Morgan v Conaust Ltd

[2000] QSC 340

SUPREME COURT OF QUEENSLAND

CITATION:	Morgan v Conaust Limited [2000] QSC 340
PARTIES:	ALISTAIR MORGAN (plaintiff) v CONAUST LIMITED ACN 000 049 301 (defendant)
FILE NO/S:	SC No 4952 of 2000 DC No 1423 of 1998
DIVISION:	Trial Division
DELIVERED ON:	28 September 2000
DELIVERED AT:	Brisbane
HEARING DATES:	28, 29, 30 August, 1 September 2000
JUDGE:	Wilson J
ORDER:	Judgment for the plaintiff against the defendant for $459,775.39
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – plaintiff waterside worker sustained injuries in course of employment – where defendant admitted negligence but denied it caused plaintiff’s injuries – where plaintiff suffered some psychiatric injury associated with physical injury
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE NERVOUS SHOCK OR MENTAL DISORDER – COMMON LAW – whether defendant responsible for plaintiff’s psychiatric injury – whether plaintiff consumed alcohol to excess – conclusiveness of certain medical tests used to detect alcohol abuse
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – whether plaintiff’s failure to accept a voluntary redundancy package amounted to an unreasonable failure to mitigate his loss – no failure to mitigate because payment would not have been in consequence of the plaintiff’s injuries or a substitute for income he would have earned but for his injuries
Clay v Freda (unreported, Supreme Court of SA Full Court, No 554 of 1988, 1 July 1988), applied Grincellis v House (2000) 74 ALJR 1247, applied Jaensch v Coffey (1983-84) 155 CLR 549, referred to Morgan v Tame [2000] NSW CA 121, referred to Mount Isa Mines v Pusey (1970) 125 CLR 383, referred to National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, applied Redding v Lee (1982) 151 CLR 117, applied
COUNSEL:	RJ Oliver for the plaintiff RN Alldridge for the defendant
SOLICITORS:	Baker Johnson for the plaintiff Thompson Hannan for the defendant

1. WILSON J: The plaintiff claims damages for personal injuries sustained in the course of his employment by the defendant as a waterside worker at Fisherman Islands on two occasions in 1996 - 7 August and 6 November. With respect to each incident, the defendant admitted negligence but denied that it caused the injuries of which the plaintiff complains.

The first incident

1. The plaintiff was a passenger in a minibus used to transport workers on the wharf. He was seated on a fold-down seat beside the sliding door of the minibus. There was no seatbelt available to him. The minibus collided with a van. The plaintiff remembers hearing a bang, “seeing stars” and the arrival of the company ambulance which took him to the first aid room. The first aid log reads -

   “MARSHAL VAN AND OPERATION VAN COLLIDED CAUSING PAINS IN BACK & NECK BOTH SHOULDERS BOTH KNEES & RIGHT HIP SOAR [sic] HEAD FROM HEADS COLLIDING WITH OTHER PASSENGER G SPENCE 475 ALSO IN STATE OF SHOCK.”

2. The plaintiff was taken to the local hospital where he was given pain killing medication. He went home, and the next day his wife took him to a general practitioner, Dr Liam Rath. He complained to Dr Rath of headache, painful shoulder blades, pain in the right hip and lumbar muscular pain. On examination, he had acute neck pain and marked tenderness over vertebrae C7 to C1. He was unable to move his neck at all. There was tenderness over the left scapula and extreme tenderness over both trapezii muscles. There was tenderness inferior to the right greater trochanter. By 12 August he was still complaining of pain (although the intensity had lessened a little) and of sleeping on and off and visual disturbance in his right eye. He was treated with pain killing, anti-inflammatory and tranquillising medication and referred to a physiotherapist.

