhassett transposed Mr Lawton's right ulnar nerve from one side of his arm to the other.
Dr Winterton gave evidence that subsequent to the transposition of the ulnar nerve, Mr Lawton's principal problem has been psychiatric in nature and related to his pre-existing ADHD but, the incident 'had not done him the world of good'. Dr Winterton thought Mr Lawton could work for example, in security in a control room. He could also perform other work, such as a laboratory technician.
In October 2013, Dr Harper reported that Mr Lawton still suffered loss of free movement for clerical work and psychological problems. Heavy activities, static postures and manipulative use of the hand were also restricted.
After the incident, Mr Lawton worked at the end of 2009 for probably two months as a rustproofer using a spray gun. He worked as a traffic controller for a few months from January 2011, until his surgery in March 2011. He did 3 ‑ 6 months volunteer work building computers for the disabled in 2011. In July and August 2012, Mr Lawton tried bookbinding for about two weeks. Apart from his work as a rustproofer, it is not known what income he received for this work.
Mr Lawton gave evidence that he checks the website 'Seek' for employment.
In June 2013, Mr Lawton was offered a job as a truck driver in Karratha but, that offer was withdrawn due to the economic down turn. He has not otherwise been successful in obtaining employment and although he has applied for work, the details thereof were not provided in evidence. His attempts to obtain employment do not appear to have been a sustained effort. It cannot be said that his incident caused injuries have prevented him from obtaining employment since 2009.
Professor Charles Mulvey from Labour Net provided a report setting out employment income and availability for persons working as a bookbinder, road traffic controller, HR truck driver, computer technology worker, salesperson, administrative assistant and customer service officer. Most of these positions are capable of providing an income in excess of $1,000 gross per week, but there are limited employment opportunities for some work, including road traffic control work. There are also ample opportunities for work in truck driving. Mr Lawton has previously engaged in both of these occupations.
It would seem from Professor Mulvey's report that work with computers could return $1,320 gross per week, after some training and so too could road traffic control work and truck driving earn around $1,000 to $1,300 gross per week respectively. These are average earnings. Mr Lawton may well be at the lower end of these average earnings and regard should be had to the report of Ms K Jones as to gross earnings in clerical and administrative employment upon completion of the computer course she proposed.
In summary, the following findings can be made:
(a)Mr Lawton was probably totally unfit for work whilst his arm was in a cast for six weeks and then in an articulate brace for another three months. This would have been until about the end of 2008. He may then have received physiotherapy but, he was probably fit for restricted clerical or administrative work from this time on, as he was in May 2011 when Dr Harper certified him to be fit for such work.
(b)It is unlikely that, even without his incident injury, Mr Lawton would have been able to retain his employment at Byrnecut Mining in Telfer beyond the end of 2008. He had difficulty performing that work and was frequently absent from it.
(c)Mr Lawton had injections into his elbow between March and May 2009 and some metalware was removed from the arm in August 2009.
(d)He worked as a rustproofer for two months at the end of 2009 but, he gave that work up as his injuries made it too difficult for him to continue such work.
(e)Whatever work capacity Mr Lawton had in 2009 must have continued throughout 2010, although he had a further injection in June 2010.
(f)For a few months, Mr Lawton worked as a traffic controller but, he gave that up in March 2011 when he had most of the remainder of the metalware removed from his arm. His work capacity then increased.
(g)For three to six months during 2011, Mr Lawton built computers for the disabled.
(h)Dr De Felice acknowledged Mr Lawton's physical restrictions from March 2011 and said Mr Lawton also suffered a psychiatric illness which Dr De Felice did not believe would be a long-term problem. He recommended a graduated return to work in September 2011.
(i)In May 2012, Mr Lawton's ulnar nerve was transposed. His work capacity was then probably further improved.
(j)For about two weeks in July and August 2012, Mr Lawton worked as a bookbinder but, that was too difficult for him. This was his last employment.
(k)Mr Lawton still presents with a reduced earning capacity given his permanent physical incapacity resulting from his elbow injury. Any psychiatric injury should quickly resolve upon a resumption of work and some psychological counselling, which he is now receiving.
(l)Whilst Mr Lawton is now physically incapacitated for some work, he at least retains a physical capacity for limited work. He has limitations in fine movements involved in clerical work, heavy activities involved in physical labour, static postures and manipulated use of the right hand, such as in trade work.
(m)Mr Lawton is now receiving psychological assistance. He may require some re-training, for example, in computers in order to return to clerical or administrative work.
(n)Between 2006 and 2008, Mr Lawton earned around $525 net per week, including as a truck driver. He can still drive certain trucks but, not dump trucks. At the time of the incident, he drove dump trucks. Dr Rosenthal did not rule out a return to dump truck driving.
(o)Mr Lawton is capable of work and has been since 2009. He is now capable of earning up to $1,000 gross or $825 net per week or even more based on Professor Mulvey's report. It seems his difficulty is obtaining work but, there is a paucity of evidence as to his attempts to find work.
(p)On the evidence, it cannot be said Mr Lawton has attempted to mitigate his losses by actively applying for employment and seeking a return to full time work.
