Pareezer v Coca-Cola Amatil - [2004] NSWSC 1263

NEW SOUTH WALES SUPREME COURT

CITATION: PAREEZER v COCA-COLA AMATIL [2004] NSWSC 1263

CURRENT JURISDICTION:

FILE NUMBER(S): 20018/00

HEARING DATE{S): 16 November 2004

JUDGMENT DATE: 23/12/2004

PARTIES:
Craig Douglas Pareezer
Suzanne Joy Pareezer
Scott Craig Pareezer
Coca-Cola Amatil (NSW) Pty Ltd

JUDGMENT OF: Hulme J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Plaintiff: J Rowe: J Darvall
Defendant: MA Elkaim SC: A Bowen
Pareezer Transport P/L M Cochrane
GIO: R Ferrari

SOLICITORS:
Heazlewoods
Henry Davis York
Kevin O'Kane
Thompson Cooper

CATCHWORDS:
Future out-of-pockets
Costs

ACTS CITED:

DECISION:
See Judgment

JUDGMENT:

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HULME J

Thursday 23 December 2004

20018/2000
CRAIG DOUGLAS PAREEZER v COCA-COLA AMATIL (NSW) PTY LIMITED
JUDGMENT

HULME J: In these proceedings, a claim for common law damages, I delivered my principal reasons on 10 September last. I delivered reasons on the issues of economic loss and one component of a Griffiths v Kirkemeyer claim on 15 November last, and subject to one matter, leaving it to the parties to calculate the damages in accordance with findings of fact and other conclusions I then expressed. The reservation arises from the fact that on that day counsel for the Defendant claimed that an issue of future out-of-pocket expenses had not, as I had thought, been the subject of agreement or at least acquiescence and still needed to be resolved. Counsel for the Plaintiff accepted that it should be decided and it is that topic to which these reasons are principally directed. There is also an issue of costs.
Both topics have been the subject of written submissions, those of the Defendant in reply being dated 15 December last and those of Sixth Cross Defendant arriving only after prompting on 21 December.
Future Out-of-Pocket Expenses
Past out-of-pocket expenses were agreed in the sum of $268, 659.76. In Exhibit AX there was some break-up of this sum but because one of the components was described as “GIO Workers Compensation re treatment expenses - $242,077.46” the break up is hardly informative so far as the present issue is concerned.
The claim for future expenses was:-
Chemist per week  $45.22
Medical per week  217.50
TOTAL  $262.72
3% Multiplier  1,224.20
               TOTAL   $321,621.82
Future Surgery  $92,646.00
               Hospital and theatre, estimate              $10,000.00
The amount claimed for future surgery was an estimate provided in a report by Dr Coren which was Exhibit AQ in the proceedings.
There was no evidence quantifying the further claim of $10,000. However in Dr Coren’s report he indicated also that there would be additional hospital costs and theatre fees for two 3 day stays, and two further hospital stays of unstated duration and theatre fees. Dr Coren specified The Hills Private Hospital as the place where these fees would be incurred. Dr Coren also indicated that some of the Plaintiff’s treatment to the time of trial had been at that hospital. There was no challenge to any of this evidence and in these circumstances it seems to me that I am entitled to infer that admissions to hospital are likely to occur as indicated, and that the hospital nominated is a reasonable choice. As a tribunal of fact, I am also entitled to use my general knowledge of the world. That knowledge leads me to the view that 4 stays at a private hospital, including theatre fees, are likely to cost at least the sum of $10,000 claimed. I do not need to rely on it but I take the view also that I would be entitled to take into account general experience in the Court in actions such as these. That experience tends to reinforce the conclusion just expressed. Accordingly, subject to any issue of deferral, the $10,000 is also allowed. I should perhaps add that the Plaintiff gave evidence that he intended to undertake the surgery which he had been advised to undergo.
In its original submissions in support of the claim for non-surgical future out of pocket expenses counsel for the Plaintiff asserted that these were calculated by reference to the current out of pocket expenses and using the 3% multiplier for the rest of the Plaintiff’s life. In its submissions of 15 October 2004, the Defendant referred to numerous aspects of the evidence, submitting that they did not establish the quantum claimed, acknowledged that the Plaintiff would have some future expenses of this nature but submitted that no larger sum than $50,000 could be allowed without substantiating evidence.
The Plaintiff’s counsel replied by saying that working papers calculating the weekly rate had been prepared at the time of hearing but had since been lost, that the Court was required to take into account any changes between hearing and judgment and with the stance that, given the passage of time, “we should recalculate the Plaintiff’s claim in light of Your Honour’s findings and changed circumstances” and “Calculation of out-of-pocket expenses would be of more utility if made on the basis of costs actually incurred since date of hearing”. There was no further attempt to justify the claim by reference to the evidence given at trial, nor was application made to re-open.
The Defendant responded by objecting to the Plaintiff reopening his case and foreshadowing the possible need to call further evidence if reopening was allowed. The Defendant reiterated that, absent reopening, the evidence was scant.
It is not appropriate to implicitly allow the Plaintiff to reopen and accordingly I disregard the further evidence which accompanied the Plaintiff’s submissions. Accordingly, without the benefit of assistance from the Plaintiff’s side as to the existence and whereabouts of evidence to support his original claim, I shall do my best.
There was an account of the Plaintiff’s current visits for physiotherapy and the like in the report of 16 January 2003 contained in Exhibit AV. However that report was not admitted as evidence of the truth of such matters – see T591 - and accordingly I ignore this material.
Evidence, largely included in Exhibit AQ, which does suggest, to put the matter no higher, the need for future medical care includes the following:-