3. The plaintiff was keen to return to work; quite simply, he needed the money. He returned although he was still receiving physiotherapy. He was very nervous, and when he had to travel in the minibus he insisted on sitting near the driver where he felt he could exercise some control. Because of difficulties associated with his injuries and his nervous state, he asked to be moved from full duties to general (ie light) duties. After a week of general duties, he took two weeks annual leave followed by a week when he was rostered off.

4. On Monday 4 November 1996 the plaintiff returned to normal duties driving machinery. The next day was Melbourne Cup Day and the wharf was closed. The second incident occurred on Wednesday 6 November 1996.

The second incident

1. The plaintiff commenced work at 7.30 am intending to work a double shift and finish at about 11.00 pm. He had an extended “smoko” break between the two shifts. One of his tasks was to operate a Hyco reach lifter (a type of mobile crane) which was used to move shipping containers around the wharf. It was usual for the defendant to roster two operators per Hyco per shift; they would work alternatively about 2 - 2.5 hours on the machine and 2 - 2.5 hours off (attending to other tasks). The containers were stacked in rows up to three high. In between the rows of containers were “rows” or laneways, some wide and some narrow. The surface of the tarmac undulated, apparently for drainage purposes. The operator would receive instructions by radio as to which container was to be picked up and to where it was to be shifted.

2. I accept the plaintiff’s account of what happened. He was instructed to pick up a particular container 40 feet long and weighing 30 tonnes and take it to an Ibex truck. He had to drive into a narrow row. The containers were stacked three high. He turned the reach lifter into the stack raising the boom. The position of the cabin on the Hyco was adjustable; he had it forward for maximum visibility. He latched on to the container and started to raise it. The container tipped to one side: its load of scrap metal had moved. He lifted it higher and endeavoured to level it. With the boom high, he reversed out of the row, at the same time as turning the container round to be parallel with the front of the machine in order to make the machine more stable; he backed down the row having to swing this way and that to get out of the row. He was sitting sideways in the Hyco rather than turning his neck, which was still stiff and painful from the first incident. As he started to turn to exit the row, he heard a loud bang; he saw a big white steel rim shoot across the tarmac; and he was thrown around in the cabin and across the controls before managing to bring the vehicle under control and lower the load while still reversing. He observed that the front right outer tyre was leaning outwards. He came to rest parallel with the Ibex truck. According to a fellow worker Norman James Greig, the stepped out of the Hyco looking agitated. Within a few seconds of seeing what had happened, he was “shaken up pretty bad”.

3. A clamp ring which normally held the front wheels rigidly in connection with the axle had come off (as the result of the clamp nuts being loose), causing the outer wheel to be displaced from the axle and resulting in a downward deflection of the right front of the vehicle of up to 150 mm. I accept the evidence of Dr Malcolm Jenkins, a mechanical engineer called by the defendant, that the plaintiff would have been thrown about in the cabin, the degree of oscillation being similar to the most violent braking in a motor car as the tyres would start to skid. The oscillations may have continued for several seconds.

4. The plaintiff was taken to the first aid room. The first aid log records -

   “WHILE REVERSING HYCO 33 WITH 40 FT CONTAINER ON THE RIM ON THE FRONT RIGHT WHEEL CAME OF [sic] CAUSING REST OF WHEEL TO COLAPSE [sic]. THIS CAUSED WHOLE MACHINE AND CABIN TO SEVERLY [sic] JOLT CAUSING SEVERE PAINS TO NECK AND BACK ALSO CAUSING SEVERE SHOCK HANDS ARMS & LEGS SHACKING [sic].”

5. A fellow worker, Keith Stephen Lake, drove the plaintiff home from the Fisherman Islands wharf to Bald Hills. He described him as shaking and very pale. On the way home they had to stop several times because the plaintiff was dry retching and vomiting. I accept Mrs Morgan’s evidence that when he got home he was pale and sweaty; he was shaking and his voice was trembling as if he was going to burst into tears; he was in intense pain.

6. The next day the plaintiff’s wife took him to Dr Rath who recorded -

   “He was displaying severe post traumatic stress symptoms. He described a headache of a severe nature and felt as if his head was going to explode. On examination, there was tenderness over the lower thoracic spine. He was unable to rotate the neck to the right because of pain. Rotation of the neck to the left was also markedly reduced. There was tenderness either side of the lumbar spine.”

The plaintiff before these incidents

1. The plaintiff was born in the United Kingdom on 13 January 1942. He married in 1960 and migrated to Australia in 1963. He and his wife have lived at Bald Hills for about 30 years. They have 3 natural children and 1 adopted child. In addition they have acted as foster parents to 2 children on a long-term basis and to about another 15 on a short-term basis. His wife described him as a good husband, a good father and a good grandfather. He was quietly spoken and quietly natured, but still outgoing and somewhat of a practical joker. His hobby was woodturning. He made furniture and attended to the house maintenance.

2. The plaintiff has been a waterside worker since 1964. He enjoyed his work, and was planning on working until he was 65 years of age. He and his wife had borrowed money against the security of their house to purchase acreage at Burpengary where, as an owner builder, the plaintiff was going to build a home for their retirement. Their house at Bald Hills is in a busy street, and on one occasion (well before the incidents at work in 1996) a vehicle ran into the carport and damaged two vehicles.

3. The plaintiff had a number of distressing experiences, including the deaths of work friends and his son’s involvement in a car accident. At one stage he received a number of abusive phone calls about drugs from his foster son’s friends, but he dealt with this by having the phone number changed.

4. Over the years he had sustained various soft tissue injuries working on the wharves. He had developed arthritis in his right hip. He suffered an injury to his shoulder in March 1991 and to his back in February 1987. In his oral testimony he denied any ongoing problems with his back, although he told at least one of the doctors who examined him (Dr Peter Boys) of a history of intermittent back pain in the course of his work resulting in 4 or 5 worker’s compensation claims. He denied having any problems with his neck before these incidents. There is radiological evidence of multi- level age related degenerative change in his cervical and lumbar regions.

5. A major issue at the trial was whether the plaintiff abused alcohol. I shall return to this below.

The plaintiff since these incidents

1. Since these incidents the plaintiff has been under constant medical supervision, both by Dr Rath and by Dr Jonathan Hargreaves, a psychiatrist to whom he was referred in mid November 1996. He has constantly complained of problems with his neck and back, headaches, problems with his vision and of a nervous problem. According to his wife, who impressed me as an honest, sensible witness and a very caring wife, his condition has never improved. He takes antidepressant, tranquillising and painkilling medication. He does not want to venture out of the house for fear of the traffic. He has an erratic sleep pattern, and spends much of his waking time watching television (particularly news programmes). He no longer has a sense of humour. He is forgetful, and she has to make sure that he takes his medication and coax him to eat. She has to shoulder a greater proportion of the daily chores than before. Because of constant pain and problems with his vision, he has had to give up woodturning, which has caused him a great deal of grief. He can no longer do gardening or handyman tasks around the house. They have had to sell the Burpengary land.

Physical injuries

1. The defendant conceded that the plaintiff sustained soft tissue injuries to the neck and lower back in the first incident, and that if he was thrown about in the Hyco in the second incident (which I find he was), he sustained an aggravation of those injuries at that time. This is consistent with the orthopaedic evidence of Dr Boys and Dr Paul Pincus. Dr Boys considered that he had a 10 - 12.5% permanent impairment of bodily function attributable to his neck, of which 2 - 4% was due to the work incidents, and Dr Pincus put it at 5% without saying how much was due to the work incidents. Both considered that he had a 5% permanent impairment of bodily function attributable to his back; in Dr Boys’ opinion none of this was due to the work incidents and again Dr Pincus did not say how much was due to the work incidents. Dr Boys commented -

   “This man’s perceptions of disability reflect the effects of age related degenerative changes of the spine and an abnormal psychological response to his injuries. I note that he has been treated for a psychological condition characterised by anxiety and depression. I believe that his perceptions of disability are disproportionate to the objective evidence of bodily dysfunction.”

   Dr Francis Tomlinson, a neurosurgeon, put the disability in the neck at 10% whole body permanent partial disability as the result of the injuries sustained in the work incidents, and considered he had a 5% whole body permanent partial disability relating to his lumbar spine injury. On any view of this evidence, the plaintiff sustained an aggravation of his preexisting degenerative changes in his cervical and lumbar spine, the extent of the aggravation was relatively small, and it does not account for all of his ongoing symptomatology.

2. The plaintiff has complained of visual symptoms including scintillations and cloudiness. Neither of the eye specialists who examined him (Dr John Harrison and Dr Peter Cranstoun) could identify any ocular or pathological cause for these symptoms. Dr Harrison said –

   “I think it is a reasonable assessment that tension and anxiety are playing a role in the causation of symptoms in this fellow, but it is difficult to ascertain how much this might influence his working ability. These kind of symptoms certainly have the propensity to wax and wane and can disappear spontaneously just as readily as they have appeared in the first place, but the prognosis is quite variable from patient to patient.”

   Dr Cranstoun said -

   “The association between visual disturbance and whiplash injuries has been the source of some debate in the past, and a direct cause and effect is by no means accepted to my knowledge.”

   In oral evidence Dr Tomlinson conceded that the visual problems could be due to anxiety but he thought it more likely that they were a secondary phenomenon relating to the cervical spine injury. On the evidence the visual problems have been present only since the work incidents, and I find that they are a result of those incidents, without it being necessary to determine whether they relate to the neck injury or to the plaintiff’s mental problems to which I shall now turn.

Psychiatric injury

1. Although Dr Hargreaves and Dr Rath referred to post traumatic stress disorder in their early records in relation to the plaintiff, that was not the plaintiff’s case at trial. Rather it was that he was suffering an anxiety disorder with a depressive condition. The defendant’s counsel appeared to concede in his address that it was a case of some psychiatric injury associated with the physical injuries rather than pure psychiatric injury (transcript page 245). (As to pure psychiatric injury, see the discussions of the applicable principles in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1983-84) 155 CLR 549; Morgan v Tame [2000] NSW CA 121.) He submitted that while it would be open to the Court to find that the plaintiff had suffered some relatively minor consequential psychiatric condition which would probably respond to treatment after the conclusion of the litigation, other stressors and or excessive alcohol consumption were responsible for his condition at trial.

2. The issue of whether the plaintiff consumed alcohol to excess occupied a good deal of time at trial. About 20 years ago he was convicted of a drink driving offence. He said that prior to 1988 he drank beer sometimes, although he never drank wine. Infrequently he would go to a hotel with workmates and have a couple of beers; occasionally he would have a beer at a sports match on a Saturday afternoon; and occasionally he would go to the local hotel near where he lived, although he spent most of his time away from work with his family or in his workshop. He said that his last drink had been a Guinness at Expo; he had been so appalled at the price that he had resolved not to drink again. Mrs Morgan is a Mormon whose strong religious beliefs preclude the presence of alcohol in their house. She supported her husband’s evidence that his last drink had been at Expo. In cross examination she acknowledged that before then he had consumed alcohol on social occasions, but she was firm that he had never abused alcohol, and that they never had alcohol in the house. She said that since the incidents at work her husband had had neither the opportunity nor the money to drink without her knowing.

3. The evidence supporting alcohol abuse took the form of results of pathology tests ordered by Dr Martin Nothling, a psychiatrist who examined the plaintiff on behalf of the defendant. He told the Court that a number of factors raised his suspicion and led to his pursuing the issue clinically: the plaintiff’s past history of a drink driving conviction; that he had had a number (in fact two) accidents; that he did not seem to be recovering despite appropriate psychiatric treatment; and that his wife had told another psychiatrist Dr Peter Mulholland that he had always been a non-drinker despite the drink driving conviction. He referred also to the plaintiff’s unreliability as an historian and commented on a phenomenon recognised by psychiatrists that people who abuse substances such as alcohol often lie.

4. The test results on which most attention was focussed at trial were those relating to the plaintiff’s “CDT” (carbohydrate deficient transferrins) levels. The transferrin is the iron carrier in the blood. CDT generates in the liver after alcohol consumption. The

   plaintiff’s CDT levels were measured and found to be elevated on three occasions –

Date	Plaintiff’s CDT level	Normal Range
11.08.98	36 units per litre	0 - 20 units per litre
04.02.99	28 units per litre	0 - 20 units per litre
01.12.99	11%	0 - 5%

On each occasion the pathologist who reported on the test results commented that the elevated CDT and the MCV results (as to which see the following paragraph) indicated probable excessive alcohol intake. On the third occasion the probability was put at 80%.

1. Dr Charles Appleton, a chemical pathologist, gave evidence of the significance of these results. He described the CDT test as probably the most specific and most sensitive pathology test available for detecting alcohol abuse. Three parameters are taken into account –

   (i)         CDT.

   (ii)        GGT (gamma glutamyl transpeptidase) - one of the liver function tests, a measure of the liver’s breaking down of alcohol. An elevated level is indicative simply of the liver’s doing its job. The test has a 30 % false negative rate, so that there would be a 70 % chance of an elevated level if the plaintiff had been drinking. The plaintiff’s reading was at the high end of the normal range on the two occasions it was tested (11 August 1998 and 4 February 1999). A normal reading neither supports nor fails to support a conclusion of alcohol abuse.

   (iii)       MCV (mean corpuscular volume). An elevated level is indicative that the amount of alcohol being broken down is sufficient to cause damage to the bone marrow and to harm its ability to produce normal red blood cells. Factors other than alcohol intake can cause the level to change - for example, malnutrition, liver disease, chronic rheumatoid arthritis. When tested on 4 February 1999, the plaintiff’s MCV level was at the high end of the normal range.

1. Dr Appleton said that it is well recognised that there can be false positive results with the CDT test. There is a genetic condition associated with very high CDT levels (but there was no suggestion that the plaintiff had such a condition). Those suffering non- alcohol related diseases of the liver can have elevated CDT levels. The amount of alcohol required substantially to raise the CDT level cannot be predicted. Dr Appleton considered that on each occasion the plaintiff’s CDT level was tested, it was likely that he had consumed alcohol within 4 - 6 weeks. This could have been consistent drinking of 4 - 7 standard drinks per day or binge drinking, say, over a weekend. The statistical probability of excessive alcohol intake is calculated on a specific subgroup of the population - those who are unemployed, known to abuse drugs and psychiatrically disturbed. Teetotallers have an average CDT level of 4%. Working on that subgroup of the population, there is a 20 % chance that a teetotaller would have a CDT level of 11%; working on the population at large, the probability is 25 - 30%.

2. The CDT test is an objective tool in the assessment of patients, as Dr Appleton fairly conceded. In order to form a final conclusion, it would be necessary for a clinician to consider all relevant indicia. Dr Mulholland said he did not have much faith in the tests because sometimes patients who were absolutely adamant they had not been drinking had raised levels and others in relation to whom there were indications of heavy drinking had normal levels. He would look for physical manifestations such as the patient looking unwell, tremors or shakes, and raised GGT and MCV levels. On the other hand Dr Jill Reddan, another psychiatrist, expressed faith in it. Dr Rath, who had seen the plaintiff continually since the two incidents at work, and who was Mrs Morgan’s general practitioner too, was firmly of the view that the plaintiff did not have a history of alcohol intake. He was aware of the CDT results, but arrived at that conclusion after considering the collateral history he obtained from Mrs Morgan, the absence of spider nevi on the plaintiff’s hands and face, the normal appearance of the liver on abdominal examination, urine tests and other blood tests.

3. On all other issues the plaintiff and his wife impressed me as credible witnesses. I am not satisfied that the CDT test results are conclusive of alcohol abuse in all the circumstances. I find that the plaintiff has not abused alcohol since the work incidents, and that his mental problems are not alcohol related.

4. There was an issue as to the effect of other stressors on the plaintiff’s mental state, in particular his anxiety and depression. These stressors included a granddaughter being bitten by a spider, another granddaughter breaking her arm and having to have it pinned, a son-in-law being involved in an accident with a road roller and sustaining injuries to his knees and testicles, and the deaths of friends. I accept the opinions of Dr Mulholland and Dr Hargreaves that these may well have aggravated the plaintiff’s condition, but I am satisfied that the primary condition stems from the work incidents.

5. The possibility of the plaintiff’s consciously or subconsciously exaggerating his symptoms was canvassed with the psychiatric witnesses. Tests done at the time he saw Dr Nothling indicated that he had not been taking his medication, and yet he did not appear anxious at interview. Nor did he appear anxious when examined by Dr Mulholland. However, anxiety is a subjective phenomenon and as Dr Mulholland said, a patient may be anxious without giving the outward appearance of being so. I find that there was no deliberate exaggeration, and if there was any subconscious exaggeration (which is unlikely), that in itself was a feature of his mental state brought on by the work incidents.

6. The plaintiff’s prognosis is comparatively bleak. The consensus of expert opinion was that some improvement can be expected upon the conclusion of the litigation. However, while there may be some improvement in his quality of life, he is unlikely to return to his premorbid condition. With ongoing psychiatric problems and given his age, the time he has been out of the workforce and the limited field in which he has worked, he is unlikely to be able to return to the workforce. This would be so even in the absence of the negative attitude which the plaintiff has toward the defendant.

Assessment
Pain and suffering

1. I assess damages for pain and suffering and loss of the amenities of life at $40,000, of which $20,000 is apportioned to pre-trial loss. Interest on the pre-trial component at 2% pa over 4 years comes to $1,600.

Past loss of earning capacity

1. At the time of the incidents the plaintiff was earning approximately $1,000 net per week. He would have continued to earn at that rate until 21 June 1999 when an enterprise bargaining agreement came into effect. Thereafter he would have earned at the rate of $820 net per week.

2. In April 1999 the defendant wrote to the plaintiff inquiring whether he would be interested in accepting a voluntary redundancy package. This was an inquiry made of workers generally and was unrelated to the plaintiff’s injuries. The plaintiff was not given any information as to the amount of the payment. He was simply asked to indicate his interest by ticking a box on a form and returning it to the defendant. The plaintiff did not complete the form and he made no inquiry as to the amount of the payment: he was not interested in redundancy but wanted to work until he was 65. In fact the payment would have been about $80,000. Counsel for the defendant submitted that the plaintiff’s conduct amounted to an unreasonable failure to mitigate his loss, and that the amount of the redundancy payment should be deducted from the damages for past economic loss; alternatively, those damages should be discounted for the probability that he would have accepted the redundancy package had he not been injured. In my view the failure to accept the redundancy package does not amount to a failure to mitigate because the payment would not have been in consequence of the plaintiff’s injuries or a substitute for income he would have earned but for his injuries: Redding v Lee (1982) 151 CLR 117 at 125, 139; National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Clay v Freda (unreported, Supreme Court of SA Full Court, No 554 of 1988, 1 July 1988). Nor do I accept that it was probable he would have accepted the package had he not been injured. At the time it was proposed, he was aged 57, with limited experience in the workforce and so limited prospects of securing alternative employment, but a strong economic incentive to continue working (namely, to pay off the Burpengary land and build a retirement house there).

3. Applying the figures in paragraph 32 above, the pre-trial loss of earning capacity would be $188,300 (135 weeks at $1,000 net per week plus 65 weeks at $820 net per week). That figure should be discounted for contingencies, including the risks of further back problems and of the degeneration in the neck becoming symptomatic. In all the circumstances I allow $165,000 for past loss of earning capacity.

4. The plaintiff has received approximately $61,000 in worker’s compensation payments. I allow interest on $104,000 of the past loss of earning capacity at 5% pa over 4 years, which I calculate at $20,800.

Future loss of earning capacity

1. I assess the plaintiff’s future loss of earning capacity on the basis of a loss of $865 net per week over 6 years. (I accept that would have been his ultimate rate of earnings under the enterprise bargaining agreement.) Applying the 5% discount tables, the present value of such a loss is about $235,000. I discount that figure for contingencies to $195,000.

Superannuation benefits

1. The plaintiff claims lost employer’s contributions to his superannuation. I approach the assessment of the past loss as follows. The gross weekly loss of earnings to 21 June 1999 would have been about $1,475, and from then until judgment it would have been about $1,155. Thus the total loss would have been -

   ($1,475 x 135 weeks) + ($1,155 x 65 weeks) = $274,200.

   Discounted for contingencies, the gross loss would have been $227,586. The employer’s superannuation contributions would have been 6% of the gross earnings, that is, $13,655. That figure is to be reduced by 30% for income tax. Thus the loss of pre-trial superannuation contributions is $9,558 which I round down to $9,500. (The rate of 6% was agreed by counsel, although they would have been content with a calculation based on the net earnings, with no further deduction for income tax.)

2. Applying a similar methodology to a gross income of $65,000 pa (which is to be discounted for contingencies) and allowing for employer’s contributions at 7% of the gross earnings, I assess the loss of future superannuation contributions at $13,800.

Gratuitous services

1. The plaintiff claims the commercial value of services provided by his wife in accordance with the Griffiths v Kerkemeyer principle. For the past he claims 2 hours per day at $10 per hour for the whole period until trial. This is a not an unreasonable approach, although it is always difficult to be precise as to the number of hours involved. I allow $20,000 to compensate the plaintiff for his need for such services up to trial.

2. I allow interest on the past gratuitous care at 5% pa over 4 years (as to which see Grincellis v House (2000) 74 ALJR 1247) which I calculate at $4,000.

3. On the medical evidence there is likely to be some improvement in the plaintiff’s quality of life after the conclusion of the litigation, although he is unlikely to return to his pre-accident self. I allow $29,500 for his future need for gratuitous services. I have arrived at this by taking 1 hour per day at $12 per hour over 10 years and then discounting the result by 15%.

Special damages

1. Special damages paid by WorkCover amount to $8860.04 and I allow $2702.25 for other specials.

Fox v Wood

1. Income tax paid on worker’s compensation payments (the Fox v Wood component) is $18,750.15.

WorkCover “refund”

1. The total amount paid by WorkCover, which is to be deducted from the damages, is $69,742.05.

Summary

[45] In summary, my assessment of damages is as follows –

Pain and suffering and loss of amenities	$	40,000.00
Interest on past pain and suffering, etc	$	1,600.00

Past loss of earning capacity	$ 165,000.00
Interest on past loss of earning capacity	$ 20,800.00
Future loss of earning capacity	$ 195,000.00
Past loss of employer’s superannuation contributions	$ 9,500.00
Future loss of employer’s superannuation contributions	$ 13,800.00
Past gratuitous services	$ 20,000.00
Interest on past gratuitous services	$ 4,000.00
Future gratuitous services	$ 29,500.00
Specials paid by WorkCover	$ 8,860.04
Other specials	$ 2,707.25
Fox v Wood	$ 18,750.15
$ 529,517.44
less WorkCover “refund”	$ 69,742.05
$ 459,775.39

1. I give judgment for the plaintiff against the defendant for $459,775.39.