Moore v Kelly
[2006] QSC 30
•2 March 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Moore v Kelly & Anor [2006] QSC 030
PARTIES:
PHILLIP JOHN MOORE
(plaintiff)
v
MATTHEW BARRY KELLY
(first defendant)
and
SUNCORP METWAY INSURANCE LIMITED
(ACN 075 695 966)
(second defendant)FILE NO:
1771 of 2002
DIVISION:
Trial
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
2 March 2006
DELIVERED AT:
Brisbane
HEARING DATE:
22-24 February 2006
JUDGE:
Chesterman J
ORDER:
Judgment for the plaintiff against the second defendant for the sum of $234,784.17.
CATCHWORDS:
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – assessment of damages
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – Loss of earnings and earning capacity – Particular cases – where plaintiff injured in motor vehicle accident and had not been employed for eight years prior to accident – whether the plaintiff would have returned to employment
Graham v Baker (1961) 106 CLR 340, cited
Husher v Husher (1999) 197 CLR 138, cited
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, appliedCOUNSEL:
Mr C Newton with Mr M Alexander for the plaintiff
Mr S C Williams QC with Mr D J Murphy for the defendantsSOLICITORS:
Carter Capner for the plaintiff
Jensen McConaghy for the defendants
The plaintiff was injured on 25 May 2000 when he was driving home. A car driven by the first defendant in the reciprocal direction overtook a truck and collided with the plaintiff’s vehicle. The defendants have admitted liability for the plaintiff’s injury, which was serious.
He suffered a compound comminuted fracture of the right tibia and fibula adjacent to the ankle joint. He was transported by ambulance to the Redlands Hospital and then taken for immediate surgery to the Princess Alexandra Hospital. The fractures were treated by the application of an external fixation device, or fixator, and he remained in hospital until 31 May 2000. He was readmitted a day later, on
1 June 2000, because of an infection which had developed where the pin was inserted into the bone. The plaintiff remained in hospital for five days during which he was treated with intravenous antibiotics. After his second discharge Mr Moore attended the outpatients’ clinic of the hospital on 7 June, 5 July and 2 August 2000 for review. On 9 August he was readmitted so that the external fixator could be removed under general anaesthetic and a patella tendon bearing cast was applied.
The plaintiff’s convalescence remained troublesome. On 6 September he was readmitted to hospital suffering a pulmonary embolus as a consequence of the earlier orthopaedic surgery. He remained in hospital until 12 September. He remained on medication until March 2001.
On 30 May 2001 the bearing cast was removed and a metal plate was inserted to stabilise the lower leg fractures. Following the insertion of the plate another cast was applied which the plaintiff wore until 1 October 2001.
When examined by Dr Nave, orthopaedic surgeon, at the request of the second defendant, on 7 January 2002, the plaintiff walked with the aid of a stick and put little weight on his right leg. He could walk unaided for a short distance but could not walk ‘heel to toe’, nor squat. His right leg was 5/8ths of an inch shorter than the left and the muscles of his right leg were wasted.
The plaintiff underwent further surgery which was performed by Dr Neilson, orthopaedic surgeon, on 11 February 2004. The metal plate was taken from the plaintiff’s right tibia and a bony growth removed. A bone graft was applied to fill the screw holes. He was in hospital overnight.
Dr Neilson reported on 12 May 2004 that the removal of the plate had improved the function of the leg but the plaintiff continued to suffer ‘ongoing pain’ in the right ankle joint which had a significant loss of range of motion. Dr Neilson thought that the plaintiff would require a triple arthrodesis to fuse the ankle, subtalar and midtarsal joints to reduce the plaintiff’s pain. He would, of course, be left with a completely stiff ankle and foot and ‘some chronic pain as a consequence of the bony and soft tissue injury’.
Dr Nave most recently examined the plaintiff on 3 February 2006 when he noted that the plaintiff walked with a stick and a limp. He could not stand unsupported on his right leg and could not squat. Surgical scars were present on the plaintiff’s right lower leg. There was muscle wasting as before. Dr Nave estimated that the right leg was two centimetres shorter than the left. The ankle was tender. There was a marked limitation in the range of joint movement. Dr Nave thought that the plaintiff had lost 30 per cent of the use of his right leg. I accept the assessment which was not in controversy.
