Phillips v Woolworths (Queensland) Pty Ltd

[1999] NSWSC 678

CITATION:	Phillips v Woolworths (Queensland) Pty Ltd [1999] NSWSC 678
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	NR 600022/98
HEARING DATE(S):	23 June 1999
JUDGMENT DATE:	24 June 1999
PARTIES :	Sally Phillips v Woolworths (Queensland) Pty Limited
JUDGMENT OF:	Grove J at 1

COUNSEL :	B. Murray QC with G. Petty (Plaintiff) P. Crittle (Defendant)
SOLICITORS:	Pollack Greening & Hampshire (Plaintiff) Blake Dawson Waldron (Defendant)
CATCHWORDS:	Negligence - Industrial Accident - Supermarket - Employee slips on leakage from stacked chickens - Damages assessed
DECISION:	Judgment for plaintiff in the sum of $680,786.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Grafton: Thursday 24 June 1999

600022/98 - SALLY PHILLIPS v WOOLWORTHS (QUEENSLAND) PTY LIMITED

JUDGMENT

1    HIS HONOUR: In this action the plaintiff seeks damages from her former employer in connection with injuries sustained in an accident on 24 December 1996.

2    The plaintiff is a young woman born on 19 November 1976. She was educated at the Grafton High School where she completed her education sitting for the Higher School Certificate. Apparently she did not attain a very high mark in English, and this becomes relevant as she apparently did not achieve the level required to enter into a course for kindergarten teaching or child minding which was an ambition of hers. I mention this at present because whilst the ambition is the subject of reference in a number of places throughout the evidence there is nothing to found a conclusion that the plaintiff would eventually have achieved that ambition.

3    After leaving school she commenced to work full-time for the defendant in its supermarket, an occupation which she had pursued part-time whilst she was a school girl. In the light of all the evidence it seems reasonable to postulate any findings as to damages on a career in the employment of the defendant. As noted, the action had occurred on Christmas Eve. Although the pleading gives a different time I accept that it happened at about four or 4.30 in the afternoon. I am satisfied that the supermarket was very busy at that time.

4    The plaintiff on that day was rostered to work in the serving of customers in what is known as the delicatessen area. The store also makes available to the public chickens cooked on a rotisserie, those chickens also being available for sale in fresh form. The chickens are delivered to the store but require preparation, that is to say, the tucking of the wings into part of the carcass of the bird and the placing of the legs in a position so as to make rotisserie cooking possible. Other staff of the defendant had attended to this in relation to a large number of chickens. There is an estimate in the evidence that some 800 kilograms of chickens were stacked onto a three level trolley. The chickens are delivered in boxes containing about ten carcasses. After preparation they are returned into the boxes.

5    It has been observed that juices, blood and other fluid, leaks from the carcasses and although there is some plastic lining within the boxes it was a common experience for liquid to leak onto the floor. On the day in question this large accumulation of stock had apparently been standing in an area for about an hour. The preparation had been done and it was intended to move the carcasses back into the coolroom.

6    This task was to be performed by an employee Mr Darren Demmery. The movement of the trolley could not effectively or conveniently be done by him alone and he acquired the assistance of the plaintiff and one other female staff member to perform the move. Mr Demmery was pulling the trolley from one end and the two women were pushing from the other. The accident happened when the plaintiff's foot encountered leakage from the chickens which had been stacked on the trolley and she slipped and fell to the ground striking her knee.

7    I accept the evidence of Mr Simpson that the hazard encountered by the plaintiff could very simply have been avoided if the trolley had been fitted with a catch tray or any other simple gadget to prevent such leakage. Indeed the negligence of the defendant in the circumstances I have described is almost self-evident, as was recognised by counsel for the defendant when with some understatement he submitted that that the defence case on liability was not his strongest point.

8    After some objection I admitted a statement by Mr Darren Demery. That statement reveals that it was a common occurrence for liquid to drip through cartons onto the floor. The matter had been reported to superiors. I accept that evidence. Indeed it seems to me that a mesh trolley of the type depicted would inevitably allow such leakage onto the floor if it was stacked with items such as chicken carcasses.

