Puca v Nguyen - [2002] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PUCA -v- NGUYEN [2002] WADC 40

CORAM: DEANE DCJ

HEARD: 8-10 OCTOBER 2001

DELIVERED : 1 MARCH 2002
(Corrected 8 March 2002 pursuant to O 21 r 10 Rules of the Supreme Court)

FILE NO/S: CIV 2221 of 2000

BETWEEN: DOMENIC PUCA
Plaintiff
AND
TANG LOI NGUYEN
Defendant

Catchwords:

Damages - Assessment - Personal injury - 53 year old maintenance worker/truck driver - Soft tissue injuries to cervical and lumbar spine - Soft tissue injury to right shoulder - Whether plaintiff suffered any pre-existing condition in these areas - Whether plaintiff retains any residual earning capacity - Damages for past and future loss of earning capacity - Section 3C Motor Vehicle (Third Party Insurance) Act 1943 - Award for non-pecuniary loss - Future medical expenses - Special damages

Legislation:

Nil

Result:

Damages assessed

Representation:

Counsel:

Plaintiff: Mr T H Offer
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Vincent & Partners
Defendant: John G Staude

Case(s) referred to in judgment(s):

Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Southgate v Waterford (1990) 21 NSWLR 427

Case(s) also cited:

Keen v Mackay [1999] WASCA 193
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Cullen v Trappell (1980) 146 CLR 1
Fox v Wood (1981) 148 CLR 438
Husher v Husher (1999) 197 CLR 138
Thomas v O'Shea (1989) A Tort Rep 80-251
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

DEANE DCJ:

Introduction

In this action the plaintiff claims damages from the defendant for injuries suffered by him in a motor vehicle accident which occurred on Reid Highway near Midland on 25 November 1998. The defendant admits liability for the accident insofar as it relates to the defendant's negligence but denies that the plaintiff is entitled to the damages claimed or any damages. In the alternative the defendant asserts that if the plaintiff suffers any symptoms or residual disability in his cervical or lumbar spine it is by reason of pre‑existing degenerative spinal disease or injuries sustained as a result of a motor vehicle accident in which the plaintiff was involved on 24 June 1988 and not the motor vehicle accident the subject of this action. It is further submitted on behalf of the defendant that if the plaintiff suffers symptoms or disability in his right shoulder that is by reason of an injury which it is said the plaintiff sustained in the course of his employment in or about August 1998 and not as a result of the motor vehicle accident on 25 November 1998.
The plaintiff claims for loss of amenities, past and future loss of earning capacity, special damages and cost of future medical treatment.

