Muggleton v State of New South Wales

[2018] NSWDC 151

District Court

New South Wales

Medium Neutral Citation:	Muggleton v State of New South Wales & Anor [2018] NSWDC 151
Hearing dates:	12 June 2018
Date of orders:	15 June 2018
Decision date:	15 June 2018
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the plaintiff against the second defendant for $337,899.68. (2) Order the second defendant to pay the plaintiff’s costs. (3) Liberty to approach my Associate within 7 days if either party seeks any different costs order.
Catchwords:	DAMAGES – non-economic loss – past economic loss – future loss of earning capacity
Legislation Cited:	Civil Liability Act 2002 (NSW)
Category:	Principal judgment
Parties:	Robert William Muggleton (plaintiff) State of New South Wales (first defendant) Roads and Maritime Services (second defendant)
Representation:	Counsel: Ms E Welsh (plaintiff) Mr S McCarthy (first defendant) Mr S McCarthy (second defendant)   Solicitors: Brydens (plaintiff) Meridian Lawyers (first defendant) Meridian Lawyers (second defendant)
File Number(s):	2014/332314

Judgment

Introduction

1. The Sow and Pigs Reef is a dangerous hazard to navigation, just inside the entrance to Sydney Harbour. On 11 November 2011 the plaintiff was a crewman aboard the racing yacht “Kookaburra”. The yacht hit the reef at speed and the plaintiff was seriously injured.

2. By a Statement of Claim filed on 11 November 2014 the plaintiff sued the State of New South Wales as first defendant and Roads and Maritime Services as second defendant. The plaintiff discontinued against the first defendant with no order as to costs.

3. The second defendant is the government entity responsible for marking navigation hazards. Shortly prior to the “Kookaburra” running aground, the second defendant had placed a navigation mark in the wrong place, so that the skipper of “Kookaburra” believed he was sailing in clear water rather than towards the reef. Liability was admitted by the second defendant and the matter proceeded as an assessment of damages.

Evidence of the Plaintiff

4. At the outset I record that the plaintiff struck me as an honest, taciturn man who gave his evidence in a very matter of fact fashion. I accept him completely as a witness of truth. Further, there was no challenge to his credit by the second defendant.

5. Besides the evidence given orally by the plaintiff, there is much contained in the histories given to doctors and set out in the medical reports. Those reports were admitted without any limitation, and thus the history given by the plaintiff in those reports is also to be taken into account in coming to a final view about damages.

6. The plaintiff was born on 21 April 1956 and is 62 years old. He is a single man who lives with his father who is aged 94. He has qualifications as a master sailor and a sailing instructor. He has been self-employed for many years in the sailing industry.

7. After working in several physical trades the plaintiff became involved with boats in about 1991. He qualified as a coxswain which entitled him to skipper boats up to 12 metres in length. He obtained qualifications as an inshore instructor. By 2005 he obtained higher qualifications as a master sailor. From about 2007 onwards he was skippering or crewing the former America’s Cup yacht “Kookaburra”. This vessel was operated on a commercial basis by Sailing Sydney.

8. On the day of the accident the plaintiff was a crew member on the “Kookaburra” which was involved in a match race on Sydney Harbour. The spinnaker had just been raised and he was belaying a lifting line. The yacht was travelling at about 10 knots when it hit the reef and stopped dead. Being a racing yacht, the deck is made of carbon fibre, which is a very hard and strong material. The plaintiff was violently thrown to the deck and landed face first. He described his face as cracking like an eggshell. People on the boat attended to his bleeding and he was taken to shore and placed in an ambulance. He was conveyed to St Vincent’s Hospital. He described his teeth as being “everywhere”. He had a split in his upper palate. He was seen overnight in St Vincent’s Hospital and then released.

9. The plaintiff was taken back to St Vincent’s Hospital on 17 November 2014 when he came under the care of Dr Moisidis. Four pins and arch bars were inserted into his upper jaw and the upper and lower jaws were connected by elastics. He had to eat through a straw after that operation.

