Le v Heatcraft Australia Pty Ltd and Le v Heatcraft Australia Pty Ltd and Anor
[2013] NSWDC 75
•31 May 2013
District Court
New South Wales
Medium Neutral Citation: Le v Heatcraft Australia Pty Ltd and Le v Heatcraft Australia Pty Ltd & Anor [2013] NSWDC 75 Hearing dates: 9 October 2012, 28 February, 1 March 2013 and subsequent written submissions, completed on 27 May 2013 Decision date: 31 May 2013 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Proceedings numbered 2007/294694 and 2011/318357 are consolidated into proceedings numbered 2011/318357;
2.Verdict and judgment for the plaintiff in the sum of $1,309,229.82;
3.The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
4.The exhibits may be returned;
5.Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - workplace injury - plaintiff working on assembly production line struck by passing forklift - negligence admitted - whether the Motor Accidents Compensation Act 1999 or Workers' Compensation Act 1987 is the appropriate scheme for assessment of damages - whether contributory negligence by plaintiff - whether reduction of damages required on account of employer's negligence pursuant to s 151Z of Workers' Compensation Act 1987; DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, s 5D, s 5E
Employees Liability Act 1991, s 3
Motor Accidents Compensation Act 1999, s 3, s 136, s 141B
Workers' Compensation Act 1987, s 151ZCases Cited: Miller v Galderisi [2009] NSWCA 353
TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149Category: Principal judgment Parties: Tan Thanh Le (Plaintiff)
Heatcraft Australia Pty Ltd (First defendant)
Goran Angelkovski (Second defendant)Representation: Mr A Lidden SC with Mr M Daley (Plaintiff)
Mr S Kettle (Defendants)
Brydens (Plaintiff)
Moray & Agnew (Defendants)
File Number(s): 2007/294684 2011/318357 Publication restriction: None
Judgment
Table of Contents
Nature of case and background
[1] - [3]
Procedural order
[4]
Issues
[5]
Credit
[6]
Facts
[7] - [80]
Plaintiff's background
[8] - [11]
Accident details
[12] - [23]
Injuries
[24] - [25]
Treatment
[26]
Medical and allied assessments
[27] - [78]
Disabilities
[79]
Mitigation
[80]
Issue 1 -Which statutory scheme applies
[81] - [87]
Issue 2 - Alleged contributory negligence
[88] - [91]
Issue 3 - Argued defence under s 151Z of WC Act
[92] - [95]
Issue 4 - Assessment of damages
[96]
Life span of plaintiff
[97]
Non-economic loss
[98] - [100]
Past economic loss
[101] - [117]
Fox v Wood
[118]
Past loss of superannuation
[119]
Future loss of earning capacity
[120] - [137]
Future loss of superannuation
[138]
Past domestic assistance
[139] - [154]
Future domestic assistance
[155] - [161]
Future treatment expenses
[162]
Past out-of-pocket expenses
[163]
Summary of damages assessment
[164]
Disposition
[165]
Costs
[166]
Orders
[167]
Nature of case and background
At about 10.30am on Thursday 10 November 2005, the plaintiff, Mr Tan Thanh Le, was injured in the course of his employment with the first defendant, Heatcraft Australia Pty Ltd. The injury occurred whilst the plaintiff was engaged in process work in a manufacturing production line in the first defendant's factory which manufactured refrigeration units. The plaintiff was bending down to fix a screw in the fabrication of the unit he was working upon when he was struck on the left leg by a passing forklift truck, which was owned by the first defendant, and being driven by a co-employee, Mr Goran Angelkovski, the second defendant.
The defendants have admitted fault. As a result of the incident, the plaintiff suffered a deep laceration to his right forearm when he fell onto a sharp piece of metal, a graze to the tip of his right middle finger and an injury to his right foot, which had been run over by the forklift.
The plaintiff commenced two sets of proceedings over the incident, one in 2007 and the other in 2012. There was a dispute as to whether the proceedings are governed by the provisions of the Workers' Compensation Act 1987 ["the WC Act"], or the Motor Accidents Compensation Act 1999 ["the MAC Act"].
Procedural order
At the commencement of the trial an order was made that the two sets of proceedings be consolidated. This was because the plaintiff's former employer was named as the defendant in proceedings numbered 2007/294684 and in proceedings numbered 2011/318357. The latter proceedings also named the driver of the forklift, Mr Angelkovski, as the second defendant, who was also employed by Heatcraft Pty Ltd.
Issues
As negligence has been admitted by the defendants, the remaining issues calling for decision are as follows:
Issue 1 - The identification of the appropriate scheme for damages under which the plaintiff's entitlement to damages should be assessed, namely to MAC Act or the WC Act;
Issue 2 - Whether there was contributory negligence on the part of the plaintiff as alleged by the defendants and if so, to what extent should this be apportioned;
Issue 3 - Whether, and if so, why and if so, to what extent, the plaintiff's entitlement to damages should be reduced having regard to the employer's negligence pursuant to the provisions of s 151Z of the WC Act;
Issue 4 - The assessment of the plaintiff's entitlement to damages.
Credit
The plaintiff gave his evidence in his own language through a Vietnamese interpreter. His answers to questions, including in cross-examination, were seen to be spontaneous. Whilst it is a given that it is difficult to assess credibility in cases where the evidence in quantum is given through an interpreter, there was nothing in the content of the plaintiff's translated evidence that raised concerns over the credibility and the reliability of his evidence.
Facts
In the paragraphs that follow I set out my findings of fact concerning the plaintiff's background circumstances, the general details of the accident, and the effects of the accident on the plaintiff, as a precursor to making findings on the issues calling for decision.
Plaintiff's background
The plaintiff was born in Vietnam in 1962. At the time of his injury on 10 November 2005, he was aged 43 years. He completed his education in Vietnam to the equivalent of Year 9, following which he worked as a fisherman in that country. In 1981, at the age of 19 years, he left Vietnam for the Philippines, where he was placed in a refugee camp. Between 1981 and 1982, whilst in the Philippines he trained as an electrician. He migrated to Australia in 1983.
In Australia, between 1983 and 1992, he worked for a number of employers, firstly working as a gardener, then a cleaner, then a machine operator. In 1992 he became self-employed as the proprietor of a Vietnamese Restaurant in Bankstown, in partnership with another family member, until interpersonal family issues arose. Between 1993 and 1997, he elected to stay at home to look after his young children. In 1997, he commenced working for the defendant company in production line work, and he remained in that employment until the time of the accident. His employment with the defendant company was terminated at the end of 2007, 2 years after the injury which is the subject of these proceedings, due to "frustration of employment", which was a reference to the plaintiff's unfitness for work.
Before the subject injury, the plaintiff had enjoyed good general health, and he had no restrictions on his earning capacity. In May 2005 he had injured his left shoulder in a motor vehicle accident. As a result of that injury, he was off work for 8 weeks, during which time he had physiotherapy treatment. After those 8 weeks of treatment, the plaintiff's left shoulder injury resolved, and he returned to work without further incident or problems until the subject accident. At the time of the subject accident, the plaintiff was employed by the defendant in the classified capacity of Engineering Production Employee Level 111 C12 Grade 6, or process worker: Exhibit "1", Tab 15.
At the time the trial commenced, the plaintiff was aged 50 years, and uninjured, he had expected to have a normal working life span.
Accident details
As the background to assessing the defence of alleged contributory negligence (which will be considered in respect of Issue 2), in the paragraphs that immediately follow, I will survey the evidence as to how the accident occurred.