9    A more focused submission was made by the defendant in relation to the assertion of contributory negligence. The defendant's case was based upon two aspects of the evidence principally. The first a concession in cross-examination by the plaintiff that she was not looking at the ground as she was walking and, the second, an exercise in motion physics derived by the defendant in cross-examination of the plaintiff herself concerning the location of her foot, the movement of the trolley and a consequent assertion, if one accepted her evidence precisely, that the single step forward she said she had made could not have brought her foot into contact without any leakage from underneath the trolley.

10    I do not accept that those concessions in cross-examination should be taken as literal measurements of what occurred. Quite obviously a motion was going on at the time. The existence of the spill from the trolley and its connection with the fall was evident in the defendant's own report to its insurer.

11    Mr Demmery saw what occurred. I accept the plaintiff's evidence in relation to it. Despite the concessions in cross-examination I am comfortably satisfied what happened was that the trolley began to move and the plaintiff stepped forward into the area where the trolley had been and her foot contacted the detritus on the floor causing her to fall.

12    In relation to her concession that she was not looking at the time, I do not find it a requirement of a prudent employee to cast her eyes to the floor in order to perform the task which she was asked to undertake on this occasion. I am not satisfied that the defendant has demonstrated that the plaintiff was herself a significant contributor to the accident or her consequent damage. There will be a finding of negligence as has been established but contributory negligence has not been established.

13    There will therefore by a verdict for the plaintiff undiminished by any discount for contributory negligence.

14    I turn therefore to the issue of damage. I should specify at the outset I have formed the impression that the plaintiff was a very vulnerable young lady. There is evidence that she was afflicted by what was described as dizzy spells and she gave evidence of occasions when she had, to use her description, hyperventilated. She consulted a medical practitioner and was told she suffered from stress.

15    These matters give some explanation to the rather tragic and extraordinary results from what must be described as a minor injury, but is of course of no benefit of the damages to the defendant which, it is trite to say, must take a plaintiff as it finds her.

16    The injury to the knee seems to have been minor indeed. The plaintiff's response to this minor injury seems to have been, and this is my description rather than that of any medical practitioner, almost hysterical. Regrettably, the evidence does not give me any psychiatric opinion as to this extraordinary and extravagant response to her minor injury, although I note that the defendant arranged for consultation and the plaintiff was examined by a psychiatrist called Dr Petroff, but no report from him was served. I infer that anything that Dr Petroff would have said would not advance the defendant's case.

17    I have said that the injury itself was minor, as I shall note in a few minutes time when I refer to the medical evidence, apart from a chrondromalacia nothing could be found that was wrong with the knee. An MRI scan showed total normality and indeed the disastrous situation of the plaintiff's knee is, in my finding, entirely due to her perception of pain and her inability to appreciate that there is no substantial injury in the physical sense to the knee. That is not to say that the syndrome that has developed has not now led to a situation where there is damage to the leg.

18    There is damage also to other parts of her body because to favour that leg she has hopped on her left leg causing damage there. She has back pain and contractures are developing.

19    In substance there is no real dispute amongst the medical examiners, the evidence of all of whom was received by way of reports tendered by consent. It is appropriate to extract some of the material from the reporting doctors.

20    The history of injury was that the plaintiff after bumping her knee during the fall worked on for about half an hour to the end of her shift. She was off work for the next four days during the Christmas break. She noticed her knee was swollen and she noticed it did not improve. She returned to work but it was not improving. She saw a locum of her general practitioner and later her general practitioner, Dr Terrey. Her complaints provoked him to refer her to Dr Hefner an orthopaedics surgeon and it was he in February 1997 who admitted her to private surgery for arthoroscopy.

