Lennon Frank Dapozzo and Canberra Telcoms Pty Ltd v Joshua Phillip Vozella
[2013] ACTSC 194
•13 September 2013
LENNON FRANK DAPOZZO and CANBERRA TELCOMS PTY LTD v JOSHUA PHILLIP VOZELLA & ORS
[2013] ACTSC 194 (13 September 2013)
PERSONAL INJURY: multiple motor vehicle accidents - assessment of damages for multiple injuries - assessment of loss of income earning capacity of sole director and shareholder of company - relevance of effect of collapse of company's business in light of the nature of the claimed loss.
No. SC 598 of 2007
No. SC 781 of 2009
No. SC 782 of 2009
Judge: Acting Justice Sidis
Supreme Court of the ACT
Date: 13 September 2013
IN THE SUPREME COURT OF THE )
) No. SC 598 of 2007
AUSTRALIAN CAPITAL TERRITORY ) No. SC 781 of 2009
No. SC 782 of 2009
BETWEEN:LENNON FRANK DAPOZZO
First plaintiff
AND:CANBERRA TELCOMS PTY LTD (ACN 104 029 496)
Second plaintiff
AND:JOSHUA PHILLIP VOZELLA
First defendant
AND:GLENN KENNEDY
Second defendant
AND:CHEN CHOA
Third defendant
ORDER
Judge: Acting Justice Sidis
Date: 13 September 2013
Place: Canberra
THE COURT ORDERS THAT:
Verdict and judgment for the plaintiff in the sum of $1,603,361.19.
The defendants are to pay the plaintiff’s costs of the proceedings. This order is suspended for 7 days to allow any party within that period to list the matter for further argument on the issue of costs.
The exhibits will be retained for 28 days.
Her Honour’s reasons are published.
Mr Lennon Dapozzo has been involved in four motor vehicle accidents. They occurred on 12 February 2006, 8 February 2007, 15 September 2007 and 13 August 2012.
These proceedings related to the assessment of compensation arising out of injuries the plaintiff suffered in the three earliest accidents. Liability was admitted by the defendants in each of these cases. The proceedings were consolidated by an order of the court made with the consent of the parties.
The second plaintiff, Canberra Telcoms Pty Limited, was placed in the hands of a liquidator after the commencement of proceedings. The liquidator informed the court by letter, Exhibit 2, that he consented to the discontinuance of the proceedings by the second plaintiff. With the consent of the other parties I formally record that I granted leave to the second plaintiff to discontinue its proceedings.
Having regard to the consolidation of the three actions, the parties requested that I assess compensation on a global basis, allocating a proportionate amount of the global assessment for general damages to each of the accidents to allow for the calculation of interest.
The issues were:
(a) The nature of the injuries suffered by the plaintiff and the extent to which they were causally related to the three motor vehicle accidents.
(b) The manner in which the plaintiff’s claim for loss of income earning capacity was to be assessed.
(c) The plaintiff’s entitlement to compensation for domestic care and out of pocket expenses.
BACKGROUND
The plaintiff was 48 years old at the date of the first accident and 55 at the date of the hearing. He said he was of average academic ability. He left school after completing Year 10 of his secondary education.
His sporting interests included rugby that he played until he was in his mid-30s. He played baseball from his teenaged years and in competitions until he was aged about 40. He continued to play socially and participated annually in the sport during the Masters Games until incapacitated by the effects of the accidents.
After leaving school the plaintiff was employed in a number of unskilled positions until he secured employment with the entity then known as Telecom where he was trained in electronics and communications systems involved in the installation of telephones. After 11 years in that position he travelled to Queensland and obtained employment on a fishing trawler for about 18 months.
On returning to Canberra he obtained work with a number of electronics and engineering companies installing the cabling necessary for telecommunications systems.
In 2003 he commenced the operation of his own business through Canberra Telcoms Pty Limited. He was the sole director and shareholder in the company. The business involved the provision of cabling work and the installation of information technology and telephone systems. He managed and operated the company’s business with administrative and technical staff and through the engagement of subcontractors from time to time.
The company was placed in the hands of the liquidator in August 2012.
The plaintiff claimed that the failure of the business was the result of his inability to undertake the hands on physical work of cabling and to attend with necessary diligence to the management and administration of the company.
The plaintiff acknowledged some pre-accident injuries and health issues. He suffered a back injury at work in 1989 that was diagnosed as a disc lesion at L5/S1. In 1990 he fractured the scaphoid bone in his left wrist when playing baseball. In 1998 he fell from a ladder and strained his right shoulder. This injury was treated with cortisone injections.
The plaintiff suffered a stress related illness arising out of the breakdown of his marriage. He recovered after counselling and taking anti-depressant medication.
The plaintiff denied that any of these pre-accident conditions prevented him from working or from participating in sporting activity.
He denied that prior to the accidents he suffered from any condition affecting his knees or neck. He agreed that he suffered intermittent back strains.
THE ACCIDENTS
The accident of 12 February 2006
The first accident occurred when the plaintiff was seated in a stationary vehicle in the early hours of a Sunday morning in Gilmore, a southern suburb of Canberra. He was parked at the kerb and was not wearing his seatbelt. He heard the screeching of brakes and saw the headlights of a fast moving motor vehicle approaching directly towards him.
He described an impact of sufficient severity to cause him to fear for his life and that of his female companion. A friend took him home.
The next day he experienced pain in his low back, right knee and in his neck and he suffered from a headache. He consulted his general practitioner, Dr Jamieson, on 13 February 2006, the following Monday. Dr Jamieson recorded the plaintiff’s symptoms as pain in the right knee, right hip, right loin, right shoulder and down the right arm to the elbow and wrist, and right side of the neck.
CT scans and X-rays were ordered.
The plaintiff had one to two weeks off work and on returning to work he was unable to participate physically in laying cables.
The plaintiff continued to suffer from symptoms in these areas of his body. He consulted a chiropractor for treatment of his constant back pain. He said this pain differed from the occasional back pain he experienced prior to this accident. He also suffered from constant pain in his right shoulder.
The plaintiff also complained of an emotional response to the accident. He became frustrated and angry at his continuing symptoms and restrictions and the curtailment of his social activities. His sleep was disturbed.
An ultrasound of the right shoulder demonstrated a full thickness tear of the supraspinatus tendon, bursitis and impingement. The plaintiff consulted Dr Woods who injected cortisone into the right shoulder and recommended that the plaintiff undertake exercises.
The plaintiff said the injection eased his discomfort and he commenced exercising with the assistance of the Peak Performance gymnasium. He continued with discomfort and pain in his neck, back and shoulder. He took up cycling in late 2006 and persevered with discomfort until the pain in his right knee forced him to give up this form of exercise in December 2006.
He discussed the option of surgery with Dr Woods but preferred to address his symptoms through exercise and therapy.
The plaintiff said that by November or December 2006 he was approaching normal but not full function at work. He expected to be fully recovered by the end of 2006. This expectation was not realised. Dr Jamieson recorded a consultation on 2 February 2007 at which the plaintiff complained of continuing significant pain in his arm and of difficulty coping with the pain and his work.
The accident on 8 February 2007
This accident occurred in Fyshwick when the plaintiff was riding his Harley Davidson motorcycle. He collided head on with a vehicle that pulled out from behind a parked truck and moved to the wrong side of the road.
Although both vehicles were travelling at low speed at the time of the collision, the plaintiff was thrown over the handlebars of the motorcycle, the roof of the car and onto the road. He thought he lost consciousness briefly. He was taken by ambulance to the Canberra Hospital from which he was discharged after several hours.
He complained of pain in his back, knees, right hip, right shoulder. The increase in his pain levels caused him emotional upset and depression. The plaintiff consulted Dr Jamieson on 12 February 2007 who recorded additional symptoms on the left side of the plaintiff’s body, including the left shoulder, left knee and aggravation of the previous fracture of the scaphoid in the left wrist. An umbilical hernia resulting from the accident was subsequently diagnosed.
After a short break following this accident, the plaintiff resumed his training with Peak Performance. He continued to suffer from feelings of frustration and anger because of his incapacity for physical activity to the level he enjoyed before the accidents. He was unable play sport or ride his motorcycle and pushbike. He was particularly upset by the effect of his injury on his capacity to perform his work. He said he was passionate about his work and it was important to his self esteem.
The symptoms in the plaintiff’s right knee increased after the second accident. They caused him greater difficulty in performing his work where climbing ladders and working in confined spaces became increasingly difficult.
The plaintiff was treated with pain killing medication and continued with rehabilitation and exercise. He said his condition had not improved by the time of the third accident.
The third accident on 15 September 2007
This accident occurred at 5 pm on a Saturday afternoon. The plaintiff’s vehicle was struck from the rear when it was stationary at traffic lights. The plaintiff estimated the speed of the other vehicle to be about 30 kmh. The collision caused considerable damage to the rear undercarriage of his car.
The plaintiff suffered no additional injury in this accident. His pre-existing injuries were aggravated. He consulted Dr Jamieson on 17 September 2007 when he complained of increased pain in his back and neck.
The plaintiff’s anger, depression and frustration further increased. He suffered from poor concentration that caused him to be nervous when driving and to be concerned that his increased incapacity at work would endanger his staff.
He received counselling from Dr Stevens but found this to be of little assistance.
His right knee was of particular concern because it regularly locked and gave way. He was referred to Dr Cross who performed an arthroscopy on 22 February 2008. Notwithstanding subsequent physiotherapy, exercise and rehabilitation, this procedure did not improve the condition of the right knee.
The fourth accident on 13 August 2012
This accident occurred at about 7.30 am when the plaintiff’s vehicle was struck on the right hand side by a vehicle that travelled through a red light. The impact was sufficiently severe to rotate his vehicle one and one half times.
The plaintiff was taken to the Canberra Hospital after the accident. He complained to Dr Jamieson of increased pain in the already injured parts of his body. These increased levels of pain gradually diminished and on 21 February 2013 he reported to Dr Jamieson that they had reached the levels that prevailed prior to the fourth accident.
GENERAL DAMAGES
Dr Jamieson maintained clinical notes that recorded in detail the symptoms reported by the plaintiff after each of the accidents, the treatment provided and the plaintiff’s progress. The plaintiff adopted these notes as an accurate record of his consultations with his general practitioner and the defendants did not challenge their accuracy.
The notes provided a chronology of consistent complaint concerning the conditions affecting, in particular, the plaintiff’s back, neck, right knee and right shoulder and of the treatment provided to deal with those conditions. His treatment continued with attempts to provide pain relief, exercise and other therapies, the purpose of which was to avoid the need for surgery. They confirmed the plaintiff’s evidence of his progress from good health and a positive outlook on life both socially and financially to his current condition of constant pain in multiple areas of his body, depression, social isolation and financial loss.
The plaintiff recently underwent surgery to repair the umbilical hernia that improved but had not, by the date of the hearing, entirely resolved the pain from this condition. He was hopeful of more relief with his continued recovery from surgery.
He continued to suffer from intermittent pain in his left wrist which he supported by wearing a brace.
He continued to suffer pain in his neck and back. His symptoms were aggravated when riding his motorcycle or undertaking long journeys in a car. On the recommendation of trainers at Peak Performance he adopted the use of a back brace that he used when he undertook activities such as gardening.
He was treated with cortisone injections in his back that provided a measure of relief. He continued to rely on four to eight Panadeine Forte per day. Early in 2013 he suffered back pain at night that was so severe that he sought assistance from his neighbours who arranged for an ambulance to take him for hospital treatment.
The plaintiff’s right knee continued to be unstable, lock and give shooting pain if he attempted any lifting activity. He also suffered with pain in his left knee. He expected that an arthroscopy would be required to treat the left knee. He accepted that the condition of the right knee was at the point where a total knee replacement was necessary.
The condition of the plaintiff’s right shoulder has not improved despite continued exercise and therapy. He intended to have shoulder surgery if the condition of the shoulder continued to deteriorate.
The consequences of the accidents, socially and financially, caused the plaintiff to suffer from a depressive illness that was treated with anti-depressant medication. He developed anxiety about the effect that his physical limitations were having on the operation of his business. He was required to take time out of operating the business almost daily to deal with medical appointments, therapy and gym work. He said he did not treat his staff well and he made mistakes at work because of his poor concentration.
