Pulik v Quaylink Enterprises P/L
[2001] QSC 301
•17 August 2001
SUPREME COURT OF QUEENSLAND
CITATION: Pulik & Anor v Quaylink Enterprises P/L & Ors [2001] QSC 301 PARTIES: MAREK PULIK
(first plaintiff)
ANTIQUE RESTORATION PAINTING AND MAINTENANCE
(second plaintiff)
v
QUAYLINK ENTERPRISES PTY LTD
(ACN 063 555 279)
(first defendant)
APM GROUP PTY LTD (ACN 061 997 966)
(second defendant)
ALLSPEC DEVELOPMENTS PTY LTD
(ACN 054 351 549)
(third defendant)
WORKCOVER QUEENSLAND
(defendant by election)FILE NO: S5025 of 2000 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court
DELIVERED ON: 17 August 2001 DELIVERED AT: Brisbane HEARING DATES: 10-12 July 2001
JUDGE: Muir J ORDER: Judgment for the plaintiff in the sum of $291,065.14 together with costs to be assessed on the standard basis CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ACTS OR OMMISSIONS – where plaintiff fell from first floor of partially constructed townhouse while descending by ladder – where ladder not properly secured and barely extended above the first floor level – whether contributory negligence by plaintiff
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – where lumbar spine pain did not arise until some months after accident – whether lower back injury caused by accident
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – where plaintiff capable of full time sedentary work – where plaintiff suffering depressive disorder – where plaintiff aspired to entrepreneurial pursuits – where plaintiff had no trade