Plaintiff's personal circumstances and work history

The plaintiff was born in Italy on 27 June 1948 and so he is now currently 53 years of age. He left school when he was 14 years old and became involved in the bricklaying trade. In May 1969 when Mr Puca was nearly 21 years of age he arrived in Western Australia and found immediate employment at Swan Scouring in Fremantle, where he remained for approximately three months until he found an outdoor job installing cyclone fencing for approximately six months. He then found work as boilermaker which he carried out for 10 or 11 months. After marrying his wife in February 1973 the plaintiff joined his father‑in‑law's bricklaying business.
On 24 June 1988, in the course of his employment, the plaintiff was involved in a motor vehicle accident as a result of which he ceased laying bricks on a full‑time basis. On that occasion the plaintiff was driving a utility which was hit in the rear by a truck. This caused some tools which were in the tray of the utility to suddenly move forward through the back windscreen and hit the plaintiff in the left side of the head. He required stitches for the resulting laceration and suffered pain, according to his evidence, in the centre of his mid‑back area. During the two to three months that the plaintiff had off work he carried out general supervisory duties relevant to the bricklayers working under him.
In approximately 1989/1990 the plaintiff obtained lighter employment with RBD Building Maintenance ("RBD") carrying out general handyman duties. About five or six years later he accepted a job with RBD as a truck driver which employment involved the plaintiff picking up building materials which he and others then manually loaded on to the rear of the truck. He said after changing employment after the 1988 accident his back problems resolved within two years. That claim was settled in 1992.
As a subcontractor initially the plaintiff was paid $150 a day which gradually increased to $180 a day and from these payments a 20 per cent deduction for taxation was made by the employer. In this capacity the plaintiff said that he worked on average between five and six days per week. The plaintiff would invoice RBD for the weekly hours he worked and the payment by cheque to D & A Puca would be directed to the account of Rosekelly Holdings Pty Ltd as trustee for the D & A M Puca Family Trust.
Rosekelly Holdings Pty Ltd was also obtaining income from rental of three units that the plaintiff, his son and brother‑in‑law developed and built under the supervision of a registered builder, because although they had an interest and ability in the building trade none of them had the necessary registration requirements. Nonetheless, according to the plaintiff, they did much of the work themselves and were in the habit of developing a set of units approximately every two years. From the plaintiff's estimation he would make between $18,000 and $21,000 profit per set of units developed.
The plaintiff's evidence was that the first set of three units which he developed in Joondanna in 1991-1992 occurred without the assistance of his son and brother‑in‑law and in fact he stills retains that property and receives rental income from it. He commenced the development a few weeks prior to settling his claim relevant to the motor vehicle accident in which he was involved in 1988. In 1993-1994 the plaintiff developed two sets of three units in Joondanna and both his son and brother‑in‑law were involved in this project. In 1996-1997 they developed a group of three units in Osborne Park and shortly before the motor vehicle accident in 1998 they developed a duplex in Tuart Hill which was sold in 1999. It appears that the plaintiff was also involved in the development of units in Nollamara in 2000. The plaintiff's evidence was that this last development was sold in 2001 and he received approximately $5,600 as a result because his involvement had been limited to being a guarantor for his son's bank loan relevant to the project and he had some general supervisory input in respect of the development.
The plaintiff's financial circumstances will be referred to later in the course of these reasons but his evidence to the Court was that his current income consists of $480 per week from rental (being $160 per week for each of three units) which sum does not include the cost of maintenance of the properties. His recollection was that he also receives workers' compensation payments of approximately $1,650 per fortnight.
The plaintiff's evidence was that his truck driving work with RBD was comparatively light and his supervisor did the associated paperwork. After many years in the building industry Mr Puca accepted that he can read plans and has ability on a practical level to estimate quantities of materials required but due to his limited skill with written English he has some difficulty in doing the associated paperwork required for estimates. Again due to limitations in this respect he is not computer literate. For this reason Mr Puca's evidence was that he cannot work as a supervisor in the building industry. He says he is currently unable to work as a handyman and cannot now even work for a registered builder under that person's ticket. He accepted that he can organise and supervise trades people on site but sees difficulties in doing so because there is a legal requirement that supervision on a building site needs to be carried out by a registered builder.
The plaintiff said there has been no change in his physical situation and symptoms since May 1999 and he does not believe that he can return to work for RBD in any capacity as they have no light duties available.
Prime Rehabilitation obtained employment for the plaintiff at Bunnings which required him to check and note vehicles and their contents as they entered and exited. He did this work every second day but his evidence was he found the hours required onerous and the associated paperwork, being the filling out of dockets, difficult due to problems with his literacy skills. His lower back pain prevented him from carrying out a full day's work and so the work trial in the end was not a successful part of the rehabilitation process in the plaintiff's view.
His evidence was that he was offered a full‑time supervisory job on a building site by a friend of his, Mr Youstini, but the plaintiff declined due to the fact that he had back problems and did not feel it was fair to accept his friend's offer of employment under those circumstances. The plaintiff was also requested to work at the Osborne Park Building Centre but considered that the work there would be too heavy for him to carry out. Again he was offered some bricklaying work but given his physical circumstances he did not believe he could do it. At this point in time the plaintiff considers that given his limited written English skills there would be no point in pursuing further study in order to pass the necessary examinations to obtain qualifications as a building supervisor. For these reasons the plaintiff has not found alternative employment and apart from the work trial at Bunnings the plaintiff's only efforts at seeking employment appear to be those he referred to in his evidence. Mr Puca's evidence was that it had been his intention to retire at 60 years of age.