21    It is convenient to take up the story, as it were, from the findings of Dr Hefner. He said:
"I could move the knee through all perfectly normal range of movements without any clunks and without any ligamentous problems. However I then went onto perform arthroscopy and found that she had a pristine knee in terms of menisci, cruciate ligaments and articular surface of the tibia and femur. There were no loose bodies.
Behind the medial facet of the patella there was a divot, like a long gutter with a flat tear in it on the articular cartilage. This obviously represented a chrondromalacia and could be caused by direct trauma, so I then undertook to use a chondrotome to smooth this off."
22    It might be observed that this finding was the only initial physical indication of injury that was detected by any examination until a later time when non-use led to the dystrophy. Indeed Dr Hefner in 1997 predicted what was to occur. Referring to his examination of the plaintiff during the ensuing year he added:
"When I saw her at that stage I stated to her that her leg had that motley blue colouring to it associated with non-use and I wondered whether she may have had a reflex dystrophy developing as a result of not using the leg."
23    Then (in response obviously to a question from the solicitors) he reported:
"It would appear from the fall that she had that she sustained some degree of damage behind the patella, however she has gone onto develop a reflex dystrophy of the knee and the only treatment required is prolonged time and encouragement to use it and walk upon it."

24    The tragedy to which I have made reference is that the plaintiff has not used or walked upon the leg. Her response has been such that she complains that even a drop of water falling upon the leg causes her pain. She refuses to allow medical examiners to touch her.

25    There is evidence of a relationship of a sort which she has with a young man called Smith who gave evidence corroborating the matters to which I have referred. It should be stated however that it was not suggested to the plaintiff that she was feigning or malingering these symptoms.

26    As I have already remarked, it would have been possibly helpful to have some psychiatric opinion, but it seems to me doing the best I can on the material before me that the plaintiff's reaction is likely to be found in her own personality as manifest in what I referred to as vulnerability.

27    The plaintiff has also been examined on a number of occasions by Dr Ian Chan an orthopaedic surgeon to whom she was referred to a second opinion. He confirmed that the plaintiff had suffered an autonomic dystrophy secondary to the injury to her knee when she slipped over at Woolworths. I note that in the course of his consultations with the plaintiff he reported that he told her not to stop using the leg, as to do so would worsen her situation.

28    Unfortunately, the plaintiff has not seemed to be able to comply with that advice. In a report dated 29 May 1998 Dr Chan said this:
"I said to Sally and her mother that definitely at this stage I have no reason to subject her to another operation as it may worsen her symptoms. She is still extremely tender in all areas of her lower leg. It is a shiny leg. There is some wasting of her calf which is not surprising and a blueness to it. She has however some tenderness in her back and as a back lesion may cause right leg pain and disability. I feel it would be worthwhile to investigate her spinal region to see if anything in particular may be found which might be causing her symptoms."

29    As I have said in passing, the non-use of the leg has as a secondary consequence provoked symptoms in other parts of the body particularly the other leg and the lower spine.