The plaintiff’s complaints of restricted mobility and pain are appropriately dealt with in the assessment of his claim for the cost of domestic assistance and care. The parties are, anyway, in broad agreement as to the assessment of general damages, for pain and suffering.
A claim is also made for a psychiatric injury overlying the plaintiff’s bad leg. The nature and extent of this injury are in dispute. Before dealing with it, it is convenient to say something of the plaintiff’s background and occupation for they impinge on this part of the claim.
The plaintiff was born in England on 28 November 1948. He attended school until the age of 16 when he became apprenticed to a plumber. He duly qualified as a plumber and drainer and worked in that trade until 1977 when he emigrated to Australia. He worked here as a plumber and established his own substantial business, P J Moore Plumbing and Draining Pty Ltd, which secured substantial contracts to large construction projects. Unhappily his business failed when a national building company went into liquidation, owing his company about $1,500,000. The plaintiff’s business could not cope with such a large loss and his companies were wound up in about 1992.
The plaintiff was understandably shaken by these events which blasted his hopes of financial security and undermined his prosperity. He did not return to plumbing but looked instead to recover his fortunes from property development. He borrowed some capital from a brother who had remained in England and ventured into business. Unhappily he chose as his adviser and partner one Robert Lockhart, a solicitor, who proved to be incompetent and dishonest. There were developments but they were very badly handled and the plaintiff appears to have lost his borrowed capital. He was paid about $206,000 by Lockhart between about December 1997 and November 1998. Lockhart appears to have told the plaintiff that the moneys were the fruits of action brought on his behalf against those who owed money in respect of the development of Mr Moore’s previous business activities. In fact Lockhart stole the moneys from his employer. (See p 64-69 of exhibit 1). The plaintiff had importuned Lockhart to pursue his claims against debtors and to proceed with the developments. One would assume that it was to deflect the plaintiff’s complaints that Lockhart paid the stolen moneys to him.
In June 1999 Lockhart told the plaintiff plainly that he could hope nothing more from the developments or litigation. The plaintiff was, again, deeply troubled by this second blow to his fortunes. He did not return to work as a plumber. He did not look for other work. Instead, on 11 August 1999, he applied to Centrelink for a Newstart allowance and has been a recipient of social security payments ever since.
With these facts in mind it is convenient to return to the claim for damages for psychiatric injury.
Mr Moore was seen by Ms Trudy Leivesley, clinical psychologist, in June 2001 and January 2006. In her first report Ms Leivesley recorded what the plaintiff had said of his ‘pre-accident stressors’. They were that his business had been wound up but ‘this was a stress with which he coped. He … always coped with business stressors as they were situations in which he felt he had either some control or options. … When his business “went” he felt “a little bit down”.’ The plaintiff’s account in evidence of his reaction to the loss of his businesses, and his wife’s account of the same experience, would suggest that he understated the effect of his reaction when speaking to Ms Leivesley. It is significant that he did not mention the second, and equally severe, business reversal.
As a result of her examination Ms Leivesley thought that the plaintiff exhibited depressive symptomology which made it difficult for him to cope with his physical restrictions and pain, made him irritable, and imposed a strain on his family relationships. She noticed he was anxious when driving or being driven. The diagnosis was of a major depressive episode.
The plaintiff was also examined by Dr Persley, psychiatrist, on 13 March 2002 and 9 February 2006. According to Dr Persley the plaintiff ‘recalls the (accident) whenever he drives along Tully Road. At these times he re-experiences the sensations associated with being trapped in the vehicle … He feels helpless. This is associated with distress. He now avoids driving a vehicle himself. … He has become over-cautious. When the driver of a vehicle he often becomes tight in the chest.’ Dr Persley’s only reference to the plaintiff’s earlier disappointments was that he said that ‘Apart from plumbing he unsuccessfully attempted land development’ and that he managed ‘the usual everyday life stresses quite well. … He coped when his land development company went into liquidation.’ There is no mention of the failure of his plumbing business but there is an understatement of his reaction to his business failures. Dr Persley diagnosed an adjustment disorder with depressed mood which was due to the motor vehicle accident. He thought that there were no other stressors.