Evidence as to the plaintiff's financial circumstances

Relevant to this matter the plaintiff tendered a group of tax returns between 1996 and 2001 prepared by his accountant, Mr Gauci. These Exhibits P1A(a) to (f) and P1B(a) to (f) concern six personal tax returns filed on behalf of the plaintiff and six tax returns filed on behalf of the family trust company and its income. Mr Gauci, who is in fact the plaintiff's brother‑in‑law, gave relatively brief evidence and referred to the above documents. The plaintiff's financial history between 1996 and 1999 was also referred to in documents Exhibit P2A, B and C. Prior to November 1999 PPS payments were made by the plaintiff to the Australian Taxation Office from income to the family trust. Mr Gauci's evidence was lacking in any real detail but he did say that from the documents produced and shown to him it was not possible to ascertain the profit on any particular block of units or unit. Until 2001 any income earned went into Rosekelly Holdings Pty Ltd but after that income earned went into the plaintiff's personal account because the income was from insurance payments made specifically to the plaintiff and that had implications for taxation purposes. Mr Gauci also said that from the tax returns of the trust and the financial statements available to him, it was not possible to say from year to year how much the plaintiff earned in his employment with RBD.

Circumstances of the accident and its aftermath

On the day in question, in the course of his employment, the plaintiff was driving his truck when another vehicle collided with the rear of his vehicle with sufficient impact to cause the plaintiff's vehicle to be lifted up, spun around and somersault into a ditch. The vehicle landed with the cabin in the upright position but the plaintiff had considerable difficulty in extricating himself from the vehicle because apart from being in some shock, he was suffering pain radiating from behind his right ear down to his lower spine. He also had some facial lacerations. The plaintiff was taken to hospital but sent home despite the fact that he says he was still suffering pain in his shoulder, lower back and had associated headaches. After further examination by his general practitioner and x‑rays it was confirmed that the plaintiff had also sustained cracked ribs in the accident.
The pain persisted with the plaintiff developing pain in the right arm and right leg. Although the pain in the mid‑back region settled, he continued to experience pain in his lower back. Treatment by Dr Hales in the form of an injection was administered. Physiotherapy was ceased because it appeared to aggravate the plaintiff's condition. His evidence was that his neck and arm pain did not abate and he had to take Panadeine Forte for ongoing headaches. It was the plaintiff's evidence that he continues to have symptoms of this nature currently. When he is not taking Panadeine or Panadol for pain relief he has between two and four Digesic tablets per day. He consults his general practitioner, Dr Di Camillo, about once a month and currently is not on any anti‑inflammatory or ante‑depressant medication. It was the plaintiff's evidence that he was not referred to a psychiatrist relevant to his ongoing problems, although there does seem to be evidence that for a short time after his accident he was fearful of driving and so consulted Mr Burns, a psychologist. This problem would appear to have resolved fairly quickly. For the last few months the plaintiff has been taking one or two Panadeine Forte tablets per day.
The plaintiff had no recollection of any right shoulder pain or problems or indeed any problems with his cervical region before the accident of 25 November 1998. This is despite Dr Di Camillo reporting on 20 March 1999 that in August 1998 the plaintiff received a right shoulder injury at work. The plaintiff's recollection was that he had pain in his left shoulder as a result of the 1998 motor vehicle accident. He was insistent that he had no low back pain, as distinct from mid‑back pain, prior to the 1998 accident. It was the plaintiff's evidence that in 1997 he was involved in a minor motor vehicle accident but his recollection was that this occurred in September of that year rather than November.