30    There is a report from Dr Gregory Carr a rheumatologist. This report was tendered both by the plaintiff and by the defendant. In the light of that unanimity it is perhaps worth quoting the final observations of Dr Carr. He said:
"She truly has had gross pain in her right leg and extreme sensitivity and temperature and colour alteration from this injury. She has not responded to sympathetic blockade. She is unfit for employment that involves any standing work. She would be fit to do some work in a sitting position. However of a part-time nature, say, beginning with about 12 hours a week. The prognosis is guarded. Only about 25 per cent cases of sympathetic dystrophy respond to any medical treatment and it certainly does not look as though Sally is going to respond. It may take seven to ten years for the effect on the nervous system to slowly abate. The ultimate prognosis is uncertain. There is a direct relationship between her fall onto her right knee and her ongoing right leg symptoms. There is an indirect nexus between her low back, left leg symptoms and the aches and pains in the hands, shoulders and wrists as these have occurred as a compensation for long periods of weight bearing on one leg and the use of crutches."
31    Next I should refer to a report tendered by the plaintiff of Dr Miller a specialist and general surgeon. He noted it was extremely difficult to examine the plaintiff as she would not allow him to touch her leg. She complained that even slight tactile stimulation caused extreme pain. Dr Miller reported in part this opinion:
"As a direct result of a fall at work this lady injured her right knee. She unfortunately developed the serious complication of reflex sympathetic dystrophy. She has had all the known treatments for this condition and has failed to respond to date.
From the appearance of her right lower limb now she appears to be developing a fixed flexion deformity of her right ankle and right knee and considerable muscle wasting of the quadriceps and calf musculature.
Even if her reflex sympathetic dystrophy resolves in the future it is apparent that she will be left with a useless right leg due to the development of contractures in her right ankle and right knee joints.
It would appear that the compensatory overuse of her left leg and lower back are leading to further symptoms. In regard to her back she has congenital scoliosis and it is clear that the continued use of crutches and favouring of the right leg is beginning to cause her back symptomatology."
32    The final medical opinion to which I will make reference is a report from Associate Professor Jones which was tendered on behalf of the defendant. A quotation from his report will confirm my earlier statement that there is in essence no real issue about the medical situation of the plaintiff. Professor Jones stated in his conclusion:
"Miss Phillips suffered what would seem to have been a minor accident in an industrial accident on 24.12.96 following which she developed disuse atrophy of her right leg and a reflex sympathetic dystrophy. At this time she is not in any treatment program, her condition is not improving and there is little functional use of her right leg which she holds in a position of flexion contractures. I believe her to be independent in personal care and many activities of daily living principally as a one legged person and she would have potential to undertake vocational pursuits of a clerical capacity. Her condition as described is one of reflex sympathetic dystrophy - the cause of which in this instance is difficult to determine.
Unless she comes to terms with her perceptions of impairment and uses her right leg then it will become progressively atrophic, contracted and useless and pain will increase ultimately leading to rather radical decisions of management."

Further Professor Jones remarked:
"Vocational rehabilitation will benefit Miss Phillips if she can live with her impairments and hopefully improve the function in the right leg. If she does not, the condition will deteriorate. Psychological support and a pain management program encouraging her to use her right leg would be an appropriate form of therapy over at least a twelve month period. Unless the outcome is favourable there are dire consequences. At this time she may require approximately three hours of domestic assistance per week on the basis of her perceptions of impairment and the reduced function in the right leg."

33    As I have indicated, I generally accept the medical evidence. The situation is that there is a relevant causal nexus between the plaintiff's present impairment and condition and the accident.

34    I turn therefore to deal with the individual ingredients of damage. The out-of-pocket expenses and workers compensation entitlements amount to $40,120.00. There is a submission made on behalf of the plaintiff that by reference to wages earned by Miss Cole, an asserted comparable employee at Woolworths, that the plaintiff would have earned if she remained in the employment between the date and the tort $42,641.00. There was no contesting submission made on behalf of the defendant suggesting other than that I should include that amount in damages. In any event independently I find that should be included in the award. Thereby an ingredient of $42,641.00 for economic loss to date is included.

35    I turn then to the issue of future economic loss. The evidence to which I have made some reference talks of the chance of resolution or improvement but also of the permanent damage that is being done by reason of the non-use in the period to date. The plaintiff of course could be viewed in terms of analogy as a one legged person. That injury does not render the victim totally unemployable.

36    I note that in one of the opinions that I have recited there is reference to commencing at something like 12 hours per week of sedentary employment. The implication is that that number of hours may increase over the years in the future. On the other hand, I have to take into account the predictions so eloquently made by Professor Jones that if the plaintiff cannot come to terms with what is required of her the consequences will be dire.

37    The plaintiff has advanced a submission that if one took what I take to be the present wages of a comparable employee of $388.00 and projected that over a working life of 42 years using a multiplier of 931.6 there would be capitalization at $361,460.00.

38    There was tendered a series of sheets of wage records and I infer that the submitted figure of $388.00 was extracted therefrom. No submission was made by the defendant that that was an inappropriate figure to use and I adopt it accordingly.

39    Senior counsel for the plaintiff recognising that some allowance had been made for vicissitudes and also some exercise of residual capacity tendered and spoke to a written submission in which it is suggested that I should take from the calculated sum that I have mentioned the almost conventional 15 per cent and then from the resultant figure deduct a further 15 per cent to represent residual capacity.