Dr Redden, psychiatrist, examined the plaintiff at the request of the defendants’ solicitors on 17 September 2002. Relevantly the plaintiff told Dr Redden that he had owned and run his own business for about ten years but that it ‘went under and his company was liquidated.’ There was no mention of the second setback.
Dr Redden thought that the plaintiff was reluctant ‘to provide detail about his history’. She noted that he was not depressed and that he displayed a sense of humour which is, as Dr Redden pointed out in evidence, incompatible with depression. In fact, in the course of the examination, the plaintiff ‘denied being pervasively depressed. He stated that when he feels upset he can telephone a good mate and he feels better after they have a few drinks or go out …’. He told
Dr Redden, too, that he dislikes driving and feels nervous in a car, particularly in heavy traffic. Dr Redden thought that the plaintiff had undergone some emotional changes which were in nature and degree understandable given the plaintiff’s personality and leg injury but that he had also developed a specific phobia the focus of which was motor vehicle travel. It was mild in degree and not readily amenable to treatment.
I am not satisfied that the plaintiff suffers either an adjustment disorder with depressed mood, or a major depressive episode. Those respective diagnoses were predicated upon the plaintiff’s account of his psychological state and his history of stress, or as he would have it, lack of stress. He was not candid in the account of his past to either Ms Lievesley or Dr Persley. It is, I think, significant that he saw those specialists for the purpose of advancing his claim for damages. When examined by Dr Redden he denied feelings of depression and exhibited a behavioural trait inconsistent with it.
It is apparent that in recent years the plaintiff has commenced drinking a little more than the doctors think is sensible. Dr Redden made the point that an excessive consumption of alcohol can give rise to depression. The plaintiff was not drinking excessively when Dr Redden examined him and his more recent manifestations of depression observed by Dr Persley and Ms Lievesley may be explicable on that basis.
It does not matter much in the end. The plaintiff did not in evidence claim to be greatly depressed and disclaimed any interest in undergoing psychological treatment for that ailment. I would accept that he feels frustrated and impatient with his disability and that he is at times irritable and feels depressed. I accept he has a phobia about car travel.
The two components of damages most in controversy were the claims for economic loss and for Griffiths v Kirkemeyer care.
The plaintiff has not been gainfully employed since the collapse of his business in about 1992. Nevertheless his case was that a few days before his injury he had secured employment as a plumbing supervisor with a plumbing contractor,
Etter and Green Plumbing and Drainage Pty Ltd (‘Etter and Green’) and was to have commenced work on the Monday following his accident, 29 May 2000. He was, of course, unable to take up the offered position and has not worked since. His claim is calculated by reference to what he would have earned as a plumbing supervisor until he retired, at either age 60 or 65. A variant claim is made on the basis that the plaintiff would, after about two years as a supervisor, have
re-established his own contracting business and conducted that until he was 60, or 65. The amounts which he could have expected to earn in either pursuit have been estimated by Mr Thompson, a forensic accountant.
The defendants dispute the claim and argue strenuously that the plaintiff had no intention of returning to the workforce and that the evidence of an immediate intention to take up work as a plumbing supervisor, and the evidence in support of it, are fabricated.
Before dealing with this contest I indicate that I am satisfied that the plaintiff has no residual earning capacity of any value. He was 51 at the time of the accident. He is a plumber and drainer by trade and has no other qualifications. His education was sufficient for his trade but was not advanced. I would accept that he was a competent tradesman but I suspect his business skills were limited. The conclusion is suggested by his two failures. He has no qualification or experience in administration. While he has, theoretically, a capacity to engage in sedentary or semi-sedentary tasks there is no evidence of any occupation which the plaintiff could follow in his disabled state, or the value of any such employment. I accept that he is unable to work as a plumber. That was Dr Nave’s opinion and I concur in it, having observed the plaintiff who was photographed undertaking a range of activities when he did not know he was being watched. His mobility is limited, he is not agile and I accept that he is, on occasions, distracted by pain. He could not work on a construction site.
Between October 1994 and 25 May 2000 the plaintiff did not work for remuneration. There is no evidence that, during that period, he made any attempt to obtain work as a plumber, plumbing foreman, or plumbing supervisor. He was a director of a company, Denblaze Pty Ltd which appears to have been engaged in the unsuccessful property development. There is no evidence that the plaintiff received any income from his directorship. He submitted no tax returns for the decade
1990 – 2000. The plaintiff appears to have spent his time working on a 70 foot motor launch which he owned, and, until June 1999, in making inquiries of Lockhart and others about the property developments.
The plaintiff’s case, that he was about to commence work as a plumbing supervisor at the time of the accident has as its evidentiary basis a letter from his putative employer, Mr Etter, of 23 May 2000. It was written on the letterhead of
Etter and Green and was addressed to the plaintiff. It read:
‘RE: POSITION OF SUPERVISOR
Further to our interview dated 15 May 2000 we are pleased to confirm your employment with this Company in the position of Supervisor.
Your duties would be to liaise with building sites, site foremen and project managers to maintain the smooth-running of intermediate management.
Renumeration (sic), as discussed, will be:
1 Salary of $850 per week
2 Late model ute provided
3 Fuel card provided
4 Mobile phone provided
5 Gateway Card provided
6 BUSS and BERT as per plumbers E.B.A. Agreement
You are to commence your duties at 7.00 am on Monday 29 May 2000 at the above office.
We take this opportunity to welcome you to our Company and look forward to a mutually beneficial working relationship.’
The plaintiff was injured on Thursday, 25 May. Mrs Moore says she rang Mr Etter the next day, Friday 26 May. He duly wrote to the plaintiff by a letter dated
29 May:
‘Dear Phillip
RE: POSITION OF SUPERVISOR
Thank you for your telephone call of Friday 26 May 2000. We were sorry to hear of your unfortunate motor vehicle accident.
As discussed we regret that we cannot hold the above position open for you.
We sent you our best wishes for a speedy recovery.
Yours sincerely’
On their face the letters are convincing evidence that the plaintiff had secured employment at a substantial weekly wage and was deprived of that employment and income by reason only of the collision for which the defendants admit liability. The defendants dispute the authenticity of the correspondence, with good reason.
They were able to demonstrate that the plaintiff has fabricated such evidence in the past in order to obtain a favourable judgment.
On 14 March 1999 the plaintiff refused to provide a specimen of his breath when requested to do so by a police officer. He was charged with that offence and the matter came before the Cleveland Magistrates Court on 10 August 1999 when he sought an adjournment on the ground that he had a job interview that day. The matter was put off to 23 August 1999 when he was dealt with, fined and his drivers’ licence suspended. He successfully applied for a provisional licence to drive between the hours of 6.30 am and 6.00 pm, Mondays to Fridays, and 6.00 am to 1.00 pm on Saturdays ‘for purposes directly connected with his means of earning his … livelihood as a delivery driver for Brisbane Earthmoving P/L.’
In support of his application for the licence the plaintiff tendered a letter from Brisbane Earthmoving Pty Ltd dated 19 August 1999. It read:
‘This is to confirm that Phillip John Moore is employed by Brisbane Earthmoving Pty Ltd.
His duties are as follows:
Delivery of machinery, parts and lubricants to our sites in and around Brisbane
His hours are as follows:
7.30am to 5 pm weekdays and 7.30 to 12.00pm on Saturdays
Phillip’s average gross fortnightly wages is $900.00.
Obviously is (sic) Phillip does not hold a current drivers licence, we will have no alternative but to terminate his employment with this company.’
The letter was purportedly signed by David Day ‘Manager’.
As well as the letter the plaintiff produced to the magistrate a declaration signed and sworn under the provisions of the Justices Act 1886 in which he declared, on oath:
‘2. I am 50 years old and have a wife whom I support.
3.I am required to travel to various places for my work and need a driver’s licence to drive the utility as I need to deliver equipment to various sites.
4.If I lost my licence my employer would have no alternative but to sack me …
5.I work Monday to Friday from 7.30 am to 5.00 pm and on Saturday from 7.00 am to 12.00 pm.
6.I also need my licence to drive to and from work as there is no public transport … to and from my place of work …
8.I earn an average of $450 gross a week and am paid fortnightly.
…’
The plaintiff gave oral evidence to the magistrate on 23 August 1999 to the effect that he needed a drivers licence for his employment.
The plaintiff was never employed as a delivery driver by Brisbane Earthmoving Pty Ltd, or anyone else. His daughter worked there as a secretary and she typed the letter. She may have signed it as well. Mr Moore said it was signed by Mr Day but I have no confidence in the honesty of that answer.
The plaintiff’s evidence to the magistrate, both oral and documentary, was concocted. The tendered letter was an imposture. This was no casual lie told for expediency. It was organised, calculated perjury.
On 11 August 1999 the plaintiff completed a Newstart Allowance claim and an Employment Assistance claim for Centrelink. This was the day after he had sought an adjournment of the charge in the Magistrates Court on the ground that he was to attend an interview with a prospective employer. He declared, as part of the Newstart Allowance claim that he was unemployed; willing to work; looking for all types of work; and had taken all reasonable steps to obtain employment. In the Employment Assistance claim the plaintiff declared that he had not worked in the last five years but was ‘looking for work’. He said the work for which he was looking and was able to undertake was ‘plumber (general)’.
There is evidence which I mention later that the plaintiff could have obtained work as a plumber in the several years preceding his accident. His declarations to Centrelink that he was willing to work, and looking for work, were false. The plaintiff, for his own reasons, chose not to seek employment as a plumber.
In addition the plaintiff himself gave evidence that he could have obtained work as a delivery driver with Brisbane Earthmoving Pty Ltd. This was his evidence
(T 80.38-T 81.29):
‘And you didn’t have a job interview on 10 August 1999 when you told the magistrate … that you were attending for a job interview for that day? – I phoned up and got a job.
And on the following day, 11 August 1999, you were at Centrelink declaring … that you hadn’t had a job in five years? – Yes.
…
Who is Mr Day? Is he a friend of yours? – No. … He exists. My daughter worked for Brisbane Earthmoving. They are always looking for drivers.
… So you had your daughter secure a reference for you? – No. I had my daughter get me a job. I didn’t take the job.
… If I wanted a job, there was a job there.’
The plaintiff’s lies are legion. He told the Magistrates Court that he was employed as a delivery driver, and needed his licence, when he had no such job. He told Centrelink that he was unemployed but that he was willing to work and was looking for work as a plumber when, on his own testimony, he could have obtained work as a delivery driver and on Mr Etter’s testimony could have obtained better paid employment as a plumber.
I do not accept the plaintiff’s evidence about his prospective employment with
Etter and Green. I am not prepared to accept the authenticity of the correspondence from Etter and Green unless it is convincingly corroborated. It emerged within a year of the deceit practised on the Magistrates Court and in the context of the plaintiff’s foreshadowed claim for damages.
Corroboration was offered in the form of evidence from Mr Etter who deposed to the genuineness of the offer of employment to the plaintiff.
I am sceptical of Mr Etter’s evidence and am not convinced by it that the employment offer, or the correspondence, was genuine.
Mr Etter had been employed in the plaintiff’s plumbing company until it went out of business in about 1992. In the ensuing eight years the two men had little contact: Mr Etter ‘may have seen (the plaintiff) twice in that time’ (T 100.16). He could not recall clearly the circumstances in which he met the plaintiff and offered him the supervisor’s position. He thought the plaintiff ‘may have come around the office’ (T 101.40) because ‘he was passing … it was early one morning,’ he thought, ‘real early (about) 5.30 …’ (T 101.56-58). (One may interpolate to doubt this because Mr Moore was not licensed to drive before 6.30 in the morning). Mr Etter could not remember whether the plaintiff asked for the job or whether he offered it to the plaintiff. He was adamant that that was the only time they discussed the possibility of the plaintiff working as a supervisor and that they had had no contact which would have given the plaintiff ‘any indication at all that Etter and Green was going to employ him’ (T 102.19-20). It was ‘fortuitous’ (T 102.46-47) that Mr Moore should come into Mr Etter’s office at the very time when Mr Etter was contemplating the need for a supervisor.
Equally strange is the fact that the remuneration offered the plaintiff was greater than that which the two directors of the company, Messrs Etter and Green, were paying themselves. They were drawing only $750 gross per week from the business. As well in May 2000 the company was experiencing quite severe cash flow difficulties and it was far from clear that the company would survive. It did not. One must wonder whether Mr Etter would, in that circumstance, have seriously considered engaging a supervisor at an annual cost of about $60,000 to perform the unspecific tasks described in the letter. By the end of August when Mr Etter wrote to the second defendant the supervisor’s position was ‘no longer available’, though Mr Etter did claim that it had been filled for a few weeks between 29 May and
31 August 2000.
One should note that the plaintiff’s own evidence concerning his engagement by
Mr Etter was no more convincing. In part it contradicted what Mr Etter said. The plaintiff had no explanation for the appearance of the offer of the supervisor’s role which came eight years after he had last engaged in plumbing. He did not say he applied for it, or that Mr Etter approached him. He said only that he knew that
Etter and Green had won some large contracts and that he ‘basically knew it (his engagement as supervisor) was going to happen’. This, as I have mentioned, is contrary to Mr Etter’s testimony that prior to 15 May 2000 the plaintiff had no reason to believe he might be taken on as a supervisor.
I also reject Mrs Moore’s evidence that she telephoned Mr Etter on 26 May 2000 to tell him her husband could not start work. She was an evasive witness and her account of the communication was unconvincing. She rang, she said, before she had been able to speak to her husband and to ascertain the seriousness of his injury. Her first response was to terminate the plaintiff’s employment before it began.
I am not satisfied that the plaintiff was made a genuine offer of employment as a plumbing supervisor and would have commenced employment, but for the accident, on 29 May 2000. I reject the plaintiff’s contention that he has suffered economic loss valued by reference to secure employment as a plumbing supervisor.
It follows that the factual basis for the computation of loss undertaken by
Mr Thompson has not been made out. The consequence is not, of course, that the plaintiff recovers nothing by way of damages for economic loss. A consequence of the plaintiff’s broken leg is that he has lost his capacity to earn an income as a plumber, or plumbing foreman, or plumbing supervisor. I am not satisfied that he would have utilised that capacity, as he claims, with Etter and Green but he might have utilised it with some other employer for all or some of the years between 2000 and 2013 when he will turn 65. The decision of the High Court in
Malec v J C Hutton Pty Ltd(1990) 169 CLR 638 requires an assessment of the degree of likelihood that the plaintiff would have engaged in remunerated employment had he not been injured. The purpose of the assessment is to determine the extent to which the loss of the plaintiff’s earning capacity, which in this case is complete, has been and/or will be productive of financial loss: Husher v Husher (1999) 197 CLR 138; Graham v Baker (1961) 106 CLR 340 at 347.
What then was the chance that the plaintiff would have returned to plumbing work after May 2000? What is the degree of probability that he would have obtained paid employment in his trade? The evidence suggests the likelihood is low. The starting point of the assessment is that in the eight years or so between the collapse of his plumbing business and his injury the plaintiff did not seek paid employment. There is no doubt he was deeply affected by the liquidation of his company and no doubt bereft of motivation. It is significant that when he sought to re-establish some income he did not return to his trade but turned to the novel venture of property development. When that, too, failed in mid 1999 the plaintiff was again, understandably, devastated. Although his finances must have been straitened he was not impelled to return to work. Instead he sought social security.
When in August 1999 the plaintiff wanted to retain his drivers’ licence he invented a fictitious job rather than applying for a real one. In September 1999 his wife enrolled at a TAFE college to improve her accounting and computer skills in order to enhance her prospects of obtaining employment. I infer that the family needed money. The plaintiff was not moved by shame to go back to work himself.
Mr Etter gave evidence, which I accept, that at any time from the mid 1990s he would have employed the plaintiff as a plumber and would have had no difficulty in finding a position for him. The plaintiff could have earned between $700 and $750 gross per week plus superannuation and overtime. The plaintiff’s own evidence was that he could have obtained the position he had his daughter assert that he had, that of delivery driver with Brisbane Earthmoving Pty Ltd for $450 per week. He said that he could have had the driver’s job whenever he wanted. He never applied for it.
As the years went by it would, I think, have become progressively less likely that the plaintiff would have made the effort to return to work. Idleness appears to have had its attractions for the plaintiff. Eight years without a regular income had not induced the plaintiff to seek work. It is habit as well as necessity that keeps people working, and the plaintiff had lost the habit.
I would assess the plaintiff’s economic loss on the basis that there was one chance in five that he would have returned to remunerated employment as a plumber had he not been injured. There is no firm evidentiary basis for that assessment, or indeed for any other assessment, but the evidence strongly indicates the likelihood of a return to work was low. I must for the purposes of the assessment quantify the chance and 20 per cent as a degree of probability is the best I can do.
Mr Thompson’s reports provide a basis for valuing the probability. He has calculated that had the plaintiff secured employment as a plumbing supervisor on
29 May 2000 and continued in that employment without interruption to trial he would have earned $215,197 together with $21,838 of employer’s contribution to superannuation. Had he continued on until 60 before retiring he would earn a further $98,246 together with $10,291 by way of superannuation. If he worked a further five years, until 65 before retiring, the figures become $245,407 and $25,704 respectively. On these bases the plaintiff’s loss from injury to retirement at 60 would be $345,572, or $508,146 if he worked to 65. These figures are not exact expressions of loss. They are only indications of the possible value of the lost earning capacity.
I should note that Mr Thompson also calculated the plaintiff’s loss on the basis that he worked for two years as a supervisor and then commenced business as a plumber on his own account. I disregard this basis of assessment entirely. That possibility is, I think, entirely speculative. There is, I have found, a prospect that the plaintiff would have gone back to work as a plumber. The prospect exists only because the plaintiff had the requisite skill and knowledge and would have been in need of money. There is no basis for thinking that, for a third time, he would have set up business for himself, or that he could have raised the capital to do so.
There is no rational basis for determining whether the plaintiff would have worked to 60 or 65. Given his years of idleness it is perhaps more likely that he would have retired earlier rather than later. I intend arbitrarily to take the average of the two figures for economic loss and add the result, a figure of $426,859, to the computation of past economic loss. This figure, which represents the best estimate of the value of lost earning capacity, has to be adjusted for the chance that the loss would not have produced actual financial loss. The chance of such a loss accruing was 20 per cent. The adjustment is made by taking one-fifth of the value of the lost earning capacity. A fifth of that is $85,371.80, which I will round down to $85,000.
I will not allow anything for interest because it is impossible to know if any part of that notional sum would have been earned in the past. I am not disposed to make assumptions in the plaintiff’s favour. It is, anyway, an overall assessment of loss.
The other contentious component in the award is that for past and future gratuitous assistance. The plaintiff’s claim is substantial. He asks for the cost or value of his wife’s assistance for ‘bathing, dressing, walking when necessary, provision of medication when required, helping in and out of the shower, cooking, washing and drying up, washing, cleaning of bathrooms, kitchen, vacuuming and mopping of floors’. For the period 6 June 2000 (when the plaintiff returned from hospital) to
5 September 2000 he asserts he needed the ministrations of his wife to perform these chores for nine hours a day. For the period 12 September 2000 to
30 May 2001 he asserts his wife had to perform these tasks in his aid for seven hours a day. The identical claim is made for the year 7 June 2001 to 30 June 2002. From 1 July 2002 to trial it is said that Mrs Moore performed these tasks and rendered assistance to the plaintiff for three hours each day. It is said his need for assistance will continue at this level for the rest of his life.
The parties have agreed that the appropriate rate for the domestic assistance which the plaintiff needs is $16 per hour.
The plaintiff duly gave evidence that he needed his wife’s assistance for each of the chores described in the claim. He was adamant that his wife must walk with him from the house to the letterbox, a distance of about 100 metres. They live on a large block apparently without a formed driveway and he is afraid he will fall if he walks alone. Likewise he testified that he could not stand long enough to cook a meal or wash dishes. He said the tasks of cleaning floors or windows were beyond him. As well he has difficulty, he said, stepping into and out of the shower recess and requires the steadying hand of his wife. On occasions she is needed to wash his legs.
The plaintiff was photographed on three occasions when working on his motor yacht at her berth. He was unaware of the surveillance and behaved within the constraints of his injury but without contrivance. The films reveal the plaintiff to have a bad leg. He walks awkwardly and on occasions with the aid of a stick. He is, however, demonstrably able to do the things he swore he could not. He can unload a truck and carry objects for a distance. He can stand, on and off, for hours working at the equivalent of a bench. He can wash windows, at least those which are accessible. He can walk up and down a steep companionway and move relatively freely from wharf to deck. He can clean the deck of his yacht. There is no reason why he cannot clean the floor of his house. Nor can I take seriously his claims that he has difficulty stepping in and out of the shower recess, and sometimes cannot wash his legs. If he has such difficulty there is no need to bother his wife. He could at minimum cost install a hand rail to steady himself as he crosses the hob. He could buy a cheap plastic stool to sit on in the shower to apply soap to his lower extremities.
As with the claim for economic loss the plaintiff’s lack of candour makes the assessment difficult. I would accept that there are chores the plaintiff cannot perform and which his long-suffering wife must undertake. The difficulty is in knowing what he cannot do and what length of time would be involved in their performance. The plaintiff nominated as the need for assistance tasks which he can perform but has not described the things he probably cannot do.
In my opinion the defendants’ approach to the assessment is both fair and reasonable and I adopt it, with a qualification. The defendants accept that from the date of the accident until 25 July 2001 when the plaintiff commenced weight bearing in his cast he would have required substantial assistance in the order of three hours per day. At $16 per hour the figure comes to $20,592. The defendants further accept that for a period of another year the plaintiff would have continued to require assistance in the order of about two hours a day. The figure, at $16 per hour, is $11,680.
The defendants assert that the plaintiff has not been in need of any assistance since July 2002 and will not be in the future. I think this assessment is too robust. I think the plaintiff is unable to perform some household tasks, especially in the garden and with respect to a topic that was much debated in evidence, cleaning windows. Save for those which are located at a convenient height and adjacent to a stable platform the plaintiff would struggle at the task. There is much force in the submissions of Mr Williams QC that nothing should be allowed for future care because the plaintiff gave no evidence of what his real needs might be. He gave unacceptable evidence of needs which do not exist. Nevertheless some allowance should be made for what is a demonstrated incapacity in mobility and for heavy work. I allow two hours a week. There have been 190 weeks since July 2002. At $32 per week the award for domestic assistance for that period is $6,080. The total award for past assistance is therefore $38,352. Interest at five per cent for a period of 5.77 years is $11,064. For the future I extrapolate from the plaintiff’s claim ($32 per week by a multiplier of 555) discounted by 25 per cent for contingencies to obtain a figure of $13,320.
As to the other components in the award I accept the defendants’ submissions. Special damages and interest on those damages are agreed at $6,867.29 and $1,410.88 respectively. There is a claim for the ongoing costs of purchasing medication. The plaintiff asked for $10 a week but the evidence as analysed by the defendants shows the amount is excessive. I allow $1,000.
There is also a claim for the cost of future surgery should the plaintiff decide to undergo the arthrodesis. There is no certainty he will undergo the operation which at the moment he wishes to avoid. His attitude may change should his pain increase. The known cost of the operation must be discounted for the chance that the plaintiff will not incur the expenditure and for the fact that it will be incurred in the future. I allow $3,000. I allow a further sum of $500 for the chance that the plaintiff may require some post-operative therapy. I also allow $1,000 as a global sum by way of compensation for expenses the plaintiff may incur in the future for travelling to and from medical appointments and the costs of medical treatment.
I therefore assess damages as follows:
General damages $70,000.00
Interest on general damages (on $30,000
at 2 per cent for 5.75 years) $3,450.00
Special damages $6,687.29
Interest on special damages $1,410.88
Economic loss $85,000.00
Past gratuitous assistance $38,352.00
Interest on past care $11,064.00
Future gratuitous assistance $13,320.00
Future expenses, surgery, medication,
doctors and travelling $5,500.00Total $234,784.17
I give judgment for the plaintiff against the second defendant for the sum of $234,784.17.
I will refer to the Attorney-General the question whether the plaintiff should be prosecuted for perjury. I will direct that the Attorney be sent a copy of these reasons, pages 77 to 84 of the transcript, and exhibits 30, 31, 32 and 33.
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