Medical evidence relevant to the plaintiff's injuries and the extent of the plaintiff's incapacity

Dr Suthers, an occupational physician, gave evidence on behalf of the defendant. The history he obtained was that between 1992 and September 1998 the plaintiff was fit and healthy but then he was involved in a motor vehicle accident on Brookton Highway. He sustained some shock and headaches which resolved and as a result he lost little or no time off work and made a full recovery. Shortly thereafter on 25 November 1998 the plaintiff was involved in a considerably more serious motor vehicle accident. He complained to Dr Suthers of suffering pain in the right lumbar region and right shoulder as a result. Dr Suthers' understanding from the plaintiff was the work trial at Bunnings as a gatekeeper for two hours a day three days a week aggravated the plaintiff's low back and neck pain, although the plaintiff professed a desire to be able to return to some form of employment. In his view the plaintiff suffered right neck pain with associated headaches, right shoulder pain and right low back pain. These symptoms on the plaintiff's history dated from the November 1998 accident, although Dr Suthers was unable to isolate the cause of the symptoms. He was not confident about the plaintiff's ability to successfully attempt to return to work as he believed it would be frustrated by a pain flare‑up. Nonetheless in his view the plaintiff is fit to work full‑time in a position such as a gatekeeper with the major hurdle being the plaintiff's lack of motivation to return to work and his focus on his pain state.
As a result of this in July 2000 when Dr Suthers next examined the plaintiff he felt there had been no clinical change and diagnosed the plaintiff as suffering chronic pain syndrome affecting his neck and lumbar region with no explanatory pathology. Chronic pain syndrome appears to be a term akin to soft tissue injury or fibromyalgia, with none of the conditions being particularly specific.
The chronic pain in the plaintiff's right shoulder in Dr Suthers' opinion could be a supraspinatus tendinopathy which is aged related. As to the pain in the neck and lower back area he believed that the plaintiff had possible pre‑existing changes and the motor vehicle accident could have rendered these changes symptomatic. If that was so one would have expected the pain to settle over a period of weeks. It is the case, however, that soft tissue injuries while normally healing quickly can persist over lengthy periods of time causing chronic pain and it is this situation which appears to limit to a degree the plaintiff's current function and work capacity.
Mr Wong, a neurosurgeon, first reviewed the plaintiff in 1991 relevant to low back and neck pain suffered in the motor vehicle accident on 24 June 1988.
He reviewed him again in July 1999 and considered the plaintiff's lumbar and cervical spine movement was considerably more restricted than it had been eight years earlier. Like Dr Suthers the diagnosis of Mr Wong was of non‑specific soft tissue injury and he was unable to say if the condition would be permanent because he was unable to isolate the cause of either the low back or neck pain. As at July 1999 Mr Wong was fairly optimistic as to the possibility of the plaintiff returning on a full‑time basis to the work he did at RBD because he did not believe the plaintiff had any measurable permanent disability. He accepted there was temporal link between the November 1998 motor vehicle accident and the symptoms complained of by the plaintiff given that he was very reliant on the history given to him by the plaintiff. At the time of trial Mr Wong was of the view that if the plaintiff was still experiencing pain three years after the accident then the chances of the plaintiff recovering were not encouraging.
Dr Ker specialises in rehabilitation medicine and reviewed the plaintiff on two occasions. The plaintiff complained to him of right neck pain, right shoulder pain and pain in the lumbar spine. Given these limitations he was of the view that the plaintiff was not fit to carry out bricklaying or general maintenance work and was limited to fairly sedentary occupations. He felt Mr Puca was unlikely to return to the open workforce because he had a permanent disability and this was complicated by the fact that Mr Puca was not particularly competitive due to his limited education and written English skills.
Dr Ker accepted there was little evidence of spinal pathology with the exception of some pre‑existing spondylolisthesis which was unlikely to advance further. He considered that Mr Puca's physical problems related to the November 1998 motor vehicle accident.
Dr Di Camillo prepared a range of reports Exhibit P4(a) to (f) relevant to his reviews and treatment of the plaintiff between March 1999 and January 2001. In that last report the plaintiff was continuing to complain of constant back pain, right shoulder pain, headaches, dizziness, insomnia, anxiety, depression, irritability and poor memory.
Relevant to the November 1998 motor vehicle accident Dr Di Camillo diagnosed the plaintiff as suffering from severe lumbar strain with a possible aggravation of pre‑existing degenerative disease, moderate cervical strain, although there was no abnormality of the cervical spine, aggravation of a right shoulder injury and chronic anxiety. Despite the chronic anxiety he did not regard the plaintiff as suffering any psychiatric disorder and agreed that there was no conventional pathology which readily explained the symptoms of which the plaintiff complained. He believed that the plaintiff had suffered a 10 per cent disability of his body as a whole. Despite this, his evidence was that the plaintiff is fit for part‑time light duties extending to a maximum of 20 hours a week. He conceded, however, that due to Mr Puca's poor literacy skills he may face some limitations in obtaining supervisory employment in the building industry.

Dr Di Camillo has been the plaintiff's general practitioner for a considerable period of time and was consulted by Mr Puca relevant to his 1988 motor vehicle accident. Prior to that time there was no history of back, neck or shoulder pain but after 1988 the plaintiff began to consult Dr Di Camillo relatively frequently in relation to such complaints. On 24 June 1988 the plaintiff was complaining of pain in the lumbar sacral spine and into the lower back. Conservative treatment was applied and the plaintiff returned to lighter full‑time maintenance duties in June 1990. By January 1993 it was Dr Di Camillo's observation that the plaintiff's condition had stabilised. The plaintiff did not complain between December 1991 and September 1992 of neck or right shoulder pain, although he was continuing to complain of lower back pain then and in early 1993. In February 1995 the plaintiff consulted Dr Di Camillo with complaints of neck pain and associated headaches.
Dr Di Camillo's notes reveal that on 17 November 1997 he was consulted by the plaintiff relevant to a motor vehicle accident on 14 November as a result of which Mr Puca complained of back, neck, shoulder pain and headaches. By March 1998 the headaches continued but the neck pain was improving and this was confirmed with normal x‑rays being obtained. By August 1998 the plaintiff was still complaining of daily headaches and mild neck pain. On 31 August 1998 the plaintiff consulted Dr Calabro (Dr Di Camillo's partner in the medical practice) and gave a history that two days earlier on 29 August the plaintiff had fallen on his right shoulder. For this reason on 2 September 1998 he complained to Dr Di Camillo of right shoulder pain and an x‑ray revealed a partial thickness tear of the supraspinatus tendon for which conservative treatment was recommended and the plaintiff had three days off work. About three weeks later the plaintiff saw Dr Calabro again regarding a painful right shoulder tip and after that on 26 November 1998 he consulted Dr Di Camillo regarding the motor vehicle accident of 25 November. The effect of that accident on the plaintiff was to cause severe neck and back pain as well as an aggravation of the pain in the right shoulder. Dr Di Camillo was of the view that the plaintiff had shown obvious improvement after his 1988, 1997 and August 1998 injuries but the improvement shown over the last three years since the accident of 25 November has been of a minor nature.
Currently Dr Di Camillo reviews the plaintiff on a monthly basis, mainly at the plaintiff's instigation, in order for him to obtain prescriptions and such like. The cost of such a visit is $23.45. Dr Di Camillo is administering no particular treatment to the plaintiff and considers that Mr Puca's prognosis for recovery is poor given that he is still complaining of pain and disability from what appears to be a soft tissue injury three years after the event.
Mr McCallum, an orthopaedic surgeon who examined the plaintiff, felt his condition had improved between 1999 and February 2001 when he last reviewed him but still was unable to return to bricklaying. He saw some restrictions concerning supervisory duties as his information was that the plaintiff cannot stand for long periods of time due to an unstable pelvis. This was not a finding made by any of the other medical practitioners who were called to give evidence, although it is a diagnosis with which, according to Mr McCallum, Mr Wong is familiar.
Mr McCallum's diagnosis did offer some encouragement in that he was of the view that the plaintiff's condition was capable of treatment and improvement, if he is subjected to specialised physiotherapy. In the end result the plaintiff would not be able to return to heavy physical work but would, in Mr McCallum's opinion, be capable of undertaking work of a light nature. He felt the plaintiff's neck pain could be assisted by facet joint injections which would permit greater movement and this in turn would allow the cartilage to repair itself to a degree.
Another occupational physician, Dr Marsden, was called on behalf of the defendant. He believed that the plaintiff was capable of carrying out full‑time duties as a building supervisor provided that the work was of a fairly light nature. Dr Marsden did not feel that the plaintiff should undergo surgery of any nature. In his report of 10 September 2001 Dr Marsden noted that the plaintiff's back problem is aggravated by an underlying pars defect and spondylolisthesis, but generally he considered the plaintiff's problems to be musculo‑ligamentous and he would expect them to settle in the long term.
It is interesting to note that on review the plaintiff informed Dr Marsden that about six months earlier he had been offered some work by a company for whom the plaintiff had worked previously. This work was of a supervisory nature and involved organising workers in the building industry, obtaining equipment and such like. The plaintiff advised them that he was willing to try the work and felt he could have undertaken it. He told Dr Marsden, however, that the company then advised him that as they were concerned about the plaintiff's ongoing neck and back problems they were in the end not prepared to employ him.

Findings on the evidence

There is no argument that the accident in which the plaintiff was involved on 25 November 1998 was comparatively severe. At that time the plaintiff was working, it would appear without any difficulty, carrying out the duties of a handyman/truck driver which were fairly light in nature. That job was predominantly physical but I find that the plaintiff was able to cope with the small administrative component that he was required to carry out relevant to the job.
Based on the history given to him, Dr Suthers took the view that the plaintiff's right cervical pain, right shoulder pain and right lumbar pain were related to the accident in November 1998, although he could not say what was causing the symptoms when he saw the plaintiff. I accept that these injuries did occur as a result of that accident. The right shoulder pain would certainly appear to have an age component and if the November 1998 accident aggravated any of the plaintiff's symptoms I find that in the normal course of events they would have settled within a six to 12 month period. I do not find that the right shoulder pain is so debilitating that it prevents the plaintiff from having a comparatively full range of movement. Mr Wong was of a similar view as Dr Suthers and overall on the medical evidence there does not seem to be any explicable reason why the plaintiff cannot return to some form of light work such as he was carrying out at the time of his accident in 1998 or indeed the type of work he was carrying out at Bunnings during the course of his work trial. There is no suggestion that the plaintiff has any psychiatric or psychological condition which prevents him carrying out work of a light nature. I do accept that the plaintiff does not have competitive written and oral English skills but I do not accept the work that he was doing previously either for RBD or Bunnings required particular ability or expertise in this area. Although English is not the plaintiff's first language, he does not lack the ability to express himself and make his position clear. Mr Puca's past history indicates that he is a somewhat resourceful individual who, although not professionally qualified, nonetheless possesses extensive experience in carrying out supervisory duties within the building industry and it is that experience which also allows him to read plans in a general way and make, for example, estimations as to quantities of materials required.

Loss of amenities and pain and suffering

The plaintiff's lifestyle has been restricted to a degree since the accident. He no longer participates in competition fishing which he would do on occasions prior to the accident, sometimes travelling away for three or four days to the competition venue. Now he is unable to engage in fishing as a recreation due to back pain. He is no longer able to sit and watch soccer as frequently as he would wish because after an hour or so he begins to suffer pain. He is able to drive a motor vehicle, although not for long periods of time. He can perform some small amount of exercise but finds that with walking he tires more quickly than prior to the accident. He has poor sleeping patterns due to pain. The plaintiff's reaction to these restrictions has been one of frustration and it would seem that at times his family find it difficult to cope with what they perceive as a certain amount of temper on the plaintiff's part.
The plaintiff's wife gave evidence that the plaintiff was now more demanding and more irritable than prior to his accident and she feels that he is less energetic and less inclined to socialise. For this reason in her view there has been a general deterioration of her domestic and personal relationship with the plaintiff since his accident. Nonetheless it seems that the plaintiff still attends the Vasto Club which is an Italian social club of which the plaintiff is a foundation member. He is still a committee member but not as active as prior to his accident. The plaintiff attends there on a Tuesday night and may have something light to eat there and play cards with his friends. It is generally a place where the plaintiff is able to socialise with others to pass some time before going home.
I accept that to a degree the plaintiff's recreational and social life has been affected and that he does not enjoy as active a role on family outings as he did previously. I accept that as a result of his condition and resulting frustration there has been some negative impact upon the plaintiff's ability to relate to others within his family situation. I do not find that these restrictions are extensive and although the plaintiff suffers a degree of pain and discomfort I do not find this to be in any way extreme or particularly invasive.
The plaintiff's injuries arose out of a motor vehicle accident which occurred after 1 July 1993. The provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 govern the amount of damages to be awarded to the plaintiff for non‑pecuniary loss. Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s 3c of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss as from 1 July 2001 is set at a figure of $232,000, (Amount "A").
Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
Southgate v Waterford (1990) 21 NSWLR 427 is of some assistance in interpreting these provisions. Although the New South Wales legislation considered in that case was in somewhat different terms to s 3C of the Act as it stood at the time that legislation provided that damages for non‑economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the Court to assess the amount of damages to be awarded for non‑economic loss as a proportion, determined according to the severity of the non‑economic loss, of the maximum amount which that legislation permitted to be awarded. In their joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial Judges could approach the task of apportionment required by s 79(2) and s 79(3). It is important in this case for the Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial Judge to consider and to make findings on those elements in the evidence which are relevant to such loss. This will require the Judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in award of general damages. Then it is necessary for the Judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000, but in a ratio which the Judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
After canvassing the evidence relevant to the heads of damage which fall within the award of general damages it is then necessary to consider what might be a most extreme case in which the maximum amount of damages, currently standing at $232,000, may be awarded for non‑pecuniary loss, and then apportion damages by comparing the severity of this plaintiff's non‑pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms are compared with the example of what might be regarded as a most extreme case, namely quadriplegia, I find that the plaintiff's injuries and symptoms, their progression and treatment, their current status and the affect that they have had on the plaintiff's enjoyment of life puts this situation at 12 per cent of a most extreme case. From the resulting sum of $27,840 must be deducted the sum of $11,500 (Amount B). An award of $16,340 is made to the plaintiff for non‑pecuniary loss.

Past economic loss

A calculation of the plaintiff's past economic loss presents something of a difficulty. There was not a great deal of detailed evidence presented to assist the Court in this regard and Mr Gauci, the plaintiff's accountant, in effect said it was difficult to determine how much income came to the plaintiff from particular sources. It is the case, however, that for a time prior to the accident in 1998 the plaintiff was from time to time engaged in building development activity which brought him an income. The situation is further complicated because although it was the plaintiff's evidence that he was earning $180 per day whilst working for RBD Maintenance prior to the accident in November 1998 that work, as I understand it, was on a casual basis and there is no detailed evidence as to exactly how many days per week the plaintiff worked. I am prepared, however, to accept that the plaintiff then worked a five day week with some overtime. He was paid only therefore for the days that he worked and would have had to make his own arrangements as to superannuation. He did not receive, as I understand it, holiday pay or sick leave entitlements.
In all of the circumstances and doing the best I can for the purpose of this assessment, I am prepared to accept the calculation put forward on behalf of the plaintiff as to past economic loss. That submission on the figures provided indicates that the total net income for the plaintiff during the period 1 July 1998 to the date of the calculation was $99,792.44. Working on the figure of $684.32 during the period 1 July 1998 to 30 June 2000 and then $720.72 thereafter the plaintiff should have earned $119,148.63. There is therefore a past loss of earnings of $19,356.19. Interest on this amount at 3 per cent for a period of approximately three years results in a sum of $1,742.06.

