Moorcroft, Kevin Edward v Speed, Troy
[1998] TASSC 91
•31 July 1998
91/1998
PARTIES: MOORCROFT, Kevin Edward
v
SPEED, Troy
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 968/1996
DELIVERED: 31 July 1998
HEARING DATE/S: 12, 13, 14 May 1998
JUDGMENT OF: Cox CJ
CATCHWORDS:
Damages - Particular awards of general damages - Tasmania - Trauma to spine suffered by 43 year old self-employed bricklayer with pre-existing degenerative spinal condition - Lost earning capacity - General damages - Interference with sexual function - Disruption of life style - Award including $50,000 for loss of amenities and $320,000 for loss of future earning capacity.
Aust Dig Damages [61]
REPRESENTATION:
Counsel:
Plaintiff: C H Hobbs, G F Abel
Defendant: P L Jackson
Solicitors:
Plaintiff: C H Hobbs
Defendant: Griffits & Jackson
Judgment category classification:
Court Computer Code:
Judgment ID Number: 91/1998
Number of pages: 10
Serial No 91/1998
File No 968/1996
KEVIN EDWARD MOORCROFT v TROY SPEED
REASONS FOR JUDGMENT COX CJ
31 July 1998
The plaintiff was injured in a motor vehicle accident on 6 May 1995, at which time he was 43 years of age. The defendant's vehicle ran into the back of the one he was driving, forcing it into another behind which he had stopped and extensive damage was done to all three cars. The plaintiff alighted, and on standing up, noticed that his back was sore. He telephoned for a tow truck and the police and when his car had been towed away, the police officer gave him a lift home. It was a Saturday and he stayed at home over the weekend, resting because his back felt sore. He was a self-employed bricklayer with a small workforce and on the following Monday he went to work to supervise his workmen, but then returned home. In that first week he continued periodically to attend the site where his men were working, but did not engage in work himself. He claimed that a week later, while in the kitchen, he turned around and felt a grabbing sensation in the back, causing him to fall to the floor. He said he lay on the floor in excruciating pain for three hours, unable to move. After three hours, he was able to crawl to a chair and to ease himself on to it. His father, who was living with him at the time but who was bedridden with terminal cancer, eventually heard his distress, came to investigate and summoned a taxi which took him to St Helen's Hospital.
The plaintiff remained at the hospital from 1.15pm to 6.30pm, when he went home by taxi at his own insistence. While at the hospital he received pain killing medication. An x-ray taken that day showed some mild degenerative changes in the lower lumbar spine with some anterior osteophyte formation at L4-5 and disc space narrowing at L5-S1. There was some sclerosis in the region of facet joints consistent with some osteo-arthritic changes at the site. The hospital records show that he acknowledged having had "past back pain some years ago". The following day he returned and was admitted as a patient under the care of Mr Bye, orthopaedic surgeon. He was ordered bed rest and was an inpatient from 16 May 1995 to 26 May 1995. On his discharge, the records show he complained that his back pain had not improved much since admission. Mr Bye was not called as a witness.
Doctor Cannon became his general practitioner after that period in hospital and saw him regularly thereafter. He, too, was not called as a witness. He referred the plaintiff to Dr Michael Jackson, an anaesthetist and pain specialist who first saw him on 5 July 1995. An MRI scan was organised which showed multi-level disc degeneration at L3-4, L4-5 and L5-S1, with a mild generalised bulge of the L5-S1 disc with a left para-central and lateral disc herniation at that level, combined with moderate facet joint hypertrophy. He concluded that the plaintiff's back pain was a consequence of his degenerative disc in the lower lumbar spine and carried out a lumbar epidural on 19 July 1995. It did not resolve the symptoms. On 14 August 1995 he carried out a left diagnostic L4-5, L5-S1 facet and nerve root block. Although the plaintiff's symptoms were relieved for a short time, they subsequently became reactivated. On 2 October 1995, a diagnostic discogram was carried out at the L3-4, L4-5 and L5-S1 levels, again confirming degenerative discs at the lower three intervertebral levels. Subsequently he suffered severe headaches and returned to hospital for some four - five days. The headaches lasted 5½ weeks. On 8 December 1995, a radiofrequency facet denervation was performed.
According to the plaintiff, the neurosurgeon, Mr Hunn, and orthopaedic surgeon, Mr Turner, neither of whom was called to give evidence, agreed that an operation to fuse the spine was inappropriate and dangerous. Eventually, on 30 October 1996, he underwent the insertion of a spinal column stimulator. He was hospitalised for about two weeks. The stimulator gave relief to symptoms in his buttocks and leg, but little relief to the low back. The following March he was readmitted for surgery to reposition a lead to cover the low back component of his pain. This stimulator is a fully internalised system with its own battery. By means of a magnet, the patient is able to turn the device on or off. The plaintiff claimed that he did not frequently use the stimulator and that it gave him only about 25 per cent relief from pain. Despite the procedures undertaken, no significant improvement has been achieved in the plaintiff's symptoms. He has not worked since the accident.
In addition to the initial "grabbing" of his back incident which preceded his first admission to hospital, the plaintiff has suffered three similar incidents. On 13 March 1996, while again in his kitchen, the plaintiff said he turned slightly to the left, his back "grabbed" again and he fell to the floor, fracturing his ankle. He said he was taken by ambulance to St Helen's Hospital where he had a plaster cast up to his knee and remained in hospital for approximately two weeks. The hospital records note that on examination there was swelling and tenderness over the lateral malleolus of the left ankle. X-rays showed no fracture, but a tiny ossicle at the tip of the lateral malleolus which did not appear to be as a result of recent injury. The treating doctor elected to treat the injury as a sprain and applied a back slab, after which he was to begin gentle weight-bearing with his ankle bandaged. Expected recovery was two - three weeks. He does not appear to have been admitted as an in-patient on this occasion.
On 11 June 1997, the plaintiff was attempting to clean up a bird dropping on a window on the upper floor of his house. He suspended a plank between the window sill and an adjacent laundry wall and walked on to the plank with a bucket of water. While suspended above a drop of some 14 feet, he said his back again "grabbed" and he fell to the concrete below, breaking his arm in two places, fracturing two vertebrae and splitting his head open. He crawled inside and telephoned a brother for help and was taken to hospital by ambulance. The dimensions of the oregon plank were 10 inches in width by 6 feet approximately in length. He said he had levered it on top of the wall to reach the window sill. On 8 March 1998, while at the Shoreline Hotel, he had another incident where his back "grabbed" and he fell to the floor in great pain. Once again he was taken by ambulance to hospital and admitted for three days.
The plaintiff, prior to the accident, led an active life. He grew up in Tasmania and attended the Clarence High School for four years, obtaining a School Certificate at the end of that time. After a short time in clerical work, which he said did not suit him, he obtained work in a spare parts business for eighteen months as a salesman and then became apprenticed as a carpenter to his father, who was a self-employed builder. In the eight years he worked for his father, he picked up the skills of a carpenter and bricklayer. He then commenced work on his own as a bricklayer. He spent about five years in Mainland Australia in the 1980's and returned to Tasmania in about 1988, after which he continued to engage in bricklaying work, mainly for his brother, who was also a builder. Prior to the accident, he was constantly in work and had a small group of men, varying from two to eight, working for him. He worked hard ¾ on most days for 9½ - 10 hours, and in summer even longer, working up until 9pm at times. He worked virtually every Saturday and occasionally on Sundays. In late 1989 he bought a block of land at Howrah and commenced building a garage and flat into which he moved after about two months and later, in 1990, commenced the building of a four - five bedroomed two storeyed house on the block. He engaged some tradesmen, but the bulk of the work was done by him at week-ends and after normal working hours. As a consequence, his earnings can be seen to have been significantly lower in the fourteen months it took him to build the house and garage/flat. He estimates a drop of $12,000 in gross income. He completed retaining walls, driveways and a barbecue area. The whole complex is attractive, requires minimal maintenance and is presently valued at $229,000.
He was a keen sportsman when younger but for some years prior to the accident confined himself to occasional horse riding and water-skiing, in addition to working out at a local gymnasium. He prided himself on his physique, attending the gymnasium three or four times a week of an evening, using heavy weights to strengthen and shape his upper body in particular. He was described by neighbours as extremely fit.
He is a divorcee, having separated from his wife prior to going to the Mainland in the 1980's and he has a daughter aged 20. After his divorce, he had a series of relationships with women which continued until the break-up of the last one in December 1997. At the time of the accident, the relationship he had involved sexual activity four to five times a week. His partner did not reside with him, but they stayed at each other's houses a couple of times each week. They parted a few months after the accident because, he said, of his inability to maintain an erection. After that break-up, he had a couple of partners, but only briefly; and sexual activities were the subject of problems. Towards the end of 1996, he commenced a relationship with a woman who lived in Launceston. This lasted for twelve months. At times he would travel to Launceston for a few days and she would likewise come to his home at Howrah. He said he was unable to maintain an erection during intercourse because his back ached and distracted him. In comparison with his pre-accident condition, this has led to a reduction in the frequency and quality of his sexual activities. It also led, in turn, he said, to the break-up of that relationship. On one occasion he sought assistance from a clinic advertising that it could help with problems of this nature, but the treatment, by way of injection, proved to be embarrassingly unsuccessful. He is very reticent about the subject and has not discussed it with Dr Cannon on any of his frequent visits.
Since the accident, the plaintiff has not worked, nor has he sought work. He was due to attend a computer training course in June 1997 recommended by a rehabilitation counsellor, but his fall off the plank caused him not to attend it. Very little evidence was tendered as to the nature of the plaintiff's injuries or of their effect upon him. He complains of pain in the back and also in his left leg. The spinal stimulator causes a "pins and needles" sensation when in use, but has been effective in reducing the leg pain. The greatest relief he gets is when lying down. He makes relatively little use of the stimulator, not using it at all on some days and on others using it only for two to three hours.
He says his lower back aches most of the time. In terms of severity, he says his pain is about 1 - 2 out of 10 when lying down, and when he is walking it is usually about 6 - 6½. It is a constant pain and he sleeps poorly because it hurts when he turns. If he over-exerts himself, he may be forced to lie down for a couple of days to get relief and he suffers jabs of pain similar to the severe pains when his back "grabbed" and he fell, when he sneezes or steps down from a height unexpectedly. The leg pain goes from the buttocks to his left knee, but, as I have said, he has had considerable relief from the stimulator, so that now he describes the symptoms as "light" in his leg. He says his lower back is very stiff in the morning when he wakes up, but he does get relief in the shower. He says he cannot sit straight in a chair because that aggravates his back and although he still drives, he cannot undertake long journeys without several breaks and he has to adjust the seat so that he is almost lying on it. It is painful to use a vacuum cleaner because of the need to press down on the carpet and he employs a gardener to mow his lawns and to prune trees and shrubs. He spends a lot of his day lying down at home, reading.
His principal activity is attending the gymnasium of which he was a member for some years prior to the accident. He attends remarkably frequently. He resumed attending there about two months after the accident, mainly to use the pool, but he graduated to using weights, a treadmill and an exercise bike. Most of the weight-lifting is done while he lies on a bench press, thereby avoiding strain on his lower back. He attends the gymnasium five days a week and spends two to three hours there each time. Although encouraged by his medical advisers to walk as a means of exercise, he rarely does this.
In a self-assessment form which he filled in on 21 May 1997 for the purposes of a Functional Capacity Evaluation by the manager of a rehabilitation company, the plaintiff was asked to indicate the level of his pain and of some of his disabilities. In respect of his capacity to lift, he nominated the worst option offered, namely, "I cannot lift or carry anything at all". In respect of social life, he nominated the second worst option, namely, "Pain has restricted my social life to my home"; while in respect of travelling he selected, "Pain restricts me to short necessary journeys under 30 minutes". In view of his activities at the gymnasium at about this time and of his attempt to clean the second floor window by standing on an oregon plank which he must have procured from somewhere and manoeuvred into position from the boundary wall to the window on the occasion when he fell on 11 June 1997 only about a fortnight later, his first answer about lifting is far from accurate. He admitted to some social activities with partners, although he denied he could dance; and this, too, suggests a lack of frankness in his response to the question about social life; while his trips to Launceston, where he drove himself, albeit with a number of stops, is inconsistent with his answer about travelling.
A surveillance film recorded in about January 1997 was shown at the hearing. It shows the plaintiff in singlet and shorts moving at a normal pace along a footpath near a shopping centre a short distance to his car, the driving seat of which he enters without apparent difficulty or discomfort before driving off. I accept that there are indications that he walks with a slight limp, but apart from that, there is nothing to indicate anything other than robust good health on the plaintiff's part. Of course, most people with any form of injuries have good days and bad days and he may well have suffered worse days than the film indicates, but I have little doubt that the plaintiff has a tendency to exaggerate his disabilities.
I also find some aspects of his evidence unreliable. In his account of the first incident when his back "grabbed", he said he fell to the floor and lay there for three hours before his father summoned help. The hospital records of that occasion show the following history:
"43 year old male involved in MVA 6.5.95 - driver of panel van stationary - hit from behind - pain in lower back at time - good mobility - off work for 2 weeks - return to work but back worsened - especially over week-end - today unable to get out of bed due to back pain."
The only medication the plaintiff presently uses is Panadeine Forte, which he consumes at the rate of about four tablets per week at the most. He does not intend to undergo any further epidural blocks or similar procedures and has no present intention of replacing the spinal stimulator. Other forms of stimulator with external components are available, but the plaintiff does not wish to have one of them inserted. He believes that a new, fully internalised, stimulator may be available within a year or two. Doctor Jackson's evidence indicates that other versions of the stimulator may be under development, but he gave no evidence as to when they would be available; nor is it clear whether, if available, they would be acceptable to, or appropriate for, the plaintiff. It is likely the plaintiff will continue to use the stimulator intermittently, but I think the chances of his replacing it are remote. He may have it removed in the future. Doctor Jackson was unable to suggest any other form of treatment for him.
I find that the plaintiff did suffer injury to his lower back as the result of the car accident and that this exacerbated and made symptomatic the pre-existing degenerative condition of his spine. The evidence does not enable me to conclude that this condition would have overtaken the plaintiff by now, or by any given point in time in the future; but clearly it will represent a significant contingency when considering an appropriate award for lost earning capacity. The extent of his disablement is not clear-cut. The vigour with which he pursues his activities at the gymnasium and his general musculature strongly suggest a capacity to undertake a number of physical activities so long as strain to the lower back is avoided. Since the accident, he has been receiving an allowance for housekeeping assistance at the rate of 80 per cent of the sum paid by him. The assistance was given by certain members of his family, who were rewarded by way of the free use of the flat built on his block and in which he had lived while building the main house. 80 per cent of the foregone rent amounted to $60 per week and was paid to him by the Motor Accidents Insurance Board. Those sums are no longer paid and the plaintiff's mother now provides him with some housekeeping help gratuitously. She also supplies several pre-cooked meals for him each week. There is no physical reason why he needs assistance with cooking. I am satisfied also that he requires very little assistance with general housekeeping either. While he may find difficulty coping with a large pile of ironing in one session, there is no reason why that cannot be spread over several sessions, thereby minimising any strain. The vacuum cleaning requirement is also substantially exaggerated, in my view. He installed a fully ducted system when he built the house and I am unpersuaded that the pressure applied to the floor coverings is sufficient to cause any significant discomfort. He presently has a gardener who mows his lawn and attends periodically to pruning and other similar jobs. The lawn is relatively small and although not level, does not, from photographs tendered, appear to present a demanding task to mow. No doubt there are some days when he may not feel up to gardening, but these tasks are not beyond his capacity if tackled sensibly and progressively. A high proportion of the block is covered by buildings and paved areas.
I accept the evidence that the plaintiff is not capable of resuming work as a bricklayer. This is heavy work and the degenerative condition of his spine is a legacy of the long hours he has put into such work. Rehabilitation counsellors have also expressed the opinion that he has little, if any, residual work capacity, even in a part-time sedentary job from which he could gain periodic relief by moving from his work station from time to time. While to some extent their opinions may be based on his exaggerated accounts of his disabilities and pain, I find that they are realistic assessments. He is now nearly 47 years old. His limitations prevent prolonged physical work; he does not have a suitable personality for sales work; and his educational qualifications and his experience generally do not equip him for clerical work. Protracted travelling would be beyond him. Some suggestions were made that he might engage in speculative building, supervising a workforce to do the actual work; that he should qualify himself as a quantity surveyor; that he engage in real estate salesmanship and advisory work in respect of buildings. He has some potential in respect of these avocations, but having regard to the present economic climate and opportunities within the work force and the fact that his disabilities would prevent him from devoting himself full time to any of them, I think that for all practical purposes he is unemployable.
I also find that his capacity to engage in and enjoy sexual activity has been reduced as the result of the injuries occasioned by the accident. He has sustained a severe disruption to his lifestyle by being deprived of the enjoyment he had in a busy and rewarding life. He has suffered a diminution in the social and sexual aspects of his life. He suffers regular discomfort and occasional outbursts of very severe pain. His sleep pattern has been affected and although there are activities such as housework, gardening and some house maintenance which he could perform, he may have to husband his resources and engage in these activities piecemeal which may be unrewarding, inconvenient and take longer than normal to achieve. He continues to be able to engage in physical exercise at the gymnasium, but this represents his only sporting outlet. His condition has plateaued and no significant variation is likely. For his pain and suffering and loss of the amenities of life, I award $50,000.
Future Lost Earning Capacity
In the five years prior to 30 June 1995, a date approximately two months after his accident, the plaintiff's nett annual income was as follows:
"1990/91 Taxable Income $46,454.00 LESS Tax $14,085.86 Medicare Levy $580.67 $14,666.00
$31,788.001991/92 Taxable Income $35.284.00 LESS Tax $8,601.92 Medicare Levy $441.05 $9,042.00
$26,242.001992/93 Taxable Income $45,753.00 LESS Tax $13,360.38 Medicare Levy $571.91 $13,932.00
$31,821.001993/94 Taxable Income $45,535.00 LESS Tax $12,586.32 Medicare Levy $637.49 $13,223.00
$32,312.001994/95 Taxable Income $67,954.00 LESS Tax $22,540.38 Medicare Levy $951.35 $23,491.00
$44,463.00"
The grand total of his nett earnings in that five year period (which includes a disability allowance for the two months after his accident roughly equivalent to his then current income) amounted to $166,626. The respondent submits that the average earnings over this five year period, taking into account both the good years and the bad years, fairly represents the plaintiff's potential earning capacity as at the date of his injury. Counsel for the plaintiff argues that to each year's income there should be applied a Consumer Price Index calculation before striking any average. Although that index shows movements in the cost of goods and services, I think it is speculative to assume that the work undertaken in an earlier year would have yielded a proportionately increased sum if undertaken in a subsequent year. I propose, therefore, to assess the value of his earning capacity as at the time of the injury by reference to his average earnings over five years without applying an adjustment for the Consumer Price Index. However, the above figures do not take into account the investment of his own labour in the construction of his house and I think, in fairness, its value should be added into the equation. I accept his estimate of $12,000 gross as income foregone over the fourteen month period he was building his home and applying the appropriate rate of tax, add a net figure of $8,000 to his nett earnings for the year ending 30 June 1992. This increases the total nett earnings over five years to $174,626, which gives a yearly average of $34,925, or $671.63 per week. In the three years since the accident to the time of trial, the evidence suggests increases in bricklayer's earnings of $400 per 1,000 bricks laid to a present figure of $460 for regular sub-contractors. Although it does not follow that an increase of 15 per cent in the gross rate of remuneration would have necessarily resulted in the plaintiff achieving the same proportionate increase in his gross personal income, I shall increase the weekly figure to $700 to allow for the likely augmentation of his nett income had he still been able to work as before in the calculation of future losses of income.
Counsel for the plaintiff urged me to make an allowance as part of his lost earning capacity for the loss of the opportunity to make tax free capital gains by building further houses and reselling them at a profit which would not attract tax. The plaintiff built his own house some seven years ago when he was about 40 years old. It was the first time he had done so and I accept in substance the calculations made by his counsel which demonstrated that if the property were sold now at the uncontested valuation of $229,000, the plaintiff could achieve a non-taxable capital gain of about $37,000. He claims that as it was his intention to built one or two further homes over a period of approximately ten years, utilising his own labour, he could have expected similar tax free profits, the present value of which is approximately $45,000. I am unpersuaded that the plaintiff ever really applied his mind to such an exercise prior to the accident, or that had he done so, he would have undertaken the exercise once more, let alone twice more. The building of his present home was a long project, the profit margin was modest and although certain Determinations published by the Australian Taxation Office were put in evidence and suggest the likelihood that he would have gained exemption from capital gains tax on such endeavours, there is no certainty that this will remain the case indefinitely. But for the accident (and subject to the contingencies to be mentioned later), the plaintiff had ample work available as sub-contractor to his brother, Neil, and to other builders and I cannot regard the prospect that he would embark on similar speculative building with a view to tax free capital gains as one which can be quantified with any degree of precision. It is a remote possibility which should be added into the scales when adjusting for contingencies.
Another factor to be taken into account is the effect of superannuation. The plaintiff, as a self-employed bricklayer, had taken out an assurance policy in July 1991 to mature when he attained the age of 60. Although required to contribute an annual premium of $3,374, he had the right to contribute more, and in fact did so, thereby gaining a taxation advantage in that he was able to deduct not only the first $3,000 of his annual premium, but also 75 per cent of any contribution in excess of that sum. His annual contributions over the four years to 30 June 1995 averaged $4,786, $4,333 of which was free of tax at the rate of 34 per cent. The balance of $453 was taxable at that rate.
A superannuation actuary was called and agreed that if the plaintiff continues to contribute to the fund to the same extent as he did prior to his accident until the nominated retirement date, he will incur no loss. If, therefore, he is provided (subject to contingencies) with the present value of funds equivalent to the nett cost of these contributions so as to be able to meet them, he will be in no worse position than if he had not been injured by the accident. The contribution of $4,333, which was tax free, effectively cost him 66 per cent of that sum, or $2,860, which, when added to the non-tax free balance of $453, meant that his total superannuation contributions cost him $3,313 per year, or $63.71 per week. I accept the submission of counsel for the defendant that the amount required to properly compensate the plaintiff for the loss of his ability to continue to make his superannuation contributions is $63.71, which can be added to his current nett average earnings, had he not sustained the accident, before being subjected to the same discounts for the contingencies to be applied to his ability to continue generating weekly income.
The plaintiff gave evidence that he anticipated continuing to work at the same level until the age of 65 years or beyond. His selection of a retirement date at age 60 for the purposes of his superannuation arrangements had, he said, been coincidental; but he agreed, in cross-examination, that bricklaying was hard work and that few tradesmen with that skill continued to engage in it beyond the age of 60. Not only is it hard work, but in the plaintiff's case it was not conducive to the well-being of his spine. At the time of the accident, there were signs of significant deterioration in it and although it was said to be asymptomatic and had not prevented him from undertaking a heavy workload, there were indications, such as the entry in the St Helen's Hospital records, that in the past he had suffered from back pain. In these circumstances he was vulnerable to disablement from the natural progression of the degenerative condition of his spine. In the cross-examination of Dr Jackson, this exchange occurred:
"QIs it fair to say that in his occupation handling I think something in the order of 1,000 or more bricks a day and blocks and all sorts of things that he was pretty much an accident waiting to happen with that pathology?
AWell I mean what you could say is certainly - I mean he probably would represent the eggshell skull of backs dispute.
QHe was very much at risk?
AWell he had a much higher risk - a much higher probability of something happening at some time."
For the reasons I have advanced above, I consider that the plaintiff has very little residual capacity to gain income and is, for all practical purposes, unemployable. I think it unlikely that he would, in any event, continue to work full time beyond the age of 60 when his superannuation policy would have matured, but had he not been disabled by the accident, he may have continued some form of part time work to supplement his savings. That contingency and the possibility of further speculative home building with possible capital gains tax savings are to be weighed, having regard to the condition of his back and the likelihood that it would have caused or contributed to a decision to retire early. As a starting point before allowing for other contingencies such as death or injuries other than those to which his spinal condition makes him vulnerable, a drop in the availability of work and the like, I think it appropriate to use a multiplier based on a retirement from the workforce at age 60. He is now 46½ years old and I will therefore calculate his future losses with a multiplier of 13.5. Adding back the value of his superannuation contributions of $63.71 to my estimate of $700 for his present nett weekly earning capacity had he not been injured and multiplying it by 459.5 using the 7 per cent Tables, produces a figure of $350,598. To this figure I would apply a modest reduction for other contingencies of 8 per cent to 10 per cent giving a nett figure which I will round off at $320,000 for future lost earning capacity.
Lost Earnings to Date
For the reasons I have given above, I consider that the probabilities are that between the date of the accident and 30 June 1996, the plaintiff, by virtue of the accident, has lost nett weekly earnings of approximately $671.63. In addition, he was earning sufficient funds to enable him to make superannuation contributions at a nett cost to him of $63.71 per week. For the 59 weeks of that period, I award $43,385. I have said that by now, having regard to the increases in rates of pay for the laying of bricks, he would probably be earning about $700 per week, exclusive of the cost of his superannuation contributions. I shall assume an increase of $10 per week from 1 July 1996 and a further increase of the same amount from 1 July 1997 before the weekly figure of $700 was attained as from 1 July 1998. On this basis, I award, for the period 1 July 1996 to 30 June 1997, the sum of $38,757 which is represented by the calculation ($671.63 + $10 +$63.71) multiplied by 52. For the following twelve months, I add the further sum of $10 per week and award $39,277. For the four weeks since 1 July 1998, I award $3,054. The plaintiff's lost earnings, with allowance made for superannuation, from the accident to date are $124,473 from which must be deducted the disability allowance paid by the Motor Accidents Insurance Board amounting to $101,132, being the nett sum received by the plaintiff after the deduction of tax thereon. As the plaintiff, although obliged to repay to the Board the full amount of the disability allowance, is entitled to recover from the Board, as the defendant's statutory insurer, damages representing the additional loss occasioned by having to repay the gross amount of the allowance when he had the benefit of only the nett amount after tax (Fox v Wood (1981) 148 CLR 438), a deduction of the nett figure rather than the gross will achieve essentially the same result. The tax complications arising from the plaintiff's superannuation contributions have already been taken into account using a broad brush approach.
Future Medical Expenses
A sum of $2,025 is claimed for future attendances on Dr Cannon, the plaintiff's general practitioner. The need for approximately five annual attendances for treatment for the plaintiff's injuries on which the claim has been postulated has not been established. A more modest sum is appropriate. I will allow $1,000.
The need for specialist attendances by Dr Jackson has, likewise, not been established. The claim was calculated on a need for general review every three to six months, but the evidence does not support this. No allowance is justified for any regular attendances.
A claim was made for the replacement and renewal of the spinal stimulator. Given the lack of reliance placed on it by the plaintiff and the absence of any developed fully internalised system for which the plaintiff expresses some enthusiasm, I find that the prospects of the plaintiff replacing his present system and renewing it periodically are relatively remote. He may altogether abandon it and if this proves to be the case, he would be well advised to have the old system removed. An allowance should be made for this contingency and for the possibility that a sophisticated version, suitable for and acceptable to the plaintiff, may be developed and installed. The figures are so imprecise that nothing but a broad brush approach can be adopted. I allow $4,000 to cover the cost of future interventions in respect of his stimulator.
A claim for batteries for the present system was quantified at $1,359, assuming a requirement to expend $2 per week to operate it. I consider the current and likely future use of batteries far less than as claimed and will allow $500.
A claim is also made for psychological care in the sum of $1,000. There is no evidence of a real need for such care and no allowance will be made.
The same comment can be made of claims for future physiotherapy and diagnostic investigations. A separate allowance in respect of future medical expenses greater than $5,500 cannot be justified. I shall allow that sum.
Future Gymnasium Expenses
Exercise at the gymnasium has been recommended by the plaintiff's medical advisers and it is clearly desirable as both physically and mentally therapeutic. However, for a substantial time prior to his accident, the plaintiff was a member of the gymnasium he now patronises and regularly used it for recreational purposes. The accident has not increased his use or need of it. I do not consider any separate allowance is justified under this head.
Future Travelling Expenses
A modest allowance for occasional visits to medical advisers is warranted. Nothing should be allowed for the plaintiff's travel to the gymnasium. I shall allow $2,000.
Future Medication Expenses
A claim was made for the future cost of Panadeine Forte over a period of 31.5 years at $180 per annum. The plaintiff's consumption of medication is minimal and a sum of $500 should be sufficient to cover this expense.
Past and Future Domestic Expenses
The Motor Accidents Insurance Board paid a sum calculated to be 80 per cent of the plaintiff's expenditure in respect of past domestic and gardening expenses. In my view, the need for such services has not been established. There is no justification for awarding the balance of 20 per cent of those expenses in respect of the past, nor for any award in respect of the future.
Future Home Maintenance Expenses
The plaintiff's home will require on-going maintenance, both internally and externally. But for his disabilities, he would have undertaken them himself. He should be compensated for what he can no longer undertake himself. I find that he has the capacity to undertake the bulk of any internal maintenance such as painting, but may have difficulty in painting the exterior and in cleaning his spouting. I will allow the sum of $2,000 for external painting and $3,000 to cover the cost of cleaning gutters, flues and windows, some of which may be beyond the plaintiff's capacity to reach and clean adequately.
Miscellaneous
A sum of $305.90 is claimed as an amount owing to the Health Insurance Commission in respect of his injuries. I do not understand this to be the subject of challenge.
The plaintiff will accordingly have judgment against the defendant for $406,646.90, made up as follows:
Damages for pain and suffering $50,000.00 Lost future earning capacity 320,000.00 Lost earnings to date 124,473.00 Future medical expenses 5,500.00 Future travelling expenses 2,000.00 Future medication expenses 500.00 Future home maintenance expenses 5,000.00 Miscellaneous 305.90 $507,778.90 Less amount refundable to MAIB 101,132.00 TOTAL $406,646.90 I will give leave to speak to the minutes before pronouncing a final judgment.
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