40    I note in passing that that two-stage deduction leaves a larger figure to be notionally awarded as damages than if 30 per cent was taken from the original figure. That is merely a matter of arithmetic.

41    I have indicated that I regard the plaintiff's future as probably bleak. However I cannot find that she is entirely without prospect of performing any work and therefore income producing over the next 42 years of her life. The lastmentioned like other one-legged persons to use the analogy that I have taken.

42    There must be a scope of activity, if she chose, she could undertake. I have to take into account that although she sat for Higher School Certificate her academic achievement has apparently not been high. There are vocational assessments made by psychologists and also some mention of such matters in a report from an occupational therapist Miss Berger to which I will make later reference.

43    Doing the best I can between the parties, I regard it as appropriate to use as an initial guide the full figure for total loss of employment with the defendant until a notional retiring age 42 years hence and I propose to deduct one-third to allow for adverse vicissitudes and any residual capacity that the plaintiff may choose to exercise during the balance of her notional working life.

44    If one takes one-third from the base of figure of $361,460 there is left $240,973.00 and I propose to include that sum as an ingredient in the damages.

45    The parties are agreed that I should include in the damages the sum of $4,000 to avoid the detriment to the plaintiff identified by the High Court in Fox v Wood .

46    I turn next to a claim made for future treatment. The plaintiff gave evidence that she visits her general practitioner several times a month and also obtains renewals of prescription for Panadeine Forte on a monthly basis. It would appear that is the only medication which she takes.

47    As is implicit in the medical material and in those parts which I have recited, it does not appear that the plaintiff has been able to respond positively to the medical advice that she has received. In this claim for future treatment reference is also made to expenses for pain management and for counselling. A schedule of payments shows that, for example, a lump sum of $5,000 was paid by the workers compensation insurer in respect of pain management.

48    The expenditure on counselling is a matter which is somewhat obscure. I can only conclude that whatever counselling has been given it has not been sufficiently effective to persuade the plaintiff to undertake the use of her leg as unanimously has been advised to her by the range of medical practitioners whom she has seen.

49    The other item which it is sought to include in that ingredient of compensation is the additional cost of motor vehicle apparatus in order to place the accelerator on a vehicle so that the plaintiff can use her left foot. It seems to me that given the whole of the circumstances that is a reasonable response in the plaintiff's case; that is to say, that such modifications should be made to any vehicle that she owns.

50    The figures taken in the conventional way from the report from the NRMA brings the cost down to an estimated weekly amount of $10. The cost of attendance upon a general practitioner and the purchase of medication has been for these purposes reduced to an average expenditure of about $13 per week.

51    As evidenced, the expenditure if it is to be made in the future on pain management counselling is somewhat obscure. Then there is the $10 per week for the motor vehicle. As is obvious from simple additions, there is a base figure, ignoring the pain management and counselling, of some $23 a week.

52    The next problem to contemplate is how far into the future that expenditure is likely to extend and how long the plaintiff is likely to make such expenditure as a result of reasonable response to tort induced need.

53    In the written schedule to which counsel spoke in submissions a claim is made for a round sum of $50,000 although it would seem to be the product of divination as much as arithmetic.

54    I am unable to be persuaded as a question of probability that the plaintiff's expenses will continue at that, that is $23 per week plus a sum for pain management over the balance of her life expectancy. My task is to award a figure which in judgment is fair to the parties but which reflect the consequences of the tort committed by the defendant. I observe that if I increased the figure of $23 to $25, that is to say a $2 a week increase, and gave the plaintiff that sum for the next 25 years capitalisation at a five per cent authorised factor of 783 would produced a lump sum of $19,575.00. In my view a round sum of $20,000 would be appropriate for this ingredient of damage.

55    I performed the mathematical exercise merely to give myself some guidance as to what a lump sum of $20,000 will represent. That figure will be included in damages for future expenditure.

56    I now turn to a claim for domestic assistance. I have found this a most difficult task in the light of the evidence in this case. On the one hand, one has the comment of Professor Jones, that at the moment unspecified domestic assistance could be assessed as something in the order of three hours per week.