Future loss of earning capacity

As the plaintiff claims damages for loss of earning capacity, pursuant to Medlin v State Government Insurance Commission (1995) 182 CLR 1 he is obliged to satisfy the Court of two things:
"The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injuries. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life. It is that the 'diminution of … earning capacity is or may be productive of financial loss' (Graham v Baker (1961) 106 CLR 340 at 347)."
As was noted by Lord Diplock in Paul v Rendell (1981) 34 ALR 569 at 571:
"… the assessment of economic loss involves the double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."
In his evidence‑in‑chief it was plain that it had always been the plaintiff's intention to work until age 60 years rather than 65 years of age. On all of the evidence I do not accept that the plaintiff is totally and permanently incapacitated for work. This reflects in my view the consensus of the medical evidence before the Court, none of which in my view satisfactorily establishes that the plaintiff is totally and permanently incapacitated for work. While some medical practitioners felt that the plaintiff could work on a full‑time basis in something similar to his pre‑accident or light duties others believed that he could perhaps undertake at least part‑time employment on that basis.
I have already commented on the plaintiff's experience in supervisory work in the building industry and it would not appear that his lack of formal qualifications or written English skills have prevented him from carrying out that work successfully in the past. He clearly cannot return to heavy duties but the fact is he was not doing that type of work in any event at the time of the accident in November 1998. The plaintiff is a resourceful individual but does not seem to have expended a great deal of energy in searching for alternative employment.
In my view with all of the evidence available the plaintiff has a retained earning capacity of 70 per cent. This takes account of factors such as the plaintiff's age, his past work history and that English is not his first language.
It is simply not possible to calculate future loss of earning capacity with reference to the plaintiff's previous employment because there is no evidence, of a precise nature as to how many days a week he would have continued to work at that rate and it is not even possible to arrive at an average number of days for the purpose of the exercise. There is no persuasive evidence that the plaintiff would have continued to engage in property development into the future or if he had, what that would have resulted in by way of profits to the plaintiff.
For the purpose of this calculation I am prepared to accept that the plaintiff would have been able to earn a weekly equivalent of his current weekly compensation payments which is $764.40 gross per week ($592.00 net per week).
The plaintiff at trial was approximately 53.3 years of age. Given that his evidence was that he intended to retire at 60 one must calculate his loss of earning capacity over 6.7 years. The relevant multiplier is therefore approximately 289.2.
The plaintiff's future loss of earning capacity is therefore $177.60 (being 30 per cent of $592.00) multiplied by 289.2 = $51,361.92.

Future medical expenses

In the light of the evidence these are not able to be calculated in a precise mathematical manner and in any event the evidence would suggest that they are likely to be modest.
The plaintiff is currently not undergoing any form of prescribed medical treatment and has not done so for some time. At time of trial and immediately prior to it the plaintiff was taking one or two Panadeine Forte tablets per day (if he was not taking a similar amount of Digesic medication). Dr Suthers did not see the need for any further medical treatment and nor did Mr Wong, although the plaintiff was still complaining of pain to him. Dr Ker did not recommend any further medical treatment or medication.

The plaintiff consults Dr Di Camillo on a monthly basis but that is mainly in order for the plaintiff to obtain prescriptions, rather than at the instigation of Dr Di Camillo. Dr Di Camillo on these visits administers no particular treatment and would not seem to see the need for any.
Mr McCallum did express a view that specialised physiotherapy if administered may assist the plaintiff's condition as would facet joint injections. There was no detailed evidence as to the nature of the treatment, the recommended frequency of such treatment if it were to occur, nor its cost. The plaintiff it would appear has in the past indicated he is not particularly keen on undergoing facet joint injections in any event. Dr Marsden did not recommend any future treatment and in particular did not consider that the plaintiff should undergo surgery in the future. In these circumstances any award for cost of future medical expenses must necessarily be global in nature. A global award of $3,000 is appropriate in the circumstances.

Summary of award

Pain and suffering and loss of amenities         $ 16,340.00
Past loss of earning capacity  $ 19,356.19
Interest on past loss of earning capacity         $   1,742.06
Future loss of earning capacity  $ 51,361.92
Future medical expenses  $   3,000.00
Agreed special damages  $ 10,634.20
Workers' compensation charge  $120,908.01
$222,342.38