10. By Christmas 2011 he still had pain in his jaw. He had clicking, a split in his palate and his teeth were still all over the place. He had dull pain in the whole of his face. He lost the feeling on one side of his mouth.

11. On 30 January 2012 the plaintiff went back to sailing work. He felt very anxious. He only worked weekends and was only allowed to crew a yacht and could not skipper one.

12. The plaintiff saw Dr Tsakiris for an operation on 31 May 2012. This involved bone grafting to the right-hand side of the maxilla. His face was reset. He had pain after this operation for about a month.

13. In 2013 he came under the care of Dr Baetz, a prosthodontist. He took x-rays and moulds. By then the plaintiff was missing one tooth. Dr Baetz referred the plaintiff to Dr Stramotas, an orthodontist. He put braces on the plaintiff’s teeth to re-align them. Some teeth were removed at this time.

14. In November 2015 the plaintiff went back to Dr Baetz and had three crowns and a bridge inserted. Where this work was done the plaintiff has no feeling in his teeth. He still has numbness in his upper lip. He has a dry mouth at times and at other times cannot stop salivating and he drools.

15. The plaintiff went through a tough time emotionally. The case manager engaged by the workers compensation insurer was withdrawn by that insurer. The employer at the time of the accident had promised to help, but he soon abandoned the plaintiff. The plaintiff felt alone and depressed. He was withdrawn and did not want to go to work. This emotionally difficult period lasted for at least one and a half years.

16. In 2013 the plaintiff bought a Hobie Cat, which is a two person catamaran. In February 2014 he competed in the World Championships on Jervis Bay. He felt that his mood improved as a result of taking up hobby sailing again. His father remarked at that time that it was the first time he had heard his son laugh in the years since the accident.

17. The plaintiff said that he was conscious that his face looked different to what it had been. He did not socialise as much now. He thought that his confidence was getting better but he still felt stressed and apprehensive when meeting new people. He did not enjoy sailing as much as before the accident. Nowadays he was always unduly worried about safety factors on a boat.

18. The plaintiff said that before the accident he worked about five days a week in the busier parts of the year, which were the warmer months. There was little or no work in winter time. This was borne out by a journal the plaintiff kept of his work in the tax year 2017/2018. In the week before the trial the plaintiff did not work any days. The week before that he worked three days, and the week before that he did not work any days.

19. The plaintiff had since the accident declined certain kinds of sailing work. Two or three times a month he was offered a job being the skipper of a boat being taken out on the harbour at night. He found Sydney Harbour very busy. Often these trips at night were for buck’s nights, and whereas he could deal with drunk people before the accident, he found it difficult to approach people to ask them to stay in control, as he was obliged to do as the skipper. These jobs were for four hours at $50 per hour.

20. The plaintiff said that over the years he had seen 26 different medical practitioners, including dentists and medico-legal doctors. He has recorded 143 attendances at various doctors and dentists. The plaintiff said that he found this very wearing and there was a time when he just did not know why he was going to any particular practitioner.

21. The plaintiff had changed from doing work on Sydney Harbour to working for All Sail Sailing School at Pittwater. This involves skippering yachts sailing on Pittwater and conducting sailing training on Pittwater.

22. The plaintiff’s tax returns were put into evidence and he was cross-examined upon them. He acknowledged that sailing is seasonal and there is more work in the warmer months than the colder months. As a self-employed sailor he is dependent upon being offered work.

23. The plaintiff had been able to return to work as a crew member on the America’s Cup boats run by Sailing Sydney. This involved doing a lot of grinding work on the boats which is highly physical. He was eventually permitted to return as a skipper on these boats.

24. While he did most of his work nowadays at Pittwater, he said that he would not knock back an offer of work on Sydney Harbour for a sober respectable group.