Dr Zaman	18/7/02	(He) does see me once annually for counselling and medication, painkillers and anti-depressants. He is going to need continuing further medical, surgical and psychiatric help … for the rest of his life
Dr Subhas	29/9/98	(He) is emotionally crippled for life. (He) would need ongoing counselling and he would need to continue Anti-Depressants for a while.
Dr Subhas	25/6/02	Between 10/10/97 and 12/6/02 I have seen Mr Pareezer on 64 occasions. He has chronic pain, headaches and nightmares. He suffers from Chronic PTSD. For the last 3 years and now he has been taking Aropax. He will need ongoing support. He has been permanently crippled physically and psychologically.
Dr Rea	19/5/98	Unusual deposit of fat and skin under chin could be dealt with by liposuction – cost about $2,200. Liposuction for abdominal fat sought – cost about $2,900
Dr Rea	3/2/99	Liposuction of abdominal fat has been done
Dr Rea	22/11/00	Liposuction of neck has been done Plastic surgery to tighten facial skin would cost about $5,000
Dr Rea	17/12/02	Liposuction of neck could be repeated at cost of $3,300.
Dr Rail	6/3/00	He needs to start prophylactic Propranolol for migraine
Dr Rail	28/3/00	He should go onto 3 Inderal a day for headaches
Dr Hawthorn	11/9/98	Prosthetic implants etc $15,070 plus Dr Coren.
Dr Evans	16/10/98	A number of teeth at risk. These will require ingoing review and maintenance and possibly a crown
Dr Blackler	5/11/98	5 teeth may need ongoing work. Cost of the smaller types of work is about $650-$670. Status of all remaining mandibular teeth needs to be monitored.
Dr Blackler	7/1/03	Prognosis for 2 teeth is definitely uncertain – may have to have implant replacement
Dr Cook	28/10/99	Plaintiff has psoriasis – will probably be difficult to control. Therapy is expensive.
Dr Cook	28/11/02	Still suffering from psoriasis. Probably some there before shooting but the shooting has made it worse.
Mr Chen	21/3/03	Strong analgesic taken to deal with weekly migraine Treatment will continue to be needed approximately every 10 days

The Plaintiff gave evidence that he suffers badly from headaches. There is constantly a dull headache. Others, I infer more severe, are suffered 3 to 4 times a week, with a migraine at least once a week – T42, 117. For these he often takes Mersyndol Forte and a new drug the name of which he could not give.
The Plaintiff said that he had been advised to clean his mouth as many times as possible, up to 8 or 10 times a day. In connection with his mouth he had special toothpastes, mouth washers, and saliva sprays.
The Plaintiff said that he was taking medication for headaches, pain killers for different parts of his body, antidepressants, tablets for his stomach and “some different types of medications for different things”.
The Plaintiff said he was seeing Dr Subhas, the psychiatrist, once a fortnight and saw his GP once or twice a month adding “He just keeps track of what's happening, there's not much more that can be done now anyway”.
I am not conscious of any other significant evidence relevant to this claim. Thus I am not conscious of any evidence as to how often the Plaintiff takes or uses the various medications which have been referred to or as to what they cost. However, again I regard myself as entitled to use general knowledge of what some medications, e.g. Panadeine and other headache tablets cost and that stronger analgesics, such as Mersyndol Forte are more highly priced. I regard myself as also entitled to use common experience that medications do tend to be expensive, although also that concessions are available to some members of the community.
The medications referred to or likely to be involved in treatment of the various conditions are numerous. In that situation it seems to me that I am justified in inferring a weekly cost of at least $30 per week.
General experience is somewhat more limited in the case of medical expenses although there is also the general experience of work in the Common Law Division which can be relied upon. Recognising that the onus is on the Plaintiff, the evidence to which I have referred and this general experience leads me to the following approximations as to some consequences of the shooting.
(i)The Plaintiff will need resort to a GP throughout his life. I expect this resort will lessen and, long term, will not be more frequent on average than about once every 2 months.
(ii)The Plaintiff will need resort to psychiatric assistance throughout his life. However, I expect this will lessen and probably be only intermittent once about another 3 years have passed. The cost during the 3 years is likely to be $150 per consultation which, on past history, will be about once a month – in round figures $5,000.
(iii)The Plaintiff will continue with the chiropractic treatment for some time – say 2 years and probably have occasional resort to it thereafter. The cost during the 2 years is likely to be of the order of $3,500 ($50 per visit).
(iv)The Plaintiff will probably undergo the skin tightening and further liposuction. What he has done pre-trial in this latter area leads to this inference even in the absence of express evidence. The cost will be at least $8,300 and will be incurred sooner rather than later.
(v)He is certain to need further work on his teeth and mouth and this is likely to be on a number of occasions. Commonly teeth repairs, such as crowns, have to be redone at least once in a person’s adult lifetime and given the extent of repair work which has occurred in the Plaintiff’s mouth, future work is likely to be extensive. My understanding of the costs figures given by Dr Coren and in Dr Hawthorn’s report are directed to what I may refer as a first time repair, albeit it has been spread over a number of operations. I would allow the $15,070 referred to by Dr Hawthorne (which I understand to be additional to the costs referred to by Dr Coren) and expect this to be incurred soon and something of the order of another $50,000 spread over the Plaintiff’s lifetime.
I have referred to the above propositions as “approximations”. Events or work of the nature referred to in them seems to me very probable and I would regard the extent of work referred to in the last sub-paragraph as probably also answering this description. Other matters are less certain and it is probable that there will be some swings and roundabouts.
Given the uncertainties, on this topic of future medical expenses, I think the best way of allowing damages is to adopt the Defendant’s proposal of a lump sum. It will be additional to the other amounts to which I have referred and more than the $50,000 suggested by counsel for the Defendant. That is why I have thought it desirable to provide some indication of my thinking, although recognising the imprecision. Conscious that not all the costs to which I have referred will be incurred in the immediate future, the amount I would allow is $75,000.
Thus the amount I would allow for future out-of-pocket expenses is the total of:-
$92,646 + $10,000 + $75,000 + ($30 per week by the appropriate multiplier)
Costs
A second matter which has been the subject of further submissions is costs. As recorded in the transcript of 16 November, leave was given to Mr Cochrane, who appeared for Pareezer Transport Pty Ltd to put on submissions in relation to the costs of the Sixth Cross-Claim, i.e. that by Pareezer Transport Pty Ltd against GIO Workers Compensation (NSW) Pty Limited and to Mr Ferrari, who appeared for the GIO Workers Compensation (NSW) Pty Limited to reply.
Mr Cochrane’s submission, dated 22 November 2004 was that each party should pay its own costs of the Sixth Cross-Claim. The principal ground advanced was that Pareezer Transport Pty Ltd was brought into the proceedings by Coca-Cola Amatil’s Second Cross Claim wherein it was claimed that the Plaintiff was employed by Pareezer Transport Pty Ltd and the joinder of the GIO was because the latter had issued a Workers’ Compensation Policy to Pareezer Transport Pty Ltd. In short the Sixth Cross-Claim was simply a reaction, perhaps natural, to Coca-Cola’s claim.
On behalf of the Sixth Cross-Defendant, Mr Ferrari sought an order for costs in his client’s favour, submitting that the Sixth Cross-Claim was founded on a falsity, i.e. that the Plaintiff was an employee or worker of Pareezer Transport Pty Ltd and that in any event the Second Cross-Claim was inspired by the Further Amended Statement of Claim wherein it was alleged that Pareezer Transport Pty Ltd employed the Plaintiff. I do not find it necessary to deal seriatim with these submissions.
The reason why the Sixth-Cross Claim failed was that I held that the Plaintiff was not a worker or deemed worker of Pareezer Transport Pty Ltd. The facts which led to his conclusion, although somewhat obscured by the lack of organisation within Pareezer Transport Pty Ltd were, or should have been, all within the knowledge of the company. The Sixth Cross-Defendant has no responsibility for the Sixth Cross-Claim and the costs of this cross-claim should follow the event.
The Sixth Cross-Claimant should pay the Sixth Cross-Defendant’s costs of the Sixth Cross-Claim.
Mr Cochrane put in a second set of submissions, also dated 22 November 2004, contending that the costs of the Second Cross-Claim, i.e. by Coca-Cola against Pareezer Transport Pty Ltd, should follow the event.
The response on behalf of Coca-Cola Amatil Pty Ltd was that:-
(i)the Second Cross-Claim was essentially based on the Plaintiff being an employee of Pareezer Transport Pty Ltd,
(ii)I found the Plaintiff was not an employee and that the Plaintiff’s claim for worker’s compensation as such an employee was a “falsity”,
(iii)Coca-Cola Amatil should not have to pay the costs of Pareezer Transport Pty Ltd of which the Plaintiff is a director where “the basis for proceeding against (Pareezer Transport Pty Ltd) stemmed from the dishonest actions of the Plaintiff himself”, and
(iv)At the very least each party to the Second Cross-Claim should pay its own costs.
The proposition in sub-paragraph (i) above does not fairly represent the claim made by Coca-Cola Amatil against Pareezer Transport Pty Ltd, which claim is more fully summarised in paragraphs 269 to 271 of my principal Reasons. The same may be said of the proposition quoted in sub-paragraph (iii). I see no adequate reason why the usual rule of costs following the event should not apply to the Second Cross-Claim which failed.
The Second Cross-Claimant should pay the Second Cross-Defendant’s costs of the Second Cross-Claim.
I turn now to the other cross-claim. As I said in my principal Reasons, the First, Third and Fourth Cross-Claims have been resolved. There remains the Fifth Cross-Claim. It was by Coca-Cola Amatil against GIO Workers Compensation (NSW) Limited and based on a policy said to have been issued by the latter to Coca-Cola Amatil. The claim failed. Again, there is no reason why the ordinary rule of costs following the event should not apply. There were indeed no submissions to the contrary.
The Fifth Cross-Claimant should pay the Fifth Cross-Defendant’s costs of the Fifth Cross-Claim.

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LAST UPDATED: 23/12/2004