57    Evidence was called from the plaintiff's father. He testified that they not only fetched and carried for the plaintiff but did everything for her. He gave this evidence:
"Q. Do people fetch and carry for her?
A. Everything. We literally do everything. If she wants a cup of coffee or a cup of tea we have to make it for her. We have to carry it for her because having to use the two crutches she is incapable of balancing the cup, so if it is hot, obviously the water might spill out of the cup and scald her, if it is hot, so we have to do everything. She may have Weetbix in the morning and put milk on it and we have to physically take it over and put it down for her because she can't carry it and put it down once again.
Q. Things like washing and ironing?
A. Incapable. Once again she could not stand long enough to do it.
Q. Making her own bed?
A. Incapable.
Q. Things like helping with the vacuuming or cleaning the bathroom?
A. Not a chance at all. Once again she used to do it prior to the accident. We could get up in the morning and she would already have a load of washing on but nowadays, no."

58    As evidence it appears to me, from that passage in particular, the father has responded by treating the plaintiff as an invalid. I do not regard his evidence as sincere and it is tinged by exaggeration. The reference to the Weetbix has a flavour of the absurd about it. The plaintiff is perfectly capable of sitting at a table and if the Weetbix is on the table and the milk is there she can prepare her own breakfast. The need for walking around with the bowl is, in my view, an imaginative effort by the plaintiff's father to exaggerate the level of her disability.

59    I observe that the plaintiff's mother was not called and I infer that her evidence would not have assisted the plaintiff's case.

60    There is however another source of evidence concerning the need for services and that is in the report of the occupational therapist Miss Berger. I do not recite the various items that Miss Berger has collated as these can be read in her report. However in final conclusion she made this observation:
"It is considered that Miss Phillips is not able to provide such services for herself. It is estimated that the family provide about ten hours per week in meal and snack preparation, 15 to 20 hours per week in household cleaning, six hours per week in laundry tasks, two hours per week in grocery and personal shopping, one hour per week in garden maintenance and daily driving of at least 30 minutes with occasional driving over several hours. The family and friends undertake to provide constant companionship."

61    Part of my task is to sit as a tribunal of fact. I do not accept that in the context of any reasonable single human being's existence something in the order of 21 to 26 hours per week each and every week 52 weeks a year for the balance of their life is spent performing the task of laundry and household cleaning. Any dedication or devotion to this extent would produce pristine accommodation for that single person to a quite remarkable extent.

62    I regard Miss Berger's estimates as beyond the limits of reasonable response to tort induced need. Perhaps the extravagance of Miss Berger's opinion was recognised by counsel who advanced a claim based on a total of 28 hours per week for the entirety of the provision of services.

63    There was also tendered a separate quote from a person who would provide lawn mowing services. The plaintiff's situation is that she resides at home with her parents. She is of course entitled to leave home in due course but there is no evidence as to whether she would live at home or go to a home or flat or apartment or anything else.

64    I am however satisfied that given the plaintiff's disabilities, particularly as perceived by her, that she has established that it would be reasonable to provide her with some form of assistance. The question is how I should measure that. As I believe would be apparent from my earlier remarks, I do not accept as a basis for calculation either the evidence of her father or the evidence of Miss Berger. On the other hand, I do not accept the evidence of Professor Jones unembellished as it is as to any description of services that the professor had in mind. My task is to award damages of course and not to look into a crystal ball and establish what it is the plaintiff will have provided for her over the balance of her life, the expectancy of which would appear to be in the order of 58 years.

65    In order to provide myself a basis for determining an appropriate figure I have elected to perform the following calculation. I do not suggest that is what will happen in the future but it seems to me to represent a reasonable way of making an estimate of what should be included in the damages for this ingredient of loss. If one were to hypothesise that the plaintiff were supplied with what in effect amounts to a servant for two working days seven days a week each and every week for every day of her life and that person was to provide all services or every other need that the plaintiff cannot fulfil herself and take the rate of $15 per hour, one can perform a calculation of 14 hours per week at $15 by 1006, that is the factor referrable to a life expectancy of 58, and produce a lump sum of $211,323.