25. The plaintiff acknowledged in cross-examination that he had told Dr Chang in June 2013 that there was little work at that time due to a recession. The plaintiff explained that when economic times were hard, one of the first expenses people cut down on involved boats. People simply did not have the money to charter yachts. The plaintiff also acknowledged that he had not sought any treatment for his emotional problems but he said he would continue to see his GP in this regard.

26. The plaintiff had done some carpentry work. In 2017 he did some work for his sister involving removing internal walls, installing new windows and installing new doors. He accepted that he could earn income as a handyman if he sought that work.

27. The plaintiff agreed that he had participated in a 54-hour race starting just after Christmas 2017 from Pittwater to Coffs Harbour. Conditions had turned very bad and he was the sailing master. He made the decision to keep going and finish the race as he was the person in charge.

Evidence of the Plaintiff’s Sister

28. The plaintiff’s sister Ms Annie Muggleton gave evidence. She visits her father and brother every Saturday night. She described the plaintiff before the accident as a positive, happy person. He was a very spiritual man. He had hobbies including making jewellery and carpentry.

29. Ms Muggleton saw her brother in St Vincent’s Hospital and described his face as “mangled and puffy”. He was disoriented and he had many broken teeth. In the first few months of treatment his jaw was wired and he was eating through a straw. His speech was slurred. She said that he became a recluse and that when he spoke he put his hand over his mouth. He was very conscious of his missing tooth.

30. Ms Muggleton confirmed that her brother felt let down by the former employer who had made promises on the night of the accident that the plaintiff would be looked after, but who never helped him again after that. There was a decline in the plaintiff’s mood and Ms Muggleton described him as introverted, depressed, and not the outgoing person she knew. She thought that in the last six months the plaintiff had become more positive. He had gone back to woodworking.

31. When Ms Muggleton visited her brother and father each week, she described happy visits prior to the accident where “we talked all night”. She said that now “he just talks at me”. Ms Muggleton said that the plaintiff gets cross if he doesn’t agree with his sister. She described the plaintiff as “happy Rob or cranky Rob”. Ms Muggleton now leaves these family dinners if the plaintiff gets upset. This has happened four times in the last six months. She described the plaintiff now as an observer at family gatherings, whereas before he had been very involved.

32. Understandably there was no cross-examination of Ms Muggleton who was a witness of truth and who painted a very detailed and sad picture of the changes in the plaintiff’s outlook and demeanour.

Medical Evidence for the Plaintiff

33. Quite a bit of the medical evidence for the plaintiff concerned ongoing treatment and its cost. At the hearing there was an agreed figure of $95,350.48 for past out-of-pocket expenses. Dr Baetz, the prosthodontist, recorded that teeth 11, 16, 21, 22 and 35 were damaged. He noted a maxillary jaw fracture with associated tooth movement and breakage of teeth. After orthodontic treatment had been completed, Dr Baetz performed the crown and bridge work. The cost of this was agreed. Dr Baetz said that post-orthodontic radiographs showed that the roots on teeth 12 and 25 were very short meaning the bridge may be lost in future. If that happened a bridge on two implants would be required. The current cost of two extractions, two implants and a three unit bridge including a temporary partial denture with three teeth was $18,598. There was other expert evidence that such an expense was likely to be incurred in the future.

34. Dr Juan, a general dentist, provided a report about the cost of that treatment, although I will accept the figure put forward by Dr Baetz who is the specialist. Dr Juan also gave evidence that active maintenance is necessary for the long term success of any dental prosthesis and that the following treatment would be required:

1. Oral examination, hygiene and fluoride every six months - $232 ($8.92 per week);

2. Gum and bone assessment every few years - $76 ($0.49 per week);

3. Intra-oral x-rays - $47 per year ($0.90 per week);

35. Dr Lionel Chang is a plastic maxillofacial surgeon who saw the plaintiff for medico-legal purposes. He noted the complaints of alternately dry mouth or excessive salivation. He also noted the scars on the left upper lid just under the brow and on the lower lip. He found the plaintiff to have malocclusion causing pain, difficulty with chewing solid food, numbness in the right upper lip, salivation problems, swallowing difficulties and facial scarring. Dr Chang thought that the plaintiff was fit for pre-injury duties.

36. Dr McGlynn is a plastic and reconstructive surgeon. He thought that the plaintiff was likely to be left with permanent malocclusion and difficulty with mastication. He also had permanent facial disfigurement.

37. For medico-legal purposes the plaintiff was assessed by Mr Anning, a consultant psychologist. The history he took was that the plaintiff was initially quite scared when he returned to sailing after his accident. The plaintiff said that he was a lot more apprehensive when sailing and that the sport had lost its excitement and it was now just a job. The plaintiff described becoming quite irritable and angry following his accident. He was frustrated because he knew that he was in the right and he was not getting any support. He became very depressed with low mood and was getting no enjoyment out of life. His mood lifted after he started sailing Hobie Cats. Mr Anning noted that the plaintiff had not received any psychiatric or psychological counselling. Mr Anning expressed the opinion that the plaintiff’s capacity for work in the sailing industry had been “significantly reduced”. Apart from noting the history of anxiety and apprehension, he did not offer any reasons for that opinion.

Medical Evidence for the Defendant

38. Professor Roessler, a prosthodontist, saw the plaintiff on 4 December 2017. He noted a number of sensitive teeth which were getting neither better nor worse. He noted the problem swallowing when the plaintiff felt like there was an obstruction. The plaintiff had loss of the feeling in his upper lip, had a wayward bite and occasionally bit his tongue. Professor Roessler expected that the crowns and bridge would require replacement once during the plaintiff’s lifetime.

39. The orthodontic treatment and opinion evidence tendered in the plaintiff’s case was basically confirmed by the defendant’s witness Dr Bachmayer in a report dated 8 January 2018. Dr Giles, a plastic surgeon, thought that the plaintiff did not require any further facial surgery.

40. The defendant sent the plaintiff to Dr Rees, a consultant psychiatrist, who saw him on 26 February 2018. The plaintiff told Dr Rees that he got no help from the sailing company and this was stressful. He said that the company made it untenable to continue work there. The plaintiff felt very emotional after the accident and felt very abandoned as well. By 2012 the plaintiff was struggling emotionally. He was not sleeping at night if he had to work the next day as he was worrying about how the company was going to treat him. The plaintiff was easily stressed in 2012 and 2013 and his mood was low a lot of the time. Buying a Hobie Cat in late 2013 was a turning point for him.

41. The plaintiff reported that the injuries to the face made him look different to how he used to look and that people who had not seen him for a long time tended to comment on this. Dr Rees offered the opinion that the symptoms in 2012 and 2013 met the diagnosis of an Adjustment Disorder. This was caused by the distress related to the accident and the rejection he felt from the company, and the stress of all the surgery and the appointments with doctors. The plaintiff drank excessively during that time.

42. Dr Rees thought that the Adjustment Disorder resolved by the end of 2013. She was not asked to offer an opinion about fitness for work.

Damages

43. It can be seen from the above review of the evidence tendered by the plaintiff and the evidence tendered by the defendant, that there was really no dispute between the various treating and medico-legal doctors. The plaintiff had frank injuries, from which he has made a good but not full recovery. He also had a significant emotional response, which has moderated with time but which has not left him.

44. The assessment of damages is governed by the provisions of the Civil Liability Act 2002 (NSW) (the Act).

45. By s 16(1) of the Act no damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. By s 16(3), if that initial threshold is reached, then damages for non-economic loss are determined in accordance with a table. That table converts percentages to dollars.

46. The injuries and disabilities suffered by the plaintiff are recorded above. I take into account not only the plaintiff’s oral evidence, and the histories given to doctors, but also the compelling evidence given by the plaintiff’s sister regarding the effects of these injuries upon the plaintiff’s state of mind and outlook on life. I assess the plaintiff at 31% of a most extreme case. In dollar terms this is the figure of $159,500.

47. Past out-of-pocket expenses are agreed at $95,350.48.

48. The evidence supports an award for the future replacement of crowns and the bridge. The current cost is $18,598. The 10-year deferral factor on the 5% tables is 0.614. For the future replacement of the crowns and the bridge the award will be $18,598 x 0.614 = $11,419.

49. In addition there will need to be regular check-ups as per the report of Dr Juan at a cost of $10.31 per week. A 62 year old male has a life expectancy on the Medium Life Expectancy Tables of 23 years. The 5% multiplier for 23 years is 721.2. The award for this component of future out-of-pocket expenses will be $10.31 x 721.2 = $7,436.

50. The total award for future out-of-pocket expenses is $11,419 + $7,436 = $18,855.

51. There is no claim for past or future gratuitous domestic assistance. The plaintiff does not get over the threshold in the Act.

52. A claim was made for past and future loss of superannuation. However, the plaintiff was self-employed at the time of the accident, and has remained self-employed, and would have remained self-employed even if the accident had not happened. In those circumstances he would have made his own arrangements for superannuation and as a contractor he would not have been paid superannuation by those who engaged him. There will therefore be no award for past or future loss of superannuation.

Past Economic Loss

53. The plaintiff was off work completely for some time after the first operation and after the second operation. In this time he was paid at his full weekly rate by the workers compensation insurer. Those payments totalled $10,217.20. That figure will be included in damages for past economic loss.

53. The plaintiff has been physically capable of working as a skipper, a crew member, or an instructor on sailing boats for some considerable time. His participation in the World Championship Hobie Cat races, and his skippering of a boat in difficult conditions in the Pittwater-Coffs Harbour race, demonstrate that.

54. However, I accept without reservation the plaintiff’s evidence that he wants to avoid working on Sydney Harbour because it is too busy, and that he does not want to take out charters of drunk males at night, because he finds it confronting to have to deal with them. The evidence of the plaintiff’s sister alone provides support for this. The plaintiff simply does not have the psychological strength that he had prior to the accident, when he could cope with anything thrown at him. I accept his evidence that for such charters he would have been paid $50 an hour for four hours per night. This means that he has forgone income of $200 for each charter he could have done. There was no definite evidence about how many of these jobs have been available.

55. The plaintiff never earned a high income. In the 2011 tax year, before the accident, his taxable income was $20,982 per annum. His income was lower than that in 2012, 2013, 2014, 2015 and 2016. His income only got back up to $21,893 gross in 2017. The income earned so far in the 2017/2017 tax year appears likely to go back down.

56. Doing the best I can I think that the plaintiff has probably lost $100 nett per week since the accident. In addition to the amount paid by the workers compensation insurer, there will therefore be an award for $100 per week for 343 weeks. This gives a total of $34,300.

57. The total award for past economic loss is thus $10,217.20 + $34,300 = $44,517.20.

Future Loss of Earning Capacity

59. I find that this loss of earning capacity will continue into the future. The plaintiff is aged 62 and thus has five years of working life left until the standard retirement age of 67. The appropriate 5% multiplier is 231.5. There will be a 15% discount for the vicissitudes of life. The calculation is $100 x 231.5 x 0.85 = $19,677. That will be the award for future loss of earning capacity.

Conclusions and Orders

60. The heads of damage which I award are as follows:

HEAD OF DAMAGE	AMOUNT
Non-economic loss	$159,500.00
Past out-of-pocket expenses	$95,350.48
Future out-of-pocket expenses	$18,855.00
Past economic loss	$44,517.20
Future loss of earning capacity	$19,677.00
TOTAL	$337,899.68

61. My orders are:

1. Judgment for the plaintiff against the second defendant for $337,899.68.

2. Order the second defendant to pay the plaintiff’s costs.

3. Liberty to approach my Associate within 7 days if either party seeks any different costs order.

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Decision last updated: 15 June 2018