Exhibit "1", Tab 2 indicates that the accident details were contemporaneously stated in an Employee's Report of Injury form completed, apparently by the plaintiff, or if not, on his behalf, on 14 November 2005, in the following terms:
"Bend down to apply screw to bottom of unit and felt a bump to the left thigh and fell off balance and into unit, arm hit against panel on RH side."
The plaintiff's injury was reported to employees of the defendant company, Mr Brad Mulford and Ms Monica Walker. In the report, the witnesses were stated to have been Mr Goran Angelkovski, and Mr To Hat Tat. None of those persons were called to give evidence in the case for the defendant to support the claim of alleged contributory negligence.
The defendant admitted that Mr Angelkovski had driven the forklift negligently in the events of the incident, and, by implication, had relevantly caused the plaintiff's injury when the forklift struck the plaintiff's left thigh.
In the Employer's Report of Injury to its insurer on 11 November 2005, which was part of Exhibit "1" at Tab 4, the plaintiff's actions were described as follows:
"Stepped back into path forklift causing overbalance & fall into unit - arm hit against metal frame of refig unit"
In a document described as an Investigation report, at Tab 5 of Exhibit "1", the employer notified the insurer that the witnesses to the incident were Mr Goran Angelkovski and Mr To Hat Tat. The investigation section of the report to the insurer included the following account of the events:
"Forklift driver (Goran Angelkovski) was transporting a large liquid receiver on a pallet to the Commercial Unit Line (via dock 7). As he turned the corner of the Titan Line and started to move past Thanh Le (who was working on a unit with his back to the forklift), Thanh stepped back into the path of the forklift. Consequently, the forklift clipped Thanh causing him to fall sideways onto a sheetmetal panel of the unit he was working on. As he fell on to the unit, he has moved his forearm forward to break his fall, causing a large and deep laceration to his forearm (where his forarm (sic) made contact the edge of the sheetmetal panel. Goran stated that he was travelling very slowly at the time and this was supported by witness of the incident (Toha)."
The employer interviewed Mr Tat and ascertained that he had only seen the forklift approaching out of the corner of his eye, and could not recall if there was any warning sound of the approach, as was the training instruction.
On behalf of the defendant, a Mr Adrian Smith, made a file note recorded in Exhibit "1" at Tab 5, of a conversation he had with Mr Angelkovski about the incident, which is summarised in the following terms:
"- Goran came around the corner very slowly due to the load on the forklift was not square with the apron of the forklift and therefore was slightly protruding over the side where the injured worker was standing.
- Goran approached the area slowly, but did not move as far as possible away to avoid the area where the injured person was working.
- Goran did not indicate his intentions or warn (by horn or verbal instruction) the person of where he was driving, when asked why, could not answer the question."
The plaintiff provided the defendant with a more detailed statement, replicated in Exhibit "1" at Tab 5, in the following terms:
"When standing beside Titan Unit and holding screw driver in Rt. hand and screw in L/H. While attempt to apply screw to bottom of unit.
I bent down to screw into hole and felt somthing (sic) bump against my L. thigh this throwing me off balance and into the unit with Rt arm.
Also at that time my foot became wedged under the front wheel of forklift. I called to the driver and he reversed to release the pack of my foot, my foot was OK!
I then noticed the blood on my arm with the cut, and was assisted to the First Aid Station"
Mr Tat provided the defendant with a more detailed statement, which is replicated in Exhibit "1" at Tab 5, in the following terms:
"Thanh was working on the Titan Line. The forklift driving slowly (quite) around the corner, quite close to the Tintan Line. I then saw the forklift hit him somewhere. And he falling down. His arm hit the panel of the unit and cut his arm then I saw Goran get of (sic) the forklift and call Brad Mulford.
Then Goran and Brad helped Thanh to get up. And then take to the Sister"]
Mr Angelkovski provided the defendant with a more detailed statement, which is replicated in Exhibit "1" at Tab 5, in the following terms:
"I was driving the forklift slowly around the corner were (sic) Thanh was leaning into the Titan Unit in the path of the forklift as it was a noisy area and forklift was moving slowly and quietly.
As I proceeded to pass him he stepped back approximately level with half way edge of pallet. This caused him to overbalance and foot wedged under back wheel and body went into the unit.
I then reversed to release his foot and check on his condition at this point I noted the severe laceration on right forearm. Immediately called first aider (Brad Mulford) for assistance and walked Thank to Medical Centre."
A series of photographs were tendered showing the general layout of the accident scene, showing a rather tight working environment in which to drive forklift trucks: Exhibits "C"; "2" and "3". Unsurprisingly, in the described events, the defendants admitted that they had been negligent in the circumstances of the plaintiff's injury.
Injuries
The principal injury sustained by the plaintiff comprised a deep laceration to the upper forearm of his right arm. This occurred when he lost balance after being bumped by the forklift causing him to fall forward onto a sharp newly cut piece of sheetmetal. The laceration damaged some deep muscle and soft tissues in the plaintiff's right forearm. Some of the extent of the resultant laceration is evident from Exhibit "D":
The plaintiff's other injuries, which comprised a graze to the tip of the right middle finger, and a crushing injury to the right foot, resolved relatively quickly.
Treatment
The plaintiff was taken to Bankstown hospital where he received extensive sutures to his lacerated forearm, as is evident from a further photograph comprising Exhibit "E".
Medical and allied assessments
The plaintiff attended Liverpool Hospital for initial treatment of his injuries. The plaintiff's legal representatives did not tender any records or a discharge summary from that hospital.
The plaintiff was referred to Dr Antonio Fernandez, a plastic and reconstructive surgeon, who diagnosed the plaintiff to have sustained a deep laceration to the proximal portion of his forearm with exposure of the muscle bellies. Dr Fernandez also diagnosed an area of altered sensation in the plaintiff's right radial nerve distribution. Arrangements were made for a surgical repair of those injuries.
On 11 November 2005, Dr Fernandez operated upon the plaintiff at Sydney Southwest Private Hospital, for repair of his laceration and the damage to the underlying tissues. On 22 November 2005, Dr Fernandez undertook a post-operative review of the plaintiff. He removed the dressing and referred the plaintiff to physiotherapy for mobilisation of his fingers. The plaintiff was then required to maintain his arm in an elevated position for a time.
On 29 November, 6 and 22 December 2005, 16 January, 21 March and 2 May 2006, Dr Fernandez undertook further reviews of the plaintiff. He initially reported that the plaintiff's progress was very slow, and he noted the emergence of complaints in the right arm and neck, which were possibly linked to disuse. Those problems receded over time, but the plaintiff continued to experience pain, especially when making a fist with his right hand. He also continued to experience neck pain.
In March 2006, Dr Fernandez advised the plaintiff to consult his general practitioner, Dr Truong, for pain management. The plaintiff was also referred for a CT scan of the neck, and he was referred to a pain clinic. When Dr Fernandez discharged the plaintiff from his care, he considered that the plaintiff's complaints of intermittent pain had improved to a degree.
On 24 March 2006, at the request of Dr Fernandez, the plaintiff underwent x-ray and CT imaging of his cervical spine, which revealed no significant abnormality apart from mild degenerative changes.
On 6 July 2006, at the request of Dr Truong, the plaintiff was seen by Dr Darryl Salmon, a pain management specialist. Dr Salmon was of the opinion the plaintiff had persistent pain in his left arm following extensor tendon and neurovascular injury, which involved a permanent impairment. He thought there might be improvement in this condition over time. Remedial exercises were prescribed.
On 16 August 2006, the plaintiff was re-examined by Dr Salmon. Little change was observed in the plaintiff's condition.
On 30 August 2006, at the request of Dr Salmon, the plaintiff underwent an MRI scan of his right wrist, which produced a degraded image due to patient movement. Some relative thickening of the triangular fibrocartilage was observed to be present, which was taken to be a possible injury to that area.
On 31 August 2006, Dr Troung referred the plaintiff to Dr Khahil, to assess the plaintiff's left elbow which had been causing him pain over the preceding months since the accident. It was recorded that the plaintiff had tried physiotherapy, acupuncture and NSAIDs with only minimal improvement in his condition.
On 4 September 2006, the plaintiff was reviewed by Dr Salmon, who thought that the plaintiff's restricted range of arm movement and altered sensation remained unchanged. He suggested an orthopaedic opinion for the left elbow symptoms, and suggested an MRI scan of the right wrist.
On 18 October 2006, At the request of Dr Truong, the plaintiff underwent an ultrasound study of his left elbow, which was reported as showing a combination of extensive tendonosis and tear involving the common extensor tendon of the elbow, with an associated tendon defect.
On 24 October 2006, at the request of his solicitor, the plaintiff was examined by Dr Clive Sun, a consultant in rehabilitation and pain medicine. Dr Sun confirmed the need for the plaintiff to be referred for rehabilitation and pain management treatment. He also recommended analgesia, a sympathetic block in the neck to treat the plaintiff's chronic regional pain syndrome, along with regular hand therapy. Dr Sun placed significant restrictions on the plaintiff concerning work activities.
On 26 October 2006, the plaintiff was again seen by Dr Salmon following the identification of tendonosis seen on ultrasound examination of the left elbow. At that time restricted duties were suggested.
On 27 October 2006, Dr Troung referred the plaintiff to Dr Nabarro, a hand surgeon, at the suggestion of Dr Salmon. The history on referral was that the plaintiff had been forced to use his injured arm at work, resulting in pain in his left elbow and wrist.
On 30 October 2006, Dr Salmon reviewed the plaintiff again after an ultrasound study of the left elbow had been carried out. He noted the presence on the MRI scan of oedematous thickening of the fibro cartilage and fluid distending into the distal ulnar joint. He suggested an orthopaedic opinion be obtained in relation to the elbow.
On 2 November 2006, the plaintiff was first assessed by Dr Mark Nabarro, a hand and microsurgeon. The plaintiff was also seen by Dr Nabarro on a further 27 occasions to 25 November 2009. Dr Nabarro diagnosed the plaintiff as having a TFCC tear of the right wrist, complex regional pain syndrome of the right upper limb, pain in the three ulnar fingers of the right hand of unknown aetiology, and left wrist de Quervain's tenosynovitis, and a TFCC tear and ECU instability of the left wrist. He expressed a guarded prognosis.
This was the first of 27 consultations the plaintiff had with Dr Nabarro, namely: 6/12/2006, 8/1/2007, 20/2/2007, 3/4/2007, 28/5/2007, 20/6/2007, 7/8/2007, 21/8/2007, 10/9/2007, 17/9/2007, 10/10/2007, 7/11/2007, 19/12/2007, 20/2/2008, 1/5/2008, 25/6/2008, 6/8/2008, 4/12/2008, 28/1/2009, 12/3/2009, 28/4/2009, 15/6/2009, 21/7/2009, 14/9/2009, 3/11/2009 and 25/11/2009.
On 8 November 2006, at the request of Dr Nabarro, the plaintiff underwent an ultrasound guided injection into his left elbow.
On 18 December 2006, at the request of Dr Nabarro, the plaintiff underwent an ultrasound examination of the right forearm, which noted typical post-surgical appearances. On the same date, the plaintiff underwent an MRI scan of the left wrist. This revealed post-operative scarring and some changes in the wrist.
On 16 January 2007, the plaintiff was examined again by Dr Salmon. On that occasion the plaintiff reported more pain in the right wrist than in the left wrist.
On 1 February 2007, Dr Salmon noted the plaintiff's continuing complaints of pain in both wrists, the left more than the right. It was noted that Dr Nabarro had planned some surgery for the plaintiff.
On 21 August 2007, at the request of Dr Nabarro, the plaintiff underwent an MRI scan of his left wrist. This was reported a showing evidence of progression towards healing of the repaired peripheral tear of the articular disc of the TFCC, and some synovial thickening, and some mild infiltration-scarring to the fat plane at the margins of the dorsal branches of the ulnar nerve, without evidence of neuroma.
On 10 September 2007, Dr Nabarro carried out surgery on the plaintiff's left wrist.
On 11 December 2007, the plaintiff consulted Dr Tan Hiep Mai, a general practitioner. This was the first of a series of 55 consultations with that doctor ending on 23 November 2010. This doctor was of the view the plaintiff had lateral epicondylitis of the left elbow, the previously diagnosed conditions of TFCC tears, De Quervain's Syndrome in both wrists, right trapezius strain and depression. Dr Mai thought it was unlikely the plaintiff would return to his pre-injury duties.
On 18 March 2008, the plaintiff was seen by Dr Sun for a second time. Dr Sun confirmed his view that the plaintiff's work accident was the cause of his impairments and disabilities. He stated the prognosis to be for the plaintiff to continue to suffer from bilateral upper limb symptoms affecting his daily activities, including work.
On 3 April 2008, at the request of his solicitor, the plaintiff was examined by Thomas Clark, a consultant psychiatrist. Dr Clark considered that the plaintiff had developed a chronic reactive depression or dysthymia as a consequence of his work injury and the related chronic regional pain syndrome that subsequently developed. The salient features of that depressive condition were withdrawal, sense of loss, avoiding reminders of the incident, and being obsessed with the incident.
On 6 May 2008, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Robin Mitchell and Mr David Brown, who are respectively, experts in rehabilitation medicine and occupational psychology. The report dated 12 May 2008, identified a range of suggested alternative employment positions, namely catering assistant, hand packer, machine operator (general plastics). This report made occupational assessments and recommendations which will be analysed in connection with the reasons for assessment of the claim for past loss of earning capacity.
On 17 July 2008, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Selwyn Smith, a consultant psychiatrist. Dr Smith considered that the plaintiff had displayed evidence of a mild but chronic adjustment disorder with depressed and anxious mood, which he related to the subject accident, with the associated complications that have been documented. Dr Smith considered that from a psychiatric perspective, the plaintiff was able to engage in his pre-injury employment, but he noted there were physical restrictions outside of his expertise. He also noted that the prognosis of the plaintiff's psychiatric issues was linked to the plaintiff's underlying physical condition. He deferred expressing an opinion on the plaintiff's capacity to engage in employment, pending a vocational evaluation.
On 3 September 2008, at the request of his solicitor, the plaintiff was seen by Dr Sun for a third time. Dr Sun reviewed the plaintiff's history of treatment, and noted that the plaintiff had ceased working on 23 November 2007. Dr Sun confirmed his earlier opinions he had expressed in his report dated 31 March 2008.
On 5 January 2009, the plaintiff was again reviewed by Dr Salmon at the Pain Clinic. At that time the plaintiff complained that his pain in the left forearm and wrist was greater in the left than in the right.
On 16 January 2009, at the request of the worker's compensation insurer, the plaintiff was examined by Dr Allan Meares, a consultant hand, plastic and reconstructive surgeon. Dr Meares saw the plaintiff again in 2010 and 2012. In this his initial report he stated his diagnosis that the plaintiff had suffered a tear of the triangular fibrocartilaginous complex of his right wrist, and was not fit for his pre-injury work. He postulated fitness for light work and office work.
On 3 March 2009, the plaintiff underwent surgery on his right wrist carried out by Dr Nabarro. He thought that the post-operative prognosis of the right wrist problem was only fair. At that time the prognosis for the right shoulder was poor. He thought the plaintiff would find it difficult to return to any type of work.
On 19 July 2009, the plaintiff last attended upon Dr Tan Hiep Mai, a general practitioner in Bankstown. This was the last of 31 recorded consultations since 11 December 2007.
On 29 July 2009, at the request of his solicitor, the plaintiff was seen by Dr Sun, for a fourth time. Dr Sun reviewed the plaintiff's recent arthroscopic surgery to his right wrist on 3 March 2009. Dr Sun re-iterated his earlier expressed opinions.
On 19 November 2009, at the request of his solicitor, the plaintiff was examined by Dr Jeni Saunders, a sport and exercise physician. She considered that the plaintiff needed a specific physiotherapy programme, and was awaiting approval form the worker's compensation insurer.
On 25 March 2010, the plaintiff was seen by Dr Nabarro for the twenty seventh and last time. At that time earlier expressed prognosis had not changed, and remained guarded.
On 27 April 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr James Vote, a consultant orthopaedic surgeon. He thought that the plaintiff would have difficulty in returning to the workforce in any capacity. He nevertheless suggested the roles of gatekeeper or some other kind of attendant. Significantly, Dr Vote thought that the plaintiff was well motivated and not in his view, overplaying or exaggerating his symptoms.
On 20 May 2010, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Meares for a second time. Dr Meares was then of the view that whilst the plaintiff may have needed domestic assistance soon after his original injury, He did not need it from the viewpoint of his hands and wrists. He was of the view that all the treatment the plaintiff had up until that time had been reasonable and necessary, and related to the subject accident.
On 10 October 2010, at the request of his solicitors, the plaintiff was examined by Dr Clark for a second time. Dr Clark was of the opinion that the plaintiff had a severe depression. He noted a history of suicidal thoughts, poor sleep, and feelings of a great sense of loss, including to his self-esteem and pride, following his injury. He considered that the plaintiff could not come to terms with his disability.
On 27 November 2010, the plaintiff was again examined by Dr Jeni Saunders, a sport and exercise physician. She considered that the plaintiff needed a specific physiotherapy programme, and was awaiting approval form the worker's compensation insurer.
On 20 December 2010, at the request of his solicitor, the plaintiff was examined by Dr James Bodel, a consultant orthopaedic surgeon. Dr Bodel summarised the plaintiff's history of presenting physical complaints as being ongoing pain and stiffness in the right shoulder, right arm and wrist, aggravated buy repeated pushing, pulling and use of the right arm, ongoing left shoulder, elbow and wrist pain, and an intermittent sensation of pins and needles throughout the left arm. He also noted the complaints of headaches, neck pain, sleep disturbance and intermittent back pain aggravated by prolonged sitting. Dr Bodel stated that (in addition to the laceration to the right arm) the plaintiff had received soft tissue injuries to the neck, both shoulders and both wrists and hands as a consequence of his work accident, resulting in incapacity for his pre-injury work and causing a need for domestic assistance and future treatment.
On 7 March 2011, the plaintiff consulted Dr Allyson Browne, a clinical psychologist. He attended a series of 9 appointments with Dr Browne that concluded on 12 December 2011. A major depressive disorder of moderate severity was diagnosed, along with chronic pain disorder. Accompanying symptoms were persistent low back problems, radiation of pain to the right thigh and to both wrists, right forearm and shoulder, and the right side of the neck, sleep disturbance associated with pain, reduced physical functioning, and reduced interest in pleasurable activities due to pain. Dr Browne's notes recorded the impression that the plaintiff had post-traumatic stress disorder with secondary major depression and chronic pain disorder.
On 4 July 2011, the plaintiff underwent x-ray and ultrasound examinations of his right shoulder. The report of those examinations concluded that he had subacromial/subdeltoid bursitis, with some arthritic swelling of the acromioclavicular joint.
On 5 July 2011, the plaintiff underwent x-ray and ultrasound examinations of his left shoulder. The report of those examinations concluded that he had mild osteoarthritis of the left acromioclavicular joint.
On 29 March 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Meares for a third time. Dr Meares noted the plaintiff had not worked since December 2007. He also noted that the plaintiff stated he had pain in both upper extremities. Dr Meares observed the plaintiff to have used his hands normally when dealing with his belongings. Dr Meares did not include in his mention of that detail, any explanation from the plaintiff on those circumstances. Dr Meares thought there were no signs of chronic regional pain syndrome in the plaintiff's right hand. He did not explain that comment with supporting reasons. He nevertheless expressed the opinion that the plaintiff was unfit to engage in his pre-injury employment. Dr Meares thought the plaintiff was fit for some (kind) of employment, but needed to be retrained, and was fit for some light office duties, with lifting restrictions applicable to both arms. Dr Meares suggested a vocational assessment by a rehabilitation provider to assess the plaintiff for suitable future employment. Dr Meares' opinion did not take into account any psychological factors that were influencing the plaintiff's situation.
Dr Meares seems to have based his opinion on the plaintiff's fitness for some kind of light work on his own observation that the plaintiff appeared to use both hands and arms in a normal fashion when handling his belongings. I consider that Dr Meares' opinion in this regard should be discounted and given diminished weight because there is no evidence that the plaintiff had been afforded procedural fairness by being given an opportunity to explain any adverse inferences that he may have drawn from his observations, as these may have been capable of consistent explanation.
On 21 May 2012, at the request of his solicitor, the plaintiff was examined by Dr Bodel for a second time. Dr Bodel reviewed the plaintiff's presenting complaints, and noted they were the same as when he saw the plaintiff two years earlier. Dr Bodel stated that the plaintiff was certified as being unfit for work, with a poor prognosis for a return to work, and with only a theoretical ability to be trained for alternative employment.
On 2 October 2012, the plaintiff attended Mr Tu Hoan Tran for physiotherapy treatment to his neck, shoulders and wrists. Mr Tran recorded his belief that the plaintiff had reached a plateau in his condition, but that his condition was aggravated by maintaining prolonged postures and activities involving the neck and shoulders.
On 25 October 2011, at the request of his solicitor, the plaintiff was examined by Dr Sun, for a fifth time. Dr Sun again re-iterated his earlier expressed opinions.
On 17 April 2012, at the request of his solicitor, the plaintiff was seen by Dr Clark for a second time. Dr Clark considered his earlier diagnosis of Regional Pain Syndrome with an associated Major Depressive Disorder superimposed upon the plaintiff's perfectionist personality, which prevented him from coming to terms with his disability. Dr Clark stated that the re-examination of the plaintiff did not cause him to change his earlier expressed findings. He stated that the plaintiff continued to suffer from a Major Depressive Disorder, his impairments were permanent, and he was presently unemployable, with a poor prognosis.
The plaintiff gave evidence that he had been seeing a psychiatrist, Dr Nguyen. No reports from Dr Nguyen were tendered in the proceedings.
Disabilities
The plaintiff has scarring to his right forearm from the initial laceration. He also has surgical scarring to both of his wrists following several attempts at remedial surgery. He has developed chronic regional pain syndrome which affects both of his upper limbs. He has been left with reduced manual dexterity, strength and reduced capacity to lift and carry objects. He has pain in both arms, shoulders, wrists and in his neck. His tolerance for manual activity, sitting and standing before the onset of pain is about 10 - 15 minutes. He has developed a psychiatric disorder, with severe and chronic depression, associated with his chronic pain syndrome. This is against the background of a perfectionistic character trait and self-reliance, attributes he feels he can no longer fulfil.
Mitigation
The plaintiff has submitted to all the reasonable medical and allied treatments that have been suggested to him. He has had four episodes of surgical treatment. He has had extensive medical and allied consultations and treatment in an endeavour to improve his situation. He has attempted mitigatory light duties employment following his initial treatment. However, he has had to cease work because the effect of his injury became more complicated and now includes a psychiatric disorder. He has pursued treatment for that disorder. There can be no reasonable basis upon which he can be said to have failed to mitigate his damage, and the defendant did not submit otherwise: s 136 of the MAC Act.
Issue 1 - The appropriate scheme for the assessment of damages
Notwithstanding the arguments of the defendants to the contrary, I have concluded that the plaintiff's claim falls within the scheme for assessment under the MAC Act. I have come to that view for the reasons that follow.
The accident occurred because of fault in the manner of operation of a forklift: TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149.
The fault was with the driving of the forklift, which was a motor vehicle, within the purview of the MAC Act.
The driver of the forklift, the second defendant, simply failed to exercise due skill and care in moving the forklift around the premises in close proximity to workers such as the plaintiff, who were concentrating on the tasks allocated to them by the first defendant. The failure of the second defendant, and vicariously, the first defendant, was the failure to use the beeper or other means to warn the plaintiff of the approach of the forklift, and failure to ensure that a proper lookout was maintained in order to avoid contact with the plaintiff.
The faulty manner of operation of the forklift was purely the fault of the driver, for whom the first defendant is vicariously responsible. The collision could obviously have been avoided with a prudent manner of driving.
All of these matters indicate the injury to the plaintiff was as a result of the use and operation of a motor vehicle accident to which the MAC Act applied, notwithstanding that the plaintiff may have had concurrent rights under the WC Act.
There is no room for doubt that the forklift was a motor vehicle that was being driven under motive power at the time the plaintiff was struck. There is no room for doubt that the incident was a "motor vehicle accident" within the meaning of s 3 of the MAC Act. Accordingly, the plaintiff's entitlement to damages must be assessed under the scheme of that Act.
Issue 2 - Whether there was contributory negligence
In the defence filed on 12 December 2007, the defendants alleged that there was contributory negligence on the plaintiff's part. The allegations were general and not specific. First, it was alleged that the plaintiff had failed to keep a proper lookout, and secondly, it was alleged that he had failed to take care for his own safety. The defendants carried the onus of proof of those matters, and that defence.
It is plain from the circumstances of the accident that the plaintiff was simply carrying out his assigned work tasks when the accident occurred. This required him to bend down to attend to the task of locating and fixing screws, nuts and bolts in situ, whilst standing on a platform where forklift trucks could be driven by in close proximity. He did not design that system of work. He was entitled to assume the system of work in which he was engaged was safe. He had no notice of the approaching forklift until it struck him on the left thigh.
The forklift that struck the plaintiff had a beeper fitted to it but it was not operating. The forklift was a gas driven machine which was quiet when driven slowly. The plaintiff said, and I accept, the beeper was not operating at the time of the accident. The plaintiff said, and I accept, that he had not heard the approach of the forklift. He could not be reasonably criticised for not seeing the forklift whilst he was concentrating and attending to the requirements of his work. In those circumstances, the plaintiff was entitled to expect the driver of the forklift to keep a proper lookout and steer a safe course, and issue appropriate warning sounds on approaching in tight circumstances. This is so especially as the plaintiff was himself a trained and certificated forklift driver who occasionally used forklifts in the premises, and knew of the safety requirements regarding the use of forklifts on the premises.
In the above analysis and described events, I find that the defendants have failed to demonstrate that there was any contributory negligence on the part of the plaintiff, as pleaded, or otherwise. That defence is therefore rejected.
Issue 3 - Argued application of s 151Z of the WC Act
The accident in question, as described in paragraphs [11] to [21] above, was caused by the negligence of the defendants in the use or operation of a motor vehicle. The negligence of the second defendant driver is the legal responsibility of the first defendant, because of the application of the principles of vicarious liability, and by the operation of s 3 of the Employees Liability Act 1991.
The defence argument to the effect that the plaintiff's damages should be reduced on account of the operation of s 151Z of the WC Act, is in my view misplaced, and should not be accepted.
This is because the plaintiff's injury occurred as a result of the use or operation of a motor vehicle, namely, the forklift. It has not been demonstrated that the employer's system of work was faulty. On the contrary, if the forklift driver had exercised proper care, the accident involving contact between the forklift and the plaintiff would not have occurred. This is the only compelling inference that arises on the evidence. The defendants carried the onus of proving that s 151Z of the WC Act applied: s 5D and s 5E of the Civil Liability Act 2002. On the facts of this case, in my assessment, that evidentiary onus has not been discharged.
Furthermore, the defence argument that the plaintiff's damages should be reduced on account of the negligence of the first defendant introduces an impermissible circulatory of argument, which, if accepted, would permit a tortfeasor to benefit from its wrongdoing. This is a further reason for the rejection of the defence raised pursuant to s 151Z of the WC Act.
Issue 4 - Assessment of damages
The parties adopted widely disparate positions on the appropriate damages to be awarded to the plaintiff. At the commencement of the hearing, senior counsel for the plaintiff provided a damages schedule, which I have totalled to be in the amount of $2,492,856. That schedule was marked MFI "2": See Appendix 1 to these reasons. During final submissions, counsel for the defendant provided a modified counter-schedule, in the total sum of $731,929.55. In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages.
Life span of plaintiff
In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances for the purpose of projection of future losses. At age 50, the plaintiff has a probable life span of 35 remaining years. The 5 per cent multiplier for 35 years is 875.6.
Non-economic loss
On behalf of the plaintiff, it was submitted that the appropriate sum to be awarded to the plaintiff for non-economic loss under the MAC Act scheme was $300,000. On behalf of the defendant it was submitted that the appropriate amount to be awarded for non-economic loss should be the amount of $100,000.
In my assessment, both of these sums are wide of the mark by a significant margin.
Having due regard to the matters set out in the chronology of medical attendances set out between paragraphs [26] to [77] above, and in view of my findings as to the nature of the plaintiff's ongoing disabilities of a physical, cosmetic and psychological nature, without repeating them here as they are described at paragraphs [23] to [24] and paragraph [79] above, I consider that the appropriate sum to be awarded to the plaintiff for his non-economic loss damages is the amount of $200,000.
Past economic loss
On behalf of the plaintiff, it was submitted that the appropriate sum to be awarded to the plaintiff for past economic loss was $359,000. On behalf of the defendant it was submitted that the appropriate amount should be $183,950.
The past economic loss submission advanced on behalf of the plaintiff was for a simplistic calculation of a claimed loss of $1000 net per week from the date of the accident until the date of the trial, presumably, but not stating, an offset of mitigatory earnings whilst the plaintiff returned to work on light duties. It is not clear as to from where the figure of $1000 net per week was obtained.
In contrast, on behalf of the defendant, the plaintiff's past economic loss was analysed as fitting into three relevant periods. These were, first, the period between 10 November 2005 to 17 January 2006, a period of 9 weeks at $650 per week net, or $5850, secondly, no loss during the period between 17 January 2006 to 23 November 2007, in which time the plaintiff was given suitable alternative duties resulting in no loss of earnings, and thirdly, for the period between 23 November 2007, when the plaintiff's employment was terminated, to 28 February 2013, a period of 274 weeks at $650 per week, or $178,100 net, amounting to a total submitted net loss of past earnings in the amount of $183,950.
The preferred approach is to identify the plaintiff's net probable earnings but for his injury, and to deduct the net mitigatory earnings from that amount, in order to identify the net past loss until the commencement of the trial on 9 October 2012.
On behalf of the plaintiff, a schedule of the plaintiff's income tax returns was tendered: Exhibit "G". In the financial year of the accident, the plaintiff's net earnings were $30,001.49, which included workers' compensation benefits, which indicates that the schedule does not represent a reliable guide to the plaintiff's level of earnings because this was partly made up of compensation payments. In the financial year before the accident, the plaintiff's average net weekly earnings were stated to be $601.75 per week: Exhibit "G". As this figure involved an average for the year, and was based on an unexplained analysis of income tax returns. I do not consider that to be an appropriate yardstick by which to measure the plaintiff's pre-injury earning capacity.
The defendant's wage records demonstrate that in the week before his injury on 10 November 2005, that is on 2 November 2005, including overtime and allowances, the plaintiff was earning $714.80 per week net: Exhibit "1", Tab 14. This was at variance to Exhibit "B", which showed earnings of $1425.15 net per week. It was also at variance with the plaintiff's evidence that, with overtime, he took home some $1200 to $1300 per week net. The variations were not explained or reconciled in the oral evidence.
I am faced with two differing documents that purport to identify the plaintiff's pre-injury rate of earnings. The employer's wage records at Tab 14 of Exhibit "1" do not reflect the payslip comprising Exhibit "B". As the payslip was the subject of evidence from the plaintiff as to his pre-injury rate of earnings, I accept Exhibit "B" as the more reliable guide for the assessment of the plaintiff's claim for past economic loss: T10.17.
The plaintiff also stated that he normally worked 10 hours per day plus an extra 8 hours on Saturdays, taking home between $1200 to $1300 per week net. This evidence is more broadly in line with Exhibit "B" than the records at Exhibit "1", Tab 14.
It may well be, but it was not the subject of evidence, that overtime varied, which therefore influenced variations in the plaintiff's pre-injury earnings. Allowing that possibility, I consider it to be reasonable to adopt the lesser figure of $1000 per week net which was submitted by senior counsel for the plaintiff in his damages schedule. On that approach, the value of past loss of earnings between 11 November 2005 and the commencement of the hearing on 9 October 2012, a period of 360 weeks, at $1000 per week, yields the sum of $360,000.
As it is plain from the plaintiff's evidence that the base rate of $1000 per week includes some considerable but unidentifiable element of overtime earnings, and given that it would appear to be unreasonable to assess, without evidence, that overtime earnings would have continued over a period of almost 7 years, and would have been continually available to the plaintiff had the accident not occurred. Given this lack of clarity in the evidence I consider that there should be a discount applied to the calculation of $360,000 to reflect the vicissitudinous uncertainty of the continued availability of overtime over that identified period.
As the state of the evidence offers no reasonable guide or insight into that issue, doing the best I can, whilst being fair to the defendants and not unfair to the plaintiff, I propose to apply a discount of 15 per cent on account of past potential adverse vicissitudes, in this instance, being the possibility that overtime, or extensive overtime, may not have been continually available to the plaintiff over such an extended period of past loss.
After applying a 15 per cent discount to the calculated sum of $360,000, the discounted sum is $306,000. It appears from Exhibit "1", at Tab 14, that the plaintiff's mitigatory earnings whilst on light duties until 23 November 2007, involved some earnings, as well as some payments of weekly compensation.
There was some difficulty, on the state of the evidence, in identifying the non-workers' compensation component of net mitigatory earnings. That difficulty was resolved when, on 27 May 2013, the parties agreed on that amount in the sum of $29,450 net. That sum must be offset from the calculated loss of $306,000, which yields the resultant amount of $276,550 net.
The justification for awarding the plaintiff damages for past economic loss comes from the plaintiff's own evidence, and from the medical evidence. I shall briefly refer to the salient features of the corpus of that evidence.
The plaintiff said that he finds it too painful to perform sustained work. I accept the plaintiff's account of his past and continuing inability to work as being evidence which is accurate and truthful.
A review of the medical evidence on the issue of economic loss is instructive. For example, Dr Vote, the orthopaedic surgeon retained by the defendants, who on 12 May 2010, considered that it was difficult to see the plaintiff returning to the workforce in any capacity, save for the possibility of a gatekeeper type position that enabled a combination of ambulant and sedentary activity: Exhibit "1", Tab 9, p 7. Such possible mitigatory employment must be tempered with the more pessimistic remarks of Dr Bodel, in his more recent assessment on 21 May 2012, who thought the plaintiff was unfit for work and had a poor prognosis for returning to work, and the remarks of Dr Clark on 17 April 2012 from a psychiatric perspective, to the effect that the plaintiff was unemployable, with a poor prognosis.
Accordingly, I award the plaintiff damages for past loss of earnings in the assessed amount of $276,550.
Fox v Wood
The parties were agreed that the amount to be awarded for Fox v Wood damages, being reimbursable tax deducted from the payments of weekly compensation paid to the plaintiff, should be 20 per cent of those weekly payments. The submissions as to the total amount to be awarded varied. The plaintiff submitted the underlying amount of weekly payments was $219,297.23, yielding a rounded Fox v Wood amount of $43,860. The defendant submitted that the underlying amount was $234,107.23, yielding a rounded Fox v Wood amount of $46,821. The difference seems to involve a different basal date range. I accept the calculation submitted on behalf of the defendant. If I be wrong in that acceptance, the parties will have liberty to apply and submit a mathematically agreed substitute amount. Accordingly, in the meantime, I award the plaintiff damages for reimbursement of the tax that was deducted from his weekly workers' compensation payments in the amount of $46,821.
Past loss of superannuation
In accordance with convention, using the well-settled actuarial formula, damages for loss of past superannuation benefits should be assessed at 9 per cent of $276,550, being the amount assessed for past economic loss, yielding an amount of $24,889. Accordingly, I award the plaintiff damages for loss of past superannuation benefits in the amount of $24,889.
Future loss of earning capacity
On behalf of the plaintiff, it was submitted that the claim for future loss of earning capacity should be assessed in the amount of $793,016, being the projection of a net weekly loss of $1400, projected at 5 per cent over 20 years to age 70 years (x 666.4) and discounted by 15 per cent for potential adverse vicissitudes.
The figure of $1400 submitted on behalf of the plaintiff for projection appears to have been obtained from a broad view of the plaintiff's pre-injury pay advice: Exhibit "B". This document showed gross weekly earnings of $1827.65, with deductions for tax of $402.05, revealing net earnings of $1425.15. The plaintiff was content to proceed upon a projection of $1400 per week net rather than the higher figure. There was no evidence as to any incremental difference over the ensuing 7 years, if any, between the 2005 rate relied upon for the plaintiff's submissions, and the applicable current rate, from the time of the accident until the time of the trial. Further, there is no indication that the overtime component in the amount of $1425.15 which was not identified in the evidence, would have continued to be available to the plaintiff.
In contrast, on behalf of the defendant, it was submitted that the plaintiff's future loss of earning capacity should be assessed in the amount of $350 per week net, projected at 5 per cent over 17 years to age 67 years (602.8) and discounted by 15 per cent for potential adverse vicissitudes to yield the amount of $179,333. It is difficult to see how the submitted rate of $350 per week net is rationally related to the evidence.
The assessment of damages for future loss of earning capacity, is largely guided by my acceptance of the plaintiff's evidence that he is unable to work and the array of medical opinions which support that position.
As far back as August 2008, Dr Nabarro foreshadowed that there was a poor or guarded prognosis for the plaintiff's complex regional pain syndrome in his right wrist. Over time, by April 2010, the stated prognosis, for both wrists, became poorer and more guarded. By May 2012, a diagnosis of major depressive disorder was identified, with concurrent chronic pain syndrome.
The medical opinions on the plaintiff's physical capacity to do some kind of restricted work duties must be read in conjunction with the opinions of the psychologists and psychiatrists who have examined him. The most recent psychiatric opinion was from Dr Clark, who stated that the plaintiff exhibits all the criteria of a major depressive disorder, stated he was unemployable, and had a poor prognosis
For example, given the identified psychological problems, Dr Sun's view, in November 2011, to the effect that the plaintiff was fit for permanently modified duties for possibly 20 to 25 hours per week, with the significant qualifications and restrictions he identified, raises the question of the practical prospect of the plaintiff ever being able to obtain and sustain work of that kind, either in the short term or over the remainder of his working life.
Most recently, in May 2012, Dr Bodel was of the opinion that, from an orthopaedic perspective, the plaintiff was not only unfit for a return to his previous employment, but his prospects for returning to work in a retrained or alternative position were theoretical. I took that statement to mean that for practical purposes, realistically, the plaintiff was not employable.
Dr Smith's psychiatric opinion dated 17 July 2008 was to the effect that the plaintiff's psychological state (which I interpolate is obviously a significant factor in his inability to work) is unlikely to improve, and the plaintiff's psychological symptoms will persist as they are linked to his chronic pain. Dr Clark's more recent opinion in 2012 is to a similar effect. Dr Vote, in 2010, did not see the plaintiff returning to the workforce. Dr Bodel's more recent opinion in 2012, has reinforced that view.
The unchallenged medical opinions in the medical reports that I have cited, give no real encouragement or confidence for a return to work in reduced or alternative mitigatory employment. I consider that Dr Sun's opinion on fitness for modified duties must be read in conjunction with the psychiatric evidence, which indicates that Dr Sun's views on the plaintiff being able to pursue modified employment must be substantially discounted.
The opinions that I have cited, together with the plaintiff's own evidence of his inabilities to carry out commonplace tasks on a sustained basis, compels the view that the plaintiff's future earning capacity has, for practical purposes, been largely, if not totally, destroyed.
In light of the opinions I have cited, and accepted, I consider that the submission made on behalf of the defendant that future economic loss should be assessed as a continuing loss of $350 per week must be rejected, as there is no sound basis upon which to find such a residual earning capacity, either along the lines suggested by Dr Sun, or otherwise.
With one qualification, I consider that the plaintiff's submission of an ongoing loss of the order of $1400 net per week should be accepted as fairly reflecting the quantification of his claim for loss of earning capacity. I also consider that the projected weekly amount should be calculated to a retirement age of 67, not 70, as was submitted on behalf of the plaintiff.
The qualification to which I refer concerning the projection figure of $1400 net per week is that this sum includes a component for overtime. It seems to me unreasonable to assume, notwithstanding the plaintiff's evidence that he loved to work, that he would have continued working a 10 hour day 5 days per week plus 8 hours of overtime, to retirement or age 67 years. It would be unsafe, on the state of the evidence, to proceed upon such an assumption. In those circumstances, I consider that the basal net weekly amount for projection should be discounted to $1000 per week, which is closer to average weekly earnings and gives some additional recognition for the plaintiff's qualifications as an electrician, although absent proficiency in the English language, it is unlikely he would have worked as a tradesman electrician. Whilst the above discount may appear arbitrary, the state of the evidence leaves me no other course but to do the best I can on the above reasoned basis.
The projection of $1000 per week over a remaining 17 years to age 67 (x 602.8) yields the undiscounted amount of $602,800. In approaching the question of a discount for potential adverse vicissitudes, in addition to the conventional vicissitudes, for which a standard 15 per cent discount would ordinarily apply, I consider that there are some features of the case that require a higher discount.
Those features are first, the albeit slim possibility that the plaintiff may at some stage, and for an indeterminate period, or periods, probably only briefly, find some sort of undemanding remunerative employment if he were to experience some periods of psychological improvement, which may for example occur once he has become more financially secure as a result of wise investment of the proceeds of this litigation.
The second such feature is the more pessimistic note introduced into the picture by the history recorded by Dr Clark, namely, that of the plaintiff's thoughts and talk of possible suicide, a matter Dr Clark first noted in his examination of the plaintiff in 2010, and again in 2012. Counter-balancing that factor to some degree, is the fact that the plaintiff has never sought to act on such thoughts. Furthermore, the necessary assumption for assessment purposes, is that the plaintiff will be receiving appropriate and structured medical treatment, including psychiatric care, which would be expected be include vigilance against such a potential factor.
Having regard to all of those matters, I consider that the appropriate discount for potential adverse vicissitudes should be 25 per cent, which, when applied to the assessed sum of $602,800, yields the sum of $452,100. Accordingly, I award the plaintiff damages for future loss of earning capacity in the amount of $452,100.
Future loss of superannuation
In accordance with convention, using the actuarial formula agreed upon between the parties at 11 per cent, damages for loss of future superannuation benefits should be assessed at 11 per cent of $452,100, being the amount assessed for future economic loss, yielding an amount of $49,731. Accordingly, I award the plaintiff damages for loss of future superannuation benefits in the amount of $49,731.
Past domestic assistance
On behalf of the plaintiff, it was submitted that damages for the value of past gratuitously provided domestic assistance, as provided by s 141B of the MAC Act, should be assessed in the amount of $173,397, being for 21 hours per week of assistance, at the flat rate of $23 per hour. In contrast, on behalf of the defendant, it was submitted that no such damages should be awarded because the assistance provided, does not meet the statutory threshold.
In order to obtain an insight into the plaintiff's need for past domestic assistance it is necessary to refer to both the lay and medical evidence that was given in the proceedings.
A survey of the medical reports reveals that there is a degree of support for a claim for domestic assistance.
In his report dated 29 July 2009, Dr Sun thought it would be reasonable for the plaintiff to have access to gardening and handyman assistance for 4 hours per fortnight. Dr Sun reiterated that opinion in his most recent report dated 10 November 2011.
In his report dated 12 May 2010, Dr Vote considered that an allowance of 2 - 3 hours per week for domestic assistance was reasonable.
In his report dated 21 May 2012, Dr Bodel reviewed the plaintiff's history of having some difficulty with household maintenance and cleaning activities. He noted the plaintiff was able to manage his personal care for matters such as showering, dressing and toileting. Dr Bodel suggested that the plaintiff be provided with 4 hours of domestic assistance per week because of persisting pathology.
Against that background, it is necessary to assess the lay evidence on the subject of domestic assistance.
The plaintiff is able to attend to all tasks involved in self-care and grooming without apparent difficulty. He can no longer mow the lawn but he can do some gardening, comprising watering with a hose.
The plaintiff claimed that as a result of his injury, his wife and children spent "perhaps four to five hours a day" cooking, cleaning and doing other things around the house that he used to previously carry out: T24.32. That evidence was not broken down or analysed into the tasks that were performed for the plaintiff as a result of his injury, as distinct from the benefit provided to other family members or household. Without such an analysis it is not possible to accept the estimate of 4 to 5 hours per day as a reliable guide to assessing the plaintiff's injury-based need for domestic assistance. This is a matter upon which the plaintiff carries the onus of proof. In my view, the cited evidence does not satisfactorily discharge that onus, and this is not a matter upon which inferences or speculation should guide the process of assessment.
The plaintiff said he does some very light housework, such as washing dishes and some vacuuming and dusting, but this is limited to 10 - 15 minutes at a time, due to the onset of pain: T58. He also said he could prepare some basic meals: T23.10 & T23.34.
The plaintiff's wife, Ms Tien, described how she carried out the domestic tasks formerly undertaken by the plaintiff. She said she did the required work slowly, and a little every day. That evidence tends to undermine the calculations advanced on behalf of the plaintiff, as the issue is not the time spent by others in rendering the assistance, but rather, what is a reasonable assessment of the time involved in producing the required assistance.
Mrs Tien confirmed that the plaintiff cooks a little for the children: T84.4. She said they did the shopping together, he carrying the lighter bags and she the heavier ones: T85.32. She also stated that the plaintiff does some hanging of clothes in the wardrobe and she confirmed that he can place clothes in the washing machine and he can help put them on the clothes line: T86 - T87.
Ms Tien claimed that she carried out domestic tasks amounting to about 3 hours per day, these being tasks that the plaintiff formerly carried out himself, uninjured: T88.44. Although it is an approximation, this amounts to 21 hours per week. Given that there are 4 persons in the house, in this case, I consider that the described activities should be divided between those persons. This reveals a notional analysis of 5.25 hours per week for each person, a figure that falls below the threshold of 6 hours per week provided by s 141B of the MAC Act.
The impression from within the lay evidence as to the identification of an injury caused need for domestic assistance to be provided to the plaintiff has persuaded me that I should look to the medical evidence for guidance on the matter of the plaintiff's injury related need for domestic assistance.
Whilst medical opinions on such matters are not necessarily prescriptive, and given the absence from the evidence of any practical-based report from occupational therapists, whose expertise, amongst other things, focuses upon particular tasks of daily or recurring activity where assistance is required for the purposes of estimating the level of assistance required, I propose to follow the formulation put forward by Dr Bodel, namely 4 hours per week. I prefer his opinion to the opinion of Dr Sun because Dr Bodel's opinion is more recent, and is more likely to be reasonably reflective of the plaintiff's current level of need for domestic assistance.
Turning then to the submissions of the parties, it is plainly apparent, as was submitted on behalf of the defendant, that the plaintiff has failed to satisfy the requirement of s 141B of the MAC Act, in order to show that the domestic assistance he has claimed, was for at least 6 hours per week, for more than 6 months. That being so, I make no award for the plaintiff for damages for the value of past gratuitously provided domestic assistance.
Future domestic assistance
On behalf of the plaintiff, it was submitted that damages should be awarded to the plaintiff for future paid domestic assistance for 14 hours per week at the commercial rate of $40 per hour, over his remaining statistical life span, in the amount of $490,336. No discount for potential adverse vicissitudes was applied to that amount.
In contrast, on behalf of the defendant, it was submitted firstly, that there should be no award of damages for future domestic assistance, and in the alternative, if there was to be such an award, it should be assessed at 2 hours per week at the commercial rate of $38.50, which yielded the discounted sum of $57,609.
In my assessment, neither of those submissions should be accepted. At paragraphs [140] to [153], I have identified the evidentiary basis of support for the plaintiff's claim for domestic assistance.
The closest the evidence comes to supporting the notion that there should be a commercial costing of the claim for future domestic assistance is the evidence of the plaintiff that it "would be better if someone come to do the work": T25.17.
There was no indication from within the evidence of the plaintiff or Ms Tien that he intended to pay for future domestic assistance, and there was no evidence from Ms Tien that she either could not continue to do the domestic chores, or that she would not do them in the future. On that state of the evidence, it would be unreasonable to infer that someone would be employed to carry out domestic tasks. Instead, I consider that it is likely that the family will continue to provide the assistance the plaintiff requires.
Consequently, I consider that the value of those future domestic assistance services should be costed at the statutory s 141B rate: Miller v Galderisi [2009] NSWCA 353. I propose to allow 4 hours per week for future domestic assistance, as was suggested by Dr Bodel, and at the current statutory rate, namely $26.36 per hour.
That level of future domestic assistance is the equivalent of $105.44 per week, which, when projected at 5 per cent over the statistical median life span of 35 years (x 875.6), yields the undiscounted amount of $92,323. I propose to discount that sum by 25 per cent for possible adverse vicissitudes, as with the claim for future loss of earning capacity, and for the same reasons that appear at paragraphs [134] to [137] of these reasons. Accordingly, I award the plaintiff damages for future paid domestic assistance in the amount of $69,242.
Future out-of-pocket expenses
The parties were agreed that the plaintiff's damages for the cost of future treatment should be assessed in the amount of $80,000. Accordingly, I award the plaintiff damages for the likely cost of future treatment in the amount of $80,000.
Past out-of-pocket expenses
The parties agreed that the out-of-pocket expenses incurred by the plaintiff as a result of his injury were in the amount of $109,896.82. Accordingly, I award the plaintiff damages for his past out-of-pocket expenses in the amount of $109,896.82.
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Non-economic loss
$200,000
(b) Past economic loss
$276,550
(c) Fox v Wood
$46,821
(d) Past loss of superannuation
$24,889
(e) Future loss of earning capacity
$452,100
(f) Future loss of superannuation
$49,731
(g) Past domestic assistance
$Nil
(h) Future domestic assistance
$69,242
(i) Future out-of-pocket expenses
$80,000
(j) Past out-of-pocket expenses
$109,896.82
Total
$1,309,229.82
Disposition
The plaintiff has succeeded in establishing his entitlement to a verdict and judgment in his favour without discount for alleged contributory negligence and also without the claimed discount on account of an argued application of s 151Z of the WC Act.
Costs
As the plaintiff has been successful in the outcome of the litigation, he should have his costs of the proceedings paid for by the defendants on the ordinary basis, unless otherwise ordered.
Orders
I make the following orders:
(1) Proceedings numbered 2007/294694 and 2011/318357 are consolidated into proceedings numbered 2011/318357;
(2) Verdict and judgment for the plaintiff in the amount of $1,309,229.82;
(3) The defendants are to pay the plaintiff's costs of the proceedings on the ordinary basis unless otherwise ordered;
(4) The exhibits may be returned;
(5) Liberty to apply on 7 days notice if further orders are required.
Appendix 1
"MFI 2"
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Decision last updated: 31 May 2013
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