66    In the submission advanced on behalf of the plaintiff, which was done on a different calculation, I was invited to discount that calculation by 15 per cent. It is not in my view appropriate to discount damages calculated in this fashion for adverse vicissitudes.

67    I have for guidance performed the sum earlier mentioned and propose to include $211,311.00 in damages for future assistance of the nature that I have specified.

68    Finally, in terms of the ingredients I come to the issue of non-economic loss. My task is to assess the plaintiff's disability in terms of a proportion of a most extreme case. The figure referable to a most extreme case is $221,650.

69    Whilst, as I have said, the initial injury to the plaintiff was minor the consequences have been the reverse of that. The defendant is not in a position to obtain any benefit from the circumstance that it is the plaintiff's apparently peculiar vulnerability that has led to the horrendous consequence to her leg.

70    I have come to the conclusion that her overall situation represents 65 per cent of a most extreme case and according to the proportionate table therefore the ingredient to be included in the damages would be $144,072. The ingredients which I have thus far calculated can be tabulated as follows: Out of pocket expenses $40,120; economic loss to date $42,641; future economic loss $240,973; Fox v Wood $4,000; future expenses $20,000; future assistance $211,323; and non-economic loss $144,072.

71    In tabulating those amounts I have observed that I have omitted to include in the damages a claim for assistance in the past. That amount would be calculated over the period of 132 weeks at the rate which I used for guidance namely $15 per hour for 14 hours per week. There should therefore be included in the damages $27,720 for services to date. The total of the ingredients thus far is $730,849.00.

72    The defendant pleads payment in accordance with the appropriate statute to the extent of $72,421.00 and I find the defence of payment made out to the extent of that figure.

73    It was foreshadowed that the plaintiff would make a claim for loss of employer contribution, loss of superannuation benefits in the future, but such claim could not be formulated until my findings were known. It was also foreshadowed that depending on my findings there would be a finding for interest according to the terms of statute. Accordingly I allow liberty to apply in respect of those issues and I reserve judgment.

PETTY: We have reached agreement as to the past and future superannuation entitlements based on your Honour's findings. We propose to give the two contingencies if you would tender subsequently a typescript of the calculations that underpin the two agreed sums?
HIS HONOUR: That seems sensible.
PETTY: The total amount is $22,358.00.


74    HIS HONOUR: I have been informed by the representatives of the parties that for the purposes of calculation it has been agreed, derived from the findings which I have just announced, a calculation can be made of the loss of employer contributions both past and present an amount of $22,358.00. I give leave to the parties to tender and tender in evidence a sheet showing that amount was calculated in order that there might be a reference point in the order that this point is taken elsewhere.

75    I am informed there is no application in respect of interest. The amount of my sum including the mentioned sum is $753,207.00. In accordance with the plea made good as to payment there should be deducted the sum of $72,421.00, leaving a figure of $680,786.00.

76    I direct entry of judgment for the plaintiff for $680,786.00.

Any application as to costs?

PETTY: I seek an offer of compromise - the relevant date was 1 April 1999.
HIS HONOUR: Is it agreed that the offer was less than the result.
DEFENDANT: Yes.
PETTY: There is no 10 per cent as far as costs. It only arises if it is a photo finish. This is not a photo finish. I will tender the offer of compromise.
EXHIBIT #P OFFER OF COMPROMISE TENDERED, ADMITTED WITHOUT OBJECTION.

77    HIS HONOUR: I order the defendant to pay the plaintiff's costs of action such to be on an indemnity basis from 1 April 1999.

PETTY: The last thing is two counsel including two senior counsel.
HIS HONOUR: I do not have any power do that. That is only in the District Court. In the Supreme Court it is not a matter that is certified. In this case I am asked to certify for two counsel. I am conscious of the provisions as to certification of counsel which to my memory used to exist in the District Court, although I have not looked for those rules for many years now. I am not directed to any rule of the Supreme Court. But however for the costs assessor I would express the view in the light of the very particular and potentially difficult issues of damages in this case that it was an appropriate case for the retainer of senior and junior counsel.


**********

Last Modified: