McLean v Darlington Point Sawmills Pty Limited

[2005] NSWSC 1012

CITATION:	McLean v Darlington Point Sawmills Pty Limited [2005] NSWSC 1012
HEARING DATE(S):	14 - 17 June 2005, 20 - 22 June 2005
JUDGMENT DATE :	6 October 2005
JUDGMENT OF:	Hislop J
DECISION:	(1) There will be judgment for the plaintiff in the sum of $824,667.03; (2) The defendant is to pay the plaintiff's costs; (3) Liberty to the parties to apply within 7 days on the question of costs.

CATCHWORDS:	Industrial accident - Contributory negligence - Assessment of damages
LEGISLATION CITED:	Supreme Court Act - s 76E Workers Compensation Act 1987 - Pt 5, Div. 3, s 151G
CASES CITED:	Dell v Dalton (1991) 23 NSWLR 528 Ghunaim v Bart (2004) Aust Torts Reports 81-731 McLean v Tedman (1984) 155 CLR 306 Medlin v SGIC (1995) 182 CLR 1 Southgate v Waterford (1990) 21 NSWLR 427 Sullivan v Gordon (1999) 47 NSWLR 319
PARTIES:	Plaintiff - Philipha Louise McLean Defendant - Darlington Point Sawmills Pty Limited
FILE NUMBER(S):	SC 20083/00
COUNSEL:	Plaintiff - Mr AJ Bartley SC with Mr F Tuscano Defendant - Mr DGT Nock SC with Mr J Gracie
SOLICITORS:	Plaintiff - Porters Lawyers Defendant - Vardanega Roberts

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Hislop J

6 October 2005

20083/00 Philipha Louise McLean v Darlington Point
Sawmills Pty Limited

JUDGMENT

Introduction

1 This is a claim by the plaintiff to recover damages for personal injuries sustained in the course of her employment with the defendant on 30 June 1998.

2 The principal injury involved the traumatic amputation of the plaintiff’s left arm, shoulder, scapula and part of the clavicle. The injury occurred when the plaintiff’s left hand was caught in a conveyor and she attempted to prevent herself being dragged further into it.

3 The defendant has admitted liability but contends the plaintiff was guilty of contributory negligence. The issues thus are contributory negligence and the assessment of damages, the latter being subject to the limitations imposed by the Workers Compensation Act 1987 (“the Act”) Part 5 Division 3 as it was at the time of injury.

Background facts

4 The plaintiff was born on 3 December 1972. Her parents separated when she was 6 years old. She was raised by her mother and lived with her in various parts of Australia where her mother worked as a fruit picker.

5 The plaintiff was educated at a number of schools until age 17 or 18. She did not obtain a certificate. She described herself as a “pretty good student”. No school records were in evidence.

6 After she left school the plaintiff worked fruit picking for about four years. She received unemployment benefits during those four years when she was unable to find work or didn’t have transportation to some jobs. She estimated that during that period she spent about six to eight months out of work.

7 In 1994 the plaintiff moved to Western Australia and commenced to live with her father. She obtained employment at Bunnings sawmill, stacking timber. She remained in that employment for about four years. She enjoyed the job.

8 In 1998 the plaintiff returned to live in New South Wales. On 12 February 1998 she obtained employment with the defendant at its sawmill at Darlington Point. The job involved stacking, strapping and spray painting timber.

9 On 30 June 1998 she sustained the injury the subject of these proceedings. She was admitted to Griffith Base Hospital. Microvascular replantation surgery was not possible and the wounds were closed. The plaintiff was discharged from hospital 16 days later.

10 Thereafter the plaintiff lived in Griffith, Wagga and for a month in Melbourne. In 2001 she moved to Mareeba in North Queensland. She initially rented a home there but then purchased a 26 acre property upon which 500 mango trees were growing. The plaintiff continues to reside on the property.

11 The background facts are either agreed or not disputed. I accept them. I turn to the issues.

Contributory negligence

12 The plaintiff sustained injury whilst working in a pit in the mill floor. Two conveyors operated within the pit. The first, a horizontal conveyor, carried sawdust and offcuts to the pit. There the conveyor belt passed over a roller, causing the conveyed material to fall onto the second conveyor. The second conveyor was an incline conveyor. It consisted of a continuous conveyor belt running between two rollers. The upper side of the belt conveyed material from the pit to bins into which the material dropped when the belt passed over the return roller. The belt then returned empty to the pit to be reloaded once it had passed over the pit roller.

13 The incline conveyor was housed within a metal structure. A metal girder, being part of that structure, ran parallel to the returning incline conveyor belt.

14 As the returning belt approached the pit roller it passed between metal uprights from each of which protruded a lengthy belt tension adjusting bolt. The bolts were parallel to the belt.

15 There was a tendency for some of the conveyed material to spill from the conveyor belts onto the floor of the pit and from time to time it was necessary to remove the spillage.

16 The plaintiff gave evidence that on the day of the accident she was required to shovel spillage from the pit. In order to do this work she stood beside the incline conveyor facing into the pit. The incline conveyor was on her left side when standing in that position and the top of the girder previously referred to was just below her left shoulder. The conveyors were operating. As the plaintiff was left handed she gripped the shovel with her left hand below her right and swung the shovel away from the conveyor to a container on her right into which the spillage was placed.

17 The plaintiff gave the following evidence:

Q. So you remember being in the pit facing the way that you have described and you were shovelling up into the bin. What’s the next thing you remember?
A. The next thing I remember I was caught.
Q. And which part of you was caught?
A. My hand.
Q. Which hand?
A. Left hand.
Q. And what was happening to your body?
A. I was more or less getting dragged into the conveyor belt.
Q. Upwards or downwards?
A. I don’t know I just got dragged in and I felt the bolt into my throat.
…
Q. Were you still being drawn toward the bolt?
A. Yes. I felt the bolt dig into my throat and the next thing I knew I just had to get out and I just pulled myself out.
Q. And where did you end up?
A. On the bottom of the pit.
Q. And where did your arm end up?
A. Up in the conveyor belt.

18 There was no witness to the accident though staff came immediately to the plaintiff’s aid upon its occurrence.

19 Following the plaintiff’s injury mesh was installed to prevent access to the belt. A frame and planks covering part of the pit were installed as was an emergency stop button. At the time of injury there were no means of stopping the conveyor from the pit. The mesh would have prevented any part of the plaintiff’s person coming in contact with the conveyor belt.

20 The plaintiff’s claim was framed in negligence and breach of statutory duty. Contributory negligence may be raised as a defence in respect of such a claim - s 151N of the Act.

21 The contributory negligence relied upon by the defendant was “the act of the plaintiff in putting her left hand in the proximity of a moving conveyor belt which she knew or ought to have known from her experience was a dangerous situation”.

22 The threshold issue is whether, as the plaintiff contended, her hand came into contact with the conveyor belt whilst she was shovelling in the pit or whether, as the defendant maintained, she deliberately placed her hand in proximity to the conveyor belt when she knew or ought to have known that to do so was dangerous.

23 The evidence to support the contention that the plaintiff deliberately put her hand in proximity to the moving belt was as follows:

(i) (a) The plaintiff was left handed. She held the shovel in both hands with her left hand in the lower position on the handle. She shovelled from left to right away from the conveyor. The defendant submitted the section of conveyor belt which the plaintiff contacted ran on the inside of the metal girder which was part of the structure supporting the conveyor belt. The girder extended above and below the belt. The girder was just below the plaintiff’s shoulder height when she was standing upright. It would be impossible for the plaintiff’s hand to accidentally contact the belt whilst shovelling.

(b) The plaintiff gave evidence the girder was not there at the time of the accident. If that was so the possibility that the plaintiff’s hand may have accidentally contacted the belt whilst shovelling would be increased. However the defendant’s director, Mr Makenham, gave evidence that the girder was put there by the manufacturer when the mill was built and was present at the time of the accident. I accept Mr Makenham’s evidence. It was not challenged and appears consistent with the photographs of the conveyor.

(ii) Mr Makenham gave evidence the plaintiff said to him at the hospital following the accident “I’m sorry Maurie, I should never have put my hand in there”. The plaintiff denied seeing Mr Makenham at the hospital. However it was not put to Mr Makenham that he was in error in relation to the conversation and I accept his evidence. That the plaintiff may not remember Mr Makenham’s visit is not surprising having regard to her condition at the time.

(iii) (a) Mr Simpson was an expert engineer retained for the plaintiff. He had a view of the conveyor in company with the plaintiff and wrote a report dated 18 May 2000 part of which was tendered in evidence.

(b) Mr Simpson, in his report, recorded the following history:

Whilst carrying out the operation of cleaning out the pit and the conveyor head and tail pulleys, the plaintiff noted a quantity of sawdust and off cuts of wood on top of the lower half of the elevating conveyor belt. This material was observed by the plaintiff to be passing from the belt surface around the tail pulley and back onto the belt again… In order that the plaintiff could clear the material from the belt, she took a small off cut of timber in her left hand and attempted to “wipe” material off the side of the (still operating) conveyor belt. As the plaintiff did so, however, the glove and fingers of her left hand became caught in the in-running nip point created by the belt and the … tail pulley.

(c) The plaintiff in evidence said she was unable to remember giving Mr Simpson that history and could not remember if that was what she attempted to do.

(d) The plaintiff gave the following evidence:

Q: Would there by anybody else other than you who would be able to give that description of what was going on at the time you were hurt, other than yourself?
A: No.


(e) The part of Mr Simpson’s report which was admitted into evidence was tendered by the defendant. The tender was initially opposed by the plaintiff but subsequently consented to.

(iv) Dr Scott (report 29 November 2000) recorded the following history from the plaintiff:

…one block of wood was caught up on the conveyor belt where she was working. She said she went to release and remove the wood. Ms McLean said that there was no stop button and the conveyor belt was not guarded. In the process, her left arm was caught in the conveyor belt.

(v) I note the plaintiff sought to tender a report of an inspection by officers of the Department of Industrial Relations. The tender was opposed. The report was provisionally admitted as an exhibit (ex K) but subsequent to the hearing the plaintiff withdrew the tender.

24 In my opinion, it is improbable the plaintiff’s hand accidentally came into contact with the belt whilst she was shovelling. On the evidence before me it is far more likely the injury occurred when the plaintiff attempted to remove a piece of wood or other material from the returning belt and I so find.

25 The plaintiff gave the following evidence:

Q: Were you aware – in Western Australia I am talking about – of the need to keep clear of moving machinery such as conveyor belts and the like?
A: Yes.

The plaintiff also gave evidence that when she was working with the defendant she was not aware of the dangers associated with moving conveyor belts and the like. I am unable to reconcile this evidence with that quoted above but note that the evidence was given shortly before the plaintiff manifested distress in the witness box. In my opinion it is probable the plaintiff would have been aware, in a general sense, that physical contact with a moving conveyor belt could lead to injury and that placing one’s hand in proximity to the belt could involve a degree of risk and I so find.

26 The crucial question then becomes whether the plaintiff’s actions should be categorised as contributory negligence or as mere inattention, inadvertence, thoughtlessness or the like, there being a well recognised distinction between the two – McLean v Tedman (1984) 155 CLR 306 at 315.

27 The defendant bears the onus of proving, on the balance of probabilities, that the plaintiff was guilty of contributory negligence. Thus the defendant has the burden of demonstrating that the plaintiff’s conduct demonstrated a departure from the standard of care of the reasonable worker rather than an occasion of momentary inadvertence, some inattention or some taking of risk which was excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable person – Ghunaim v Bart (2004) Aust Torts Reports 81-731.

28 In my opinion the defendant has not established the plaintiff was guilty of contributory negligence for the following reasons:

a) the defendant caused or permitted the cleaning work to be carried out in close proximity to the conveyor belt whilst it was in operation. It failed to fence the dangerous parts of the conveyor as required by law. No stop button was provided in the pit which would have permitted the belt to be temporarily stopped if the need to do so arose.

b) A piece of wood or other debris should not have been on the return section of the belt. It was desirable to remove it as otherwise it would be likely to strike against, or even be caught under, the pit roller.

c) The plaintiff was described by Mr Makenham as a very very competent employee. I infer she was also a conscientious one. She could not stop the belt from where she was located. It would have been the work of a second or so to remove the piece of wood or other debris from the return belt. To seek to remove the materials in these circumstances was the very action which a conscientious employee may well take, not contemplating the risk that such action involved.

d) The plaintiff had done this job only two or three times previously. Her actions in attempting to remove the piece of wood or debris were done in the interests of the defendant and not her own.

e) It is probable the plaintiff’s actions were spontaneous, she saw the piece of wood or other debris and moved to remove it without thought.

f) Even if the action was not purely spontaneous, in my opinion, it is properly to be categorised as the taking of a risk which was excusable in the circumstances.

g) Additionally, Mr Simpson described the plaintiff’s duties as cleaning out the pit, conveyor head and tail pulleys. The defendant failed to adduce evidence that it was not part of the plaintiff’s cleaning duties to remove any material or debris on the returning belt. Mr Simpson’s description suggests it may have been part of her duties. I would not uphold a claim for contributory negligence where the plaintiff was injured whilst carrying out the duties which the defendant required her to perform. The defendant has not established that this was not the case.

29 Accordingly, I find that the defendant has not established contributory negligence on the part of the plaintiff and that no apportionment of damages is required.

Damages

Non economic loss

30 Initially after her release from hospital, the plaintiff could do little for herself. Her difficulties were compounded as she had been left hand dominant before the injury. Her mother would assist her with washing and dressing and prepare food for her. Her brother would run errands for her and he or her mother would accompany the plaintiff on her visits to the hospital outpatients department.

31 By September 1998 the wounds were all well healed and gradually the plaintiff became “better able to do things” for herself. She was assisted in her rehabilitation by an occupational therapist, Ms Davidson, who taught her how to deal with things as a one armed person. She was provided with various appliances and equipment that assisted her to do many things one handed. Ms Davidson reported on 14 September 1998:

Activities of Daily Living: Philipha is continuing to find her confidence again and is trying increasing number of tasks. She has resumed some food preparation and is starting to do gardening and some leisure activities. It was pleasing to see that she travelled alone to Sydney most recently.

In December 1998 she reported the plaintiff was as fit for work as she would ever be.

32 The plaintiff can bathe and dress herself, prepare meals, do the dishes, hang out clothes, fold the washing etc, albeit she is slower in doing these things than pre-injury. She cannot vacuum or sweep the floor. She enjoys gardening and has planted flowers which are easy to maintain though she can’t pick up heavy items or do more physical tasks. She can drive a car fitted with a spinning knob and operate an unmodified quad bike on the property.

33 Although the injury site was not painful once the healing process was complete the plaintiff did suffer from phantom pain for which she required medication. She still experiences phantom pain from time to time though she no longer requires medication for it.

34 Dr Jones recorded a complaint of neck pain in July 1998 for which physiotherapy was prescribed. In 2004 her general practitioner, Dr Bestman, noted a complaint of thoracic pain from time to time which he attributed to uneven forces being applied to the spine. These complaints do not appear to have been regarded as significant by her medical attendants.

35 The plaintiff was “horrified” when she first saw herself in the mirror following the accident. Her initial grief reaction to the loss of the arm was intense and her mental state during the initial period of convalescence “wasn’t too good”. During this period she regularly consulted Mr Flockton a psychologist who gave her “lots of help” with coming to terms with losing the arm. The plaintiff gave evidence she felt she had come to terms with the injury by 2001. Mr Flockton, in his report dated 8 October 2002, observed that the plaintiff was relaxed, alert, with no signs of distress, that speech was normal and mood neutral to cheerful, affect was appropriate and attention and concentration normal, his estimate of intellectual ability remained in the lower average to average range. He concluded:

The overall profile of Philipa’s responses suggest a mild level of impairment to pre-incident functioning directly and solely relating to the injury for which the current claim is made. There is however a noticeable mediation of problems reported by her, consistent with her improved presentation and the absence of a diagnosable psychiatric condition including post-traumatic stress disorder or major depression.

36 The plaintiff had to cope with a degree of psychological trauma in her life unrelated to the injury. Her mother became ill with cancer eventually dying in 2002, her father died in September 1999, one of her brothers was murdered and the other was sentenced to a term of imprisonment. The plaintiff did not seek psychological assistance between 2001 and 2004. On the latter occasion, shortly before court proceedings in respect of her injury, she sought psychological assistance from a psychologist, Ms Sticher. She saw Ms Sticher on a number of occasions. The problems for which she sought assistance were principally related to difficulties in managing the situation between her uncle and brother who were both living with her, their drunken behaviour and failure to support her during the court process. Ms Sticher concluded:

The plaintiff’s psychological issues should not limit her normal functioning to a significant degree under most circumstances. However, she is likely to be more reactive to stressful situations, and take some time to settle afterwards…I understand that Ms McLean has had several issues in addition to her work injury, I would view them as complicating and intensifying her symptoms, rather than being an initial causal factor.

She was then prescribed antidepressants for the first time. She finds that they help her but she does not expect to take the medication long term. She also takes Valium on occasions to calm her down when stressed. Otherwise she does not take medication.

37 The plaintiff gave evidence she is not self conscious about going out without wearing a prosthesis though she prefers the appearance of having two relatively even and equal shoulders to the look of an obviously missing shoulder. She achieves this by wearing a shoulder filler.

38 The plaintiff developed Horner’s Syndrome (partly closed eyelid on the left) as a consequence of the injury. This problem was successfully treated by day surgery in November 1999.

39 Section 151G of the Workers Compensation Act required that the assessment of non economic loss be proportionate to “a most extreme case”. The use of the expression “a most extreme case” rather than “the most extreme case” avoids any requirement to imagine the most extreme case and put that at the top of some grisly tale of catastrophes (Southgate v Waterford (1990) 21 NSWLR 427 at 434). Nevertheless, some sense of proportion must obtain and those matters which are to be placed within the category of “a most extreme case” must not only be extreme but “most” or “very” extreme – Dell v Dalton (1991) 23 NSWLR 528 at 533B-E.

40 The plaintiff submits the appropriate assessment for non economic loss is 100% of a most extreme case. The defendant submits the appropriate assessment is 80%. It cannot be doubted that the trauma suffered by the plaintiff was immense and its effect on her profound. The result, both in terms of disfigurement and impairment is permanent and the plaintiff is young. Nevertheless non economic loss is to be compensated under the legislation by reference to “a most extreme case”. The plaintiff is able to walk and talk, her cognitive function is unaffected, she is able to drive and to attend to most of the requirements of everyday living. Effect must be given to the intention of the legislature and, so viewed this case is not a most extreme case. However it is a very serious case.

41 The statutory maximum for non economic loss recoverable pursuant to s 151G at the time of injury was $228,350.00 I award 90% of that sum i.e. $205,515.

Loss of earning capacity

42 The plaintiff has not engaged in employment since the injury nor has she sought work. She gave evidence that had she not been injured she “planned on being more active in the mill either grading or stacking or going to another mill and getting a higher career, because I just absolutely loved it, just a passion.”

43 The plaintiff submits she has no exercisable residual earning capacity and that her damages for impairment of earning capacity past and future should be calculated on that basis. Further, there should be no deduction for vicissitudes as, if uninjured, the plaintiff probably would have obtained better remunerated employment in the timber industry.

44 The defendant concedes the plaintiff should be compensated on the basis of total loss of earnings from the date of injury until the beginning of 2002 but beyond that date submits her loss should be calculated on the basis she has a retained earning capacity; that allowance should be made for the probability that from time to time she would have experienced unemployment and that an appropriate allowance for vicissitudes should be made.

45 The parties have agreed that, uninjured, the plaintiff would have earned an average $470 net per week from the date of injury to date and $557 net per week thereafter.

46 The plaintiff, with the assistance of her brother Adam, harvested some of the mangoes growing on the property. She successfully sold some of the crop to local icecreameries, cafes and restaurants after peeling, slicing and freezing the mango cheeks. Despite her disability the plaintiff was able to peel and slice the mangoes. She has hopes of continuing this business but has not drawn up a business plan. It was accepted by the defendant that any potential earnings from the mango farm should not be taken into account in the assessment of damages.

47 The relevant legal principles are clear: in order to recover damages for loss of earning capacity the plaintiff must establish that her earning capacity has in fact been diminished by reason of the negligently caused injury and the diminution of earning capacity is or may be productive of financial loss – Medlin v SGIC (1995) 182 CLR 1.

48 It is common ground that the plaintiff’s earning capacity has been diminished by reason of the injury and that the diminution of earning capacity has been, and will continue to be, productive of financial loss. The task is to measure that financial loss.

49 The plaintiff’s schooling was disrupted and, although she is of at least average intelligence, she did not obtain a school certificate and has no tertiary qualifications. She has always done manual work either as a fruit picker or in a sawmill. If the plaintiff had not been injured she may well have continued to work in the timber industry. This was her intention and she loved the work.

50 It is likely that had the plaintiff continued in unskilled labouring work she would have been subject to unemployment from time to time and that as she aged her ability to retain employment in heavy physical work would have declined.

51 The plaintiff was well thought of by the defendant and if she had continued in the industry may have received promotion. However that would have depended upon opportunity elsewhere as the defendant’s business was about to close down.

52 The plaintiff is no longer fit for manual work, nor is she fit for work which would impose undue strain on her right arm. Realistically she will require significant retraining if she is to return to the workforce.

53 As the plaintiff has only one arm activities such as secretarial, data entry, typing or computer use would not appear feasible. It is difficult to envisage many forms of employment in which the plaintiff could engage and successfully compete with able-bodied persons. Hostess, guide taking groups, light courier work, receptionist have been suggested and may be possibilities. The defendant has stressed the plaintiff’s obligation to mitigate her loss. The plaintiff’s prospects of re-employment would be improved if a functional prosthesis became available.

Past wage loss

54 I would allow some reduction to the plaintiff’s claim of total past wage loss by reason of the fact the plaintiff would have lost her job with the defendant and there was the possibility of unemployment then and subsequently even if uninjured. An additional factor which I have taken into account is the low possibility the plaintiff, if she had sought work, may have obtained some employment. I allow $150,000 for past wage loss.

Impairment of future earning capacity

55 As to the calculation of damages for impairment of future earning capacity there is the possibility that at some stage the plaintiff will find employment, particularly if a functional prosthesis becomes available to her, and, if she does, that her earnings may exceed that which she would have been earning if uninjured. There is also the possibility the plaintiff, if uninjured may have obtained promotion in the timber industry or taken employment in some other field. There was a real risk of unemployment from time to time had the plaintiff continued to work in the timber industry or in other unskilled manual work.

56 The task of determining the extent to which the diminution of earning capacity may be productive of financial loss in the future is of necessity, imprecise. It involves assessment of numerous possibilities. Doing the best I can on the material available, I allow the plaintiff damages calculated at full loss of wages of $557 net per week, reduced by 25% to take account of general vicissitudes and the matters referred to in the preceding paragraph i.e. $357,468.

Loss of past superannuation

57 The parties have agreed that this loss should be calculated on the basis of 8% of gross wage loss. I allow $15,135.

Loss of future superannuation

58 The parties have agreed this loss should be calculated at 9% of gross future loss. I allow $41,719.

Fox v Wood

59 This head of damages is agreed at $8,382.40.

Future professional services

60 The plaintiff claims $182,868 for future professional services, including chiropractic treatment – 26 consultations per annum at $35 per visit $16,981; occupational therapist – 1 consultation per annum $48,000; clinical psychologist – 2 consultations per annum at $180 per consultation $7,000; hair removal $6,000; nail care $5,000; hairdresser $67,000, consultations with a general practitioner and physiotherapy.

61 The only direct support for these claims is the somewhat limited support in Ms Davidson’s report dated 19 June 2003 and the plaintiff’s evidence as to past matters.

62 Ms Davidson reported:

She has more recently developed back and neck pain and currently sees the chiropractor once a fortnight with good benefit – she requires:

· Body wax to remove unwanted hairs under her armpits every 3 months costing $80

· Nail care every 6 weeks costing $30

· Attend a hairdresser in Mareeba weekly at a cost of $30. She also wants to be able to attend a hairdresser daily to get her hair tied back at a cost of $10 per day plus the cost of petrol and car use for the 20km trip to the town.

· Occupational therapy on an annual basis

· Fortnightly physiotherapy massages

63 The defendant would allow $10,000 under this head. It submits:

There never has been a claim or account produced for chiropractic treatment;

The occupational therapist ceased to treat the plaintiff in 2002;

There was no indication of any physiotherapy;

The plaintiff had given no evidence as to hair removal treatment;

The plaintiff may need some nail care;

Most women consult a hairdresser from time to time;

The plaintiff was not being treated by her general practitioner in respect of her arm;

The plaintiff had not established any amounts being paid for a period going back almost 3 years and had not established any need except perhaps a hairdresser on some occasions.

64 The plaintiff accepted that she had the onus of proving the need for these future services and that there was nothing specific in the evidence to support the claim. Plaintiff’s counsel stated “It is really an additional item of general damages, I suppose, in a way, one where some process of reasoning has to be revealed, and there is to some extent an appropriate global approach to figures like that”.

65 It is impossible to be precise in respect of a claim of this nature. It does appear to me that the claim for chiropractic treatment relates to complaints about the back and other pain which may or may not be related to the injury and for which chiropractic treatment may or may not be appropriate. I do not regard that claim as established. The need for an occupational therapist may arise if the plaintiff changes residence or perhaps when she became aged, there may be some occasions in the future when the assistance of a psychologist might be required in respect of the sequelae of the arm injury, there is a need for attention to the nails of the hand from time to time, and a need to wax the armpits, there may be some greater need to attend a hairdresser than had injury not occurred though far less frequently than on the daily basis claimed, and even then taking account that the plaintiff presumably would have visited the hairdresser from time to time even if uninjured. There may be occasions in the future when it will be necessary for the plaintiff to consult a general practitioner, or have physiotherapy, particularly if the right arm becomes overstrained.

66 The plaintiff’s claim is really an ambit claim. Doing the best I can I allow damages under this head at $50,000.

Future Prosthetics

67 The plaintiff assesses the cost of replacing the Utah arm every 5 to 6 years at $373,200 but claims $350,000 under this head. The defendant submits $75,000 should be allowed.

68 The plaintiff’s history in relation to prostheses was recorded by Ms Davidson (report 2 August 2002) as follows:

Initially she was provided with a shoulder filler prosthesis. She was then provided with a purely cosmetic arm which she wore for a period of time but no longer wears. She was then provided with an electric hand which was switch controlled with a passive locking elbow. She no longer uses this prosthesis. She was then provided with an electric hand on an ergo arm again, which she no longer uses. Late in 2001 she was provided with a fully electric Utah arm for which she had extensive training but it has not been used since February 2002. The only prosthesis she plans to use in the future is the shoulder filler. This will probably require replacement every two years.

The shoulder filler equalises the plaintiff’s upper body and does not involve using the prosthesis at all.

69 The plaintiff is able to put the Utah prosthesis on by herself. The prosthesis is not of any assistance while driving and save for steadying a shopping trolley whilst using the right hand to take goods from shelves the prosthesis is not otherwise useful to the plaintiff outside the house.

70 Inside the house the prosthesis can be used to hold vegetables etc whilst being cut and in folding clothes.

71 A demonstration of its use by the plaintiff in court in lifting an empty water glass was unimpressive, despite the fact the plaintiff had recently undergone further training.

72 A few weeks prior to the hearing the plaintiff had a lining placed inside the prosthesis. This made the prosthesis less cold, a little bit more comfortable and provided a “real nice tight fitting”. The plaintiff has also put waterproof tape on part of the prosthesis to reduce the chance of it getting wet.

73 The plaintiff said she resumed using the prosthesis following these changes. The defendant submitted the use of the prosthesis by the plaintiff a few weeks before this hearing, not having used it over the previous three years because it was too heavy, should be regarded, in effect, as window dressing for the purposes of the hearing and not as indicative that the plaintiff intended to make any real use of the Utah arm in the future. It may be the defendant’s submission is correct but it is unnecessary for me to decide as I do not consider the plaintiff will continue to use the prosthesis to any significant extent in the future both by reason of its weight and also by reason of the fact that it is of little practical use.

74 It may be that prostheses in the future will become easier to use and more lightweight than those available at the present time. Dr Esquenazi, who was responsible for the fitting of the Utah arm, in his report dated 1 October 2001 expressed the belief that in the next 10 years prosthetic devices “will have more complex multifunction capabilities, lighter materials and improved battery technology will be available”. Whether advances in technology will enable the plaintiff to have a worthwhile prosthesis in the future is uncertain.

75 I consider there is a real possibility that in time a prosthetic arm will become available which will be compatible with the plaintiff’s needs and that if such a prosthesis becomes available she will avail herself of it. It is impossible to say with certainty that such a device will become available or when.

76 The plaintiff uses a shoulder filler. It requires replacement at a cost of $1,350 every two years. This, in my opinion, is a reasonable expense.

77 I allow $200,000 for the replacement of the shoulder filler and for the possibility that in time a prosthetic arm will become available which is compatible with the plaintiff’s needs and which she will avail herself of, noting that when such a prosthesis becomes available it will subsume the need for the shoulder filler.

Future pharmaceuticals

78 The parties have agreed upon this head of damages in the sum of $13,742.

Future aids

79 The parties have agreed upon this head of damages in the sum of $13,742.

Recurrent equipment

80 The parties have agreed upon this head of damages in the sum of $19,600.

Care

81 The plaintiff’s claim is as follows.

30 June 1998 to 22 May 1999 – 38.5 hours per week at $18 per hour.
23 May 1999 to date - 16 hours per week at $18 per hour.
Future – 16 hours per week from the date of judgment to age 65 at the commercial rate of $30.
Thereafter 32 hours per week for the balance of the plaintiff’s statistical life expectancy at the commercial rate of $30.

82 The parties have agreed upon the rates of: $18 per week to the date of judgment for gratuitous care; thereafter $20 per week for future gratuitous care; and future commercial care at $30 per hour.

83 The plaintiff gave evidence that she needed assistance for four or five hours every second or third day.

84 The plaintiff had a high level of need following her discharge from hospital which need became less with the passage of time. I accept that the plaintiff, since January 2001, has been capable of self care and has been able to do most household duties. I accept that she cannot do vacuuming and sweeping and cannot lift heavy weights or safely climb ladders and that these deficits will be permanent.

85 As to the future, I accept that the plaintiff’s need for assistance will increase with advancing age though a need for some assistance would have arisen as she aged in any event.

86 The evidence from the occupational therapists suggests the plaintiff needs five hours care per week for washing, folding clothes, ironing clothes, sweeping, vacuuming, mopping, washing the car, cleaning the windows and cleaning the fans. She will also require some assistance with such matters as heavier gardening tasks, replacement of lights, cleaning of gutters and the like. Included in the occupational therapist’s prescription of 5 hours per week are matters which the plaintiff is capable of performing. The defendant accepts the plaintiff is entitled to full care for the initial period but submits thereafter the care should be at the rate of 5 hours per week. I agree with the defendant’s assessment, save that I would allow a higher rate up to 1 January 2001 and beyond age 65.

87 Care has been gratuitously provided to date. In my opinion, it is likely care will be provided commercially in the future.

88 I assess the claim for loss of care as follows:

38.5 hours per week from 16 July 1998 to 31 December 1998 - $16,632
8 hours per week from 1 January 1999 to 1 January 2001 at $18 per hour - $14,976
5 hours per week from 1 January 2001 to 6 October 2005 at $18 per hour - $22,320
5 hours per week from 6 October 2005 to the expiration of the plaintiff’s life expectancy at $30 per hour - $147,090
An additional 3 hours per week from age 65 to the expiration of her life expectancy at $30 per hour - $11,250
Total care allowance - $212,268

Property maintenance

89 The plaintiff has claimed $243,994 for the cost of expenditure on the property where she presently resides.

90 The submission made in support of the claim was that had the plaintiff already lived on that property at the time of injury it may well be reasonable for her to be permitted to maintain the property in the way that it has been maintained. She moved to the property not to increase the damages but to find a way of living which is maximally consistent with her general well being and with her psychological welfare for the rest of her life.

91 Senior counsel for the plaintiff quite properly informed the court “I am mindful of my obligation to the court and I am mindful of my instructions. I don’t think on present authority the claim sounds.” I agree. The claim is rejected.

Past out of pocket expenses

92 The parties have agreed upon this head of damages in the sum of $225,238.63.

Sullivan v Gordon

93 In Sullivan v Gordon (1999) 47 NSWLR 319 the Court of Appeal held that a person who has lost the capacity to care for a child or children is entitled to be compensated on the same basis as a traditional Griffiths v Kerkemeyer claim.

94 The principle in Sullivan v Gordon has been challenged in the High Court in CSR Ltd v Thompson. The High Court reserved judgment on 15 June 2005. The principles as laid down by the Court of Appeal bind this Court at the present time.

95 The plaintiff made a claim pursuant to the principle in Sullivan v Gordon on the basis that she will have two children. The parties agreed that if the plaintiff was to have two children she would be entitled to $126,000 damages under this head for the costs of care of the children necessitated by her accident caused disabilities.

96 The plaintiff has no children. The issue for me to assess is the possibility that she may have children. The plaintiff claims $100,000 for that possibility, the defendant submits the appropriate sum is $25,000.

97 The relevant evidence is:

(a) The plaintiff is aged 32;
(b) She gave evidence she “wouldn’t mind two or three children”;
(c) Professor Jones recorded in his report dated 17 May 2000 that the plaintiff said “she has also sought advice as to having a sterilisation as she believes that there is too much stress now for her to have children, although on specific interrogation she intimated that she had not wanted children prior to the accident”.
(d) She spent four days visiting a mother of a 16 month old baby. The mother had bilateral limb deficiencies due to thalidomide. The purpose of the visit was to observe the mother caring for the baby and to develop the plaintiff’s confidence in her one hand ability for baby care. The visit occurred when the plaintiff was in a relationship;
(e) The plaintiff informed Ms Davidson during the course of that relationship she would like to get married to that man and have a maximum of two children close together within that relationship. She does not intend to have children outside of marriage but if this relationship does not develop into a permanent relationship she doubts that she will ever have children and she believes it will indicate that her disability is too severe to enable her to form a permanent relationship with a man.
(f) That relationship subsequently failed.
(g) There was no evidence the plaintiff was in any current relationship.
(h) The only other relationship of which the plaintiff gave evidence was in respect of a young man she had met whilst employed at Bunnings in Western Australia. He had moved with her to New South Wales. They had lived together until the plaintiff sustained her injury whereupon he left.

98 It is of course impossible to predict with any certainty whether the plaintiff will have any children. However I must assess the possibilities. The absence of a current boyfriend, the comments by the plaintiff to Professor Jones, the precondition of marriage which at least was entertained by the plaintiff at an earlier time and the general pessimism recorded in her comments to Ms Davidson should the relationship she was then in fail lead me to assess the plaintiff’s prospects at 30%. Accordingly I award $37,800 being 30% of $126,000.

Home alterations

99 The parties have agreed upon this head of damages in the sum of $10,000.

Taxi expenses

100 This item was not pressed.

Holiday expenses

101 This item was not pressed.

Interim payment of damages

102 The plaintiff received an interim payment of damages pursuant to Supreme Court Act s 76E in the sum of $400,000. It is agreed such sum is deductible from the verdict.

Workers compensation payments

103 The plaintiff received workers compensation payments from the defendant. It is agreed those payments amount to $335,943 and are deductible from the verdict.

104 I summarise my assessment of damages as follows:

Non economic loss	$205,515.00
Past wage loss	$150,000.00
Loss of past superannuation	$15,135.00
Impairment of future earning capacity	$357,468.00
Loss of future superannuation	$41,719.00
Fox v Wood	$8,382.40
Future professional services	$50,000.00
Future prosthetics	$200,000.00
Future pharmaceuticals	$13,742.00
Future aids	$13,742.00
Recurrent equipment	$19,600.00
Care	$212,268.00
Property maintenance	NIL
Past out of pocket expenses	$225,238.63
Sullivan v Gordon	$37,800.00
Home alterations	$10,000.00
VERDICT	$1,560,610.03
Less interim payment	$400,000.00
TOTAL	$1,160,610.03
Less total Workers Compensation payments	$335,943.00
TOTAL	$824,667.03

Orders

105

(1) There will be judgment for the plaintiff in the sum of $824,667.03

(2) The defendant is to pay the plaintiff’s costs.
(3) Liberty to the parties to apply within 7 days on the question of costs.
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