(q)It is not known what Mr Lawton's 2006 to 2007 earnings would equate to in the years from 2009 to the present. The limited medical evidence does not detail Mr Lawton's work capacity throughout much of this period. Further, it is not known with any confidence what unsuccessful attempts Mr Lawton truly made at gaining employment during this period. It is also not known why he was unsuccessful and whether his lack of success relates to his incident injuries or not.
For these reasons, it is not possible to calculate Mr Lawton's past loss of earning capacity with any precision. The onus of proof rests upon Mr Lawton to demonstrate that loss of capacity.
Doing the best I can, I will allow a total loss of earning capacity calculated at the Byrnecut Mining rate of pay from the date of the incident to the end of 2008 for the reason that Mr Lawton's arm was in a cast and then in a sling until about the end of 2008. This would have prevented him from working at all. He was injured whilst in this employment. He therefore lost 20 weeks at $991.63 net per week, ie, $19,832.60. This cut‑off date has been imposed because it is unlikely that Mr Lawton would have worked at Byrnecut Mining for any longer period of time.
Next, Mr Lawton underwent injections between March and May 2009 and then, in August 2009, he had surgery to remove some metalware from his arm. Mr Lawton may have required an unknown period off work for these injections and surgery but, there is no evidence about this. There is also an absence of medical evidence as to his capacity for work from the date of the incident to the end of 2009 however, it is more probable than not that, save for his injections and surgery, he had much the same capacity throughout 2009 as he did at the end of 2009 when he engaged in rustproofing for 30 hours per week over two months earning $3,995 gross ($3,655 net) as detailed in his 2010 tax return. He found it difficult to sustain this particular work but, he was no doubt capable of alternative lighter work over 30 hours per week, or even longer.
Before proceeding further, it is necessary to comment upon Mr Lawton's work in rustproofing. His evidence was that he did this for 'around one month'. He told Dr Harper that it was 30 hours per week over a two month period. His earnings are disclosed in his 2010 tax return as set out above from which a net weekly income of $456.87 can be calculated over an eight week period. On the basis of his previous earning history, this work is unlikely to have been for only one month. However, it could have been anywhere between a 6 to 10 week period but, there is no evidence of the start and finish dates of this work. A further difficulty is that Mr Lawton said his employer 'ended up paying me off'. This tends to indicate that he received a lump sum upon termination of his employment.
In these circumstances, I am not prepared to act on the $456.87 net 30 hour per week earnings as a yardstick for 2009 or beyond. I am also not prepared to calculate an income of what Mr Lawton could have earnt if he engaged in rustproofing for 40 hours per week and to use that as a carry forward figure in later calculations.
An allowance of 18 weeks full loss of earning capacity can be made for 2009, calculated by reference to the need for injections of say, three weeks each and his surgery of say, 12 weeks. This can be calculated at his 2007 ‑ 2008 rate of pay before Byrnecut Mining being say, $525 net per week and amounts to $9,450.
For the remainder of 2009, an allowance of a further 34 weeks can be made at $75 net per week on the basis that Mr Lawton had capacity to earn $450 net working a 30 hour week in 2009, which is $75 net per week less than the $525 to which reference has been made already. This loss is $2,550. The total loss for the 2009 year is therefore $12,000.
Thereafter in 2010, Mr Lawton suffered a lack of vigour and dexterity but, there is no reason to consider he had anything other than the same limited work capacity as he had in late 2009. This was a constant until 23 March 2011 when he had most of the remainder of the metalware removed from his arm and his physical work capacity then improved. From then, Dr Harper said he could work full time in clerical and administrative work and occupations not requiring repetitive use of the right elbow. In September 2011, his psychiatric condition was not a long term problem according to Dr De Felice, who recommended a graduated return to work. He further reported that Mr Lawton might quickly return to full time work.
In May 2012, the transposition surgery further improved Mr Lawton's physical capacity. Thereafter, his physical condition appears to have become static.
Dealing then with the period from 2010 to the present, it can be observed that Mr Lawton no doubt required time off work for surgical purposes. First, in 2011 to remove most of the metalware in his arm and secondly, in 2012 for the transposition surgery. He would have required a period of time to recuperate after each surgery. If 12 weeks total incapacity for each is allowed at say, $725 net per week then, a loss of $17,400 can be determined.
For the remaining period of 184 weeks from 2010 to date at a loss of $100 net per week, there is a loss totalling $18,400.
In determining the net weekly sums of $725 and $100, consideration has been given to Mr Lawton's pre-incident work duties and earnings history, his incident caused injuries, including his incident caused continuing psychiatric disability which is likely to quickly resolve once he attempts to work and completes his psychological treatment, his post‑incident employment as a rustproofer, traffic controller, computer builder and bookbinder even if not wholly successful, his further improved condition after each of the 2011 and 2012 surgeries and his failure to actively go out and find work within the constraints of his permanent physical incapacity. I have also had regard to the possible earnings reported by Ms K Jones and Professor Mulvey above. Given that Mr Lawton engaged in paid work as a road traffic controller for two months or say, eight weeks and as a bookkeeper for two weeks, it is necessary to exclude 10 weeks from the period 2010 to the present.
Given the above, past loss of earning capacity totals $67,632.60, plus interest of $8,724.60 at 6% per annum for 4.3 years, to equate to $76,357.20.

Provision must also be made for past loss of superannuation and interest thereon. Superannuation is calculated at 9% of gross earnings and interest is again calculated at 6% per annum. However, the true gross loss cannot be calculated due to the absence of evidence. The net loss is a useful starting point. Only a 'best guesstimate' can be made of say, $8,500.
I will allow $84,857.20 for past loss earning capacity.
This total figure is of course based on very arbitrary net weekly figures representing, in the main, a partial incapacity for the entire period except where otherwise stated. The mathematical exercise has been undertaken to substantiate what would otherwise have been a global assessment in the absence of full evidence.

Future economic loss

Dr Harper reported that Mr Lawton is at risk of a further reduction in his working capacity in later life due to inherent pain and stiffening in the right elbow following accelerated degenerative changes.
Dr Rosenthal also reported that Mr Lawton's post-traumatic osteoarthritis will, in all probability, be progressive. He will suffer significant permanent impairment, although Dr Rosenthal did not rule out a possible return to dump truck driving. His restriction is to avoid repetitive manual handling. His employability is significantly reduced.
The assessment of future loss of earning capacity can only be undertaken in a very artificial manner. In carrying out this assessment, it is important to bear in mind that the assessment relates to the extent to which the injuries are productive of loss of earning capacity. Mr Lawton is still only 27 years of age. There needs to be some recognition that he may have been promoted at least at some stage during his working life, which is mainly in the future.
Mr Lawton does not have a glowing past economic history. Doing the best I can, I will increase economic loss into the future in the sum of $150 net per week. This is necessary to recognise that the sum of $100 used as a base for past loss from 2010 to the present is derived in part from earnings in 2007 and 2008 and that there must necessarily have been an increase in average earnings since that period of time. Regard has also been had to the same matters considered with respect to past loss of earning capacity as outlined above at [156].
Mr Lawton is now roughly 27.5 years of age.
The multiplier for 27.5 years to age 55 is 715. A loss of $150 net per week produces a loss to 55 of $107,250. Then, from age 55 to age 65, there should be a greater net weekly allowance due to the probability of progressive degenerative changes in the elbow. The multiplier for 10 years is 395.50 and the present day value of a loss of $200 net per week in 27.5 years is .20150, producing a further future loss of earning capacity of $15,938.65, thus making a total future loss of $123,188.65. To this should be added a figure of say, $13,500 for future superannuation, to approximate 9% of the gross loss. The resulting figure should however be reduced by 5% to allow for the contingencies. Mr Lawton has a history of disqualification from holding a motor drivers licence and it is necessary to factor in accident, illness and unemployment. The resultant figure is $129,854.21.

Summary

I will allow Mr Lawton's damages calculated as follows:
Loss of enjoyment of life  $ 94,750.00
Future medical expenses  $    3,800.00
Future medical expenses  $    1,250.00
Past economic loss and superannuation
benefits (with interest)  $ 84,857.20
Future economic loss and superannuation          $129,854.21
Total$314,511.41

Year ending	Gross taxable income	Gross earned income
2006	$20,211 (amended)	$15,668 (as lodged)
2007	$16,585	$16,384
2008	$40,764	$39,279
2009	$18,569	$ 9,744
2010	$16,071	$ 3,995