The reduction in the income received by the business caused him embarrassment when he was unable to pay the company’s debts, including tax. He put money into the business by selling his motorcycle and other vehicles and using credit cards.
He blamed his mood and behaviour for the break down of his relationship. Loss of libido and inability to assist domestically also contributed to the termination of the relationship.
Shortly before Christmas 2012, without medical advice, he ceased taking anti-depressant medication. As a consequence he suffered anxiety attacks, became angry and involved in arguments. He entertained thoughts of suicide, concerned that he was dependent on borrowing from friends to meet his living expenses.
All of the medical experts accepted the plaintiff as genuine in reporting the consequences of the accidents. He was described as highly motivated in performing rehabilitative exercise and in his desire to return to his pre-injury level of physical function.
All of the medical experts confirmed the inevitability of the requirement for total replacement surgery for the right knee and the high probability that the plaintiff will require surgery for the right shoulder. Although these procedures should provide some relief of the discomfort in these areas, the experts indicated that the condition of the plaintiff’s back and neck will further deteriorate with accelerated degenerative changes.
Associate Professor Stevens and Dr Knox reported that the plaintiff suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Knox reported that the pain disorder was associated with psychological factors and the plaintiff’s general medical condition resulting from his injuries. He and Associate Professor Stevens agreed that the plaintiff would benefit from further psychological counselling.
Assessment
In assessing general damages I took into account the very serious consequences of these three accidents to the plaintiff’s physical and psychological health.
Physically, he was substantially disabled by injuries to multiple areas of his body, in particular his low back, neck, right shoulder and right knee. The only prospect of some relief from his discomfort depended on the outcome of surgery to the right knee and the right shoulder. At the same time, it was probable that the condition of the lumbar and cervical areas of his spine would deteriorate and cause increasing symptoms in those areas.
Psychologically, the plaintiff required further treatment for the management of the Adjustment Disorder from which he suffered as a consequence of his physical injuries and their effect on his lifestyle.
The plaintiff appeared to be making progress in overcoming the consequences of the first accident and there appeared to be prospects of recovery by the time of the second accident. This accident aggravated all of the prior injuries, in particular those affecting his right knee and right shoulder. In addition, the second accident resulted in an umbilical hernia and the development of symptoms on the left side of the plaintiff’s body. After this accident there was little prospect of complete recovery. The third accident further aggravated all of the prior injuries.
Having regard to these factors, I accepted both the amount and proportions proposed on his behalf to compensate him and I awarded general damages as follows:
The accident of 12 February 2006 $90,000
Interest on past component of $45,000 6,093
The accident of 8 February 2007 150,000
Interest on past component of $60,000 7,884
The accident of 15 September 2007 60,000
Interest on past component on $30,000 3,582
$317,559
LOSS OF INCOME EARNING CAPACITY
The major area of contention between the parties was the extent to which the plaintiff should be compensated for loss of income earning capacity.
The plaintiff’s evidence of the physical constraints in performing his work was accepted by the medical experts and it was clear from their opinions that the plaintiff, even after knee and shoulder surgery, could not return to the physical aspects of his work of cabling and installation of telecommunication systems.
Dr Barold said that the plaintiff could not undertake work that required sustained or repetitive movements in the plaintiff’s neck, back and right knee, stretching, reaching or above shoulder work, bending, squatting, kneeling, and twisting. He imposed a weight limited of 2 kgs to shoulder height only. He said the plaintiff should be provided with the opportunity to sit and stand at intervals and to take rest periods. Dr Pascall essentially agreed with these restrictions, although she imposed a weight limit of 10 – 15 kgs.
Dr Knox said that the plaintiff’s psychological disorder did not affect his capacity for employment, except to the extent that distractions from pain and his disturbed mood affected his concentration and impacted on his ability to operate a business.
The plaintiff has been unemployed since the company ceased to trade with the exception of occasional handyman work undertaking small maintenance jobs, such as tiling, gardening and cleaning gutters. He was able to do this work by resting from time to time. He was paid an hourly rate or a lump sum for the jobs that he undertook. This work returned little income and increased his need for pain relief. The plaintiff also assisted a friend who operated a small tobacconist’s shop for two hours on three days each week. He said he was learning the business with a view to running the shop when his friend takes a holiday. He was not paid for this work but he was happy to do it because it provided him with some form of activity.
He faced uncertainty about future employment. He was registered with a number of employment agencies and, as required, he made attempts to find work. His contacts in business were sympathetic but declined to employ him because of his physical condition.
The plaintiff said he wanted to work and he could not envisage that he would not work for the next 10 to 15 years. His intention, before the accidents, had been to build up his company’s business to the point where he was not required to undertake the physical aspects of its work. On that basis he intended to continue to work to the age of 70 years.
He said that he was considering the option of undertaking a 6 – 12 month TAFE course to retrain as an inspector for work cover authorities. He proposed to do this when all necessary surgical procedures had been completed. He thought this would enable him to make use of his knowledge and experience in the building industry generally and in telecommunications in particular.
The plaintiff appeared to have focussed on this option to the exclusion of any other prospect for employment, confirming the opinion expressed by Dr Pascall concerning aspects of his personality that rendered him unsuitable for certain types of employment and likely to wish to control his working conditions and tasks.
The plaintiff’s claim for loss of income earning capacity was clouded by his claim that his injuries affected the extent to which he was able to participate in the business operations of his company to the point where the business failed and the company was placed into liquidation in August 2012.
The plaintiff relied on Exhibit D to support a claim that his continued frequent absences reduced the returns from the company’s business and ultimately lead to the collapse of its business entirely. Exhibit D was a schedule prepared by the plaintiff’s office staff of time taken off after the accident. The total number of hours recorded was 6,732.30.
Ms Aylen, the forensic accountant relied on by the defendants, provided expert opinion on the reasons for the failure of the business. She analysed the financial records of the company for the financial years from 2003 to 2010 and stated that although the business was profitable, it suffered from inadequate working capital, bad debts and poor cash flow management that resulted in unmet taxation liabilities. Ms Aylen was unable to identify any substantial increase in labour costs and she pointed to increases in gross turnover after the accidents, with the obvious exception of the 2007 financial year. For that year, she noted that there was an increase in labour costs of $15,557 but at the same there was a substantial bad debt as well as increases in amounts paid for allowances, rent, storage and travel. She considered that these expenses were unlikely to be related directly to any incapacity suffered by the plaintiff.
While I accepted the validity of the contention that the business of a company might suffer when it was owned and controlled by a principal who, for reasons of ill health was unable to attend to its affairs, I did not consider it necessary to determine the reasons for the failure of the company’s business. It was apparent that this issue was of more relevance to the abandoned claim brought on behalf of the company itself.
Further, the plaintiff did not bring a claim for the loss of the value of the company’s business as a capital asset. His claim was for diminution in income available to him from the company’s business.
He claimed loss of income, past and future, on the basis that he could command a charge out rate as a telecommunications cabler of $100 per hour. Of this sum 45% was deducted to account for expenses and tax, a percentage that Ms Aylen accepted.
The plaintiff therefore claimed loss of $55 per hour for the time that he was unable to participate in his business as recorded in Exhibit D and for 40 hours for each of the weeks after company’s the business terminated in August 2012. No claim was made for the loss suffered between 13 August 2012 and 10 February 2013, this being the period of disability attributed to the aggravation of the plaintiff’s condition after the fourth accident.
On this basis the plaintiff claimed $431,244 for past income loss. For the future, the plaintiff acknowledged the likelihood that he would return to some form of income earning activity. He allowed $200 net per week for this prospect and applied 15% for vicissitudes. He claimed $1,206,800 for his loss of income to retirement at the age of 70.
The defendants challenged the quantum of the plaintiff’s claim by reference to records that indicated that his income from the company varied little after the accidents. They assessed his past loss at $12,279.
The defendants assessed the plaintiff’s future income loss on the basis that he would work to retirement age of 67, earning $1,200 net per week with a residual capacity of 50%. The figure of $1,200 net per week was derived by reference to Ms Aylen’s estimates of the adjusted net profit derived from the company for the 2012 financial year.
This figure failed to take into account the value to the plaintiff of benefits or add backs provided through the company which Mr Pangallo, accountant, estimated to amount to $35,000 to $40,000 per annum. If the value of these benefits was added to the amounts received from adjusted net profits, the weekly net return to the plaintiff would be between $1,800 and $2,000 per week.
The plaintiff’s claim of $2,200 per week was calculated on the basis that he would be in a position to charge for his work at the rate of $55 per hour for the entire 40 hours of his working week. This overlooked his evidence that he was occupied for approximately one day of each 5 day working week in the administration of the company’s business. This reduced his claim by 20% or $440 resulting in a figure close to $1,800 per week net.
The similarity between these adjusted figures was such that I adopted the figure of $1,800 net per week as the appropriate figure to adopt in assessing his loss of income earning capacity.
In establishing loss of income from the date of the first accident to the date upon which the company ceased to trade, the plaintiff faced some difficulties. The figures extracted by Ms Aylen, after adding back the value of benefits provided by the company, indicated that the plaintiff in fact received an income that equalled his income earning capacity. Further, as pointed out by Ms Aylen, the available financial records of the company, with the exception of the 2007 financial year, did not point to significant increases in labour costs or decreases in turnover. Nor did they suggest that there was any change in the proportions of labour costs to gross turnover.
These propositions did not apply to the 2007 financial year during which the adjusted net profit derived from the company’s business fell significantly. Ms Aylen concluded that the company’s records demonstrated a past income loss based on the increase in labour costs incurred by the company in the 2006 and 2007 financial years of $12,279. I considered that this understated the plaintiff’s actual loss for the 2007 year where the adjusted net profit calculated by Ms Aylen was $51,045 less than that achieved in 2008. Ms Aylen noted features of the company’s accounts that, in her opinion, accounted for the reduction in profitability. Those features included provision for a significant bad debt and the accumulation of taxation liabilities.
These were features that, in my opinion, were likely to occur if the administration of the company’s business suffered from inattention. I was therefore prepared to accept that some part of this reduction in the income flowing to the plaintiff from the company’s business in 2007 was the result of his inability, through injury, to work a 40 hour week. I allowed a further $25,000 for the reduction in income for the 2007 year.
At face value it might be open to conclude further that the company’s profits would have improved if the plaintiff had been able to apply himself to its business for the average of 20 hours per week during which he was unable to work after the accidents. Arriving at such a conclusion required the provision of evidence that additional work was available and that it would have translated profitably so as to provide additional income to the plaintiff.
The most that could be claimed was that, but for his injuries, there were a substantial number of hours that the plaintiff might have applied to generating a greater income for the company and subsequently increased profits for distribution to him. Aside from the absence of evidence to establish this proposition, this was not the basis on which the plaintiff mounted his claim either for past or future income loss.
His claim was that in the past and for the future he was capable, but for his injuries, of earning $2,200 net, which after adjustment for time required for administrative duties, was in fact $1,800 net per week.
The claim for past income loss was allowed in the sum of $37,279 for the 2006/2007 financial years with interest for six years at 9% amounting to $20,131. I allowed loss at the rate of $1,800 per week for the 27 weeks claimed between August 2012 and August 2013 with interest at 4.5% amounting to $2,187. I allowed loss of superannuation on past income loss in the sum of $9,447. The total allowed for past income loss and superannuation was $117,644.
The claim for future income loss was not similarly problematic. The evidence clearly established an income earning capacity of $1,800 per week net. I accepted the plaintiff’s evidence that he enjoyed his work and that in all likelihood he would have continued in employment to the age of 70 years. While I took into account the plaintiff’s statement of intention to retrain when the necessary surgical procedures have been completed and of the evidence that he demonstrated strong motivation to return to employment, I did not accept the defendant’s claim that his residual earning capacity should be assessed at a figure as high as 50%. I considered that his prospects of employment would remain severely limited by his physical restrictions.
I assessed his residual income earning capacity at $400 net per week and awarded compensation for future loss of earning capacity at $1,400 per week net, discounted by 15% to take account of vicissitudes. The amount allowed was $718,760. Superannuation loss was allowed at 14% in the sum of $100,626. The total allowed for future income loss was $819,386.
Domestic Care
The plaintiff said that his former partner performed his share of domestic chores until the time of their separation and after that his children and friends helped with housework. He also had assistance in caring for the large garden of his former home.
He recently moved into a house that had a smaller garden. He shared the new house with a boarder who carried out the domestic work involved in cleaning the bathrooms and kitchen in return for a reduction in rent.
The plaintiff said he remained nervous when driving. For this reason he preferred that others drive him or he used public transport.
The plaintiff agreed that he used the back brace and wrist support and that he managed some mowing and gardening at an appropriate pace. An occupational therapist provided him with advice on arranging his house to minimise discomfort. He estimated that, if he paced himself, it would take him a weekend to clean his house.
Medical opinion varied on the plaintiff’s requirement for domestic assistance. Dr Barold assessed his needs between 7.5 and 9.5 hours per week. Dr Pascall, although listing the very considerable restrictions on his capacity for employment, said he could manage housework and gardening, regardless of the effort involved, by performing the necessary activities in a gradual or paced manner.
The plaintiff claimed five hours per week at $25 per hour for assistance both past and future. The defendants accepted the rate of $25 per hour but suggested two hours per week would suffice if the plaintiff adopted the suggestion that he carry out domestic activities at an appropriate pace.
I took into account the considerable restrictions on the plaintiff’s physical capacity arising from the continuing pain in his neck, back, knees and right shoulder. While I appreciated that some improvement might be expected after surgery on his right knee and right shoulder, it was apparent that his capacity for the heavier aspects of housework and gardening would continue to be seriously compromised. I considered that an allowance of two hours per week for housework and two hours for gardening would be appropriate for both his past and future needs.
I allowed $39,200 for the past and $102,400 for the future. In the absence of evidence that the plaintiff actually expended funds for the provision of care services, I made no allowance for interest on the amount awarded for past care.
Out of pocket expenses
The parties agreed that past out of pocket expenses amounted to $75,268.41. They agreed that, of this sum, the plaintiff paid $21,916.75 so that he was entitled to interest of $6,903.78.
The defendants suggested that a sum of $50,000 would be adequate to meet the plaintiff’s needs for future treatment. I did not accept that provision of this sum would suffice.
The plaintiff clearly required provision for surgery to his right knee and right shoulder. The plaintiff adopted the cost estimates for these procedures that were supplied by Dr Barold.
The plaintiff also claimed for ongoing expenses of consulting his general practitioner, orthopaedic surgeon, physiotherapist and psychologist and of attending at a gymnasium on an annual basis for the remainder of his life expectancy. This resulted in a claim for future treatment costs of close to $200,000.
While I accepted that some aspects of treatment would be required on a life long basis, I did not accept that this applied to all of the plaintiff’s needs. In particular, I did not accept that psychology would be required for more than the four years proposed by Dr Barold. I doubted that a gymnasium program would be required for the whole of the remainder of the plaintiff’s life. I did not accept that the injuries suffered in the accident would generate a life long requirement for 10 sessions of physiotherapy per annum or consultations with a general practitioner and orthopaedic surgeon with the frequency proposed.
Applying an overall reduction to take account of the overstatement of these claims, I determined that an appropriate allowance for future out of pocket expenses would be $125,000.
Summary
The plaintiff’s damages are assessed in the following amounts:
General damages $317,559.00
Past income loss 117,644.00
Future income loss 819,386.00
Domestic care past and future 141,600.00
Out of pocket expenses past and future 207,172.19
$1,603,361.19
I note that of these sums, the defendants paid for out of pocket expenses of $53,351.66 and advanced to the plaintiff the sum of $15,000.
ORDERS
Verdict and judgment for the plaintiff in the sum of $1,603,361.19.
The defendants are to pay the plaintiff’s costs of the proceedings. This order is suspended for 7 days to allow any party within that period to list the matter for further argument on the issue of costs.
The exhibits will be retained for 28 days.
My reasons are published.
I certify that the preceding one-hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate:
Date: 13 September 2013
Counsel for the plaintiffs: Mr A J Bartley SC with Mr F Toscano
Solicitors for the plaintiffs: Ken Cush & Associates
Counsel for the defendants: Mr P J Nolan
Solicitors for the defendants: Moray & Agnew Lawyers
Date of hearing: 18, 19 March 2013 & 26, 27, 28 August 2013
Date of judgment: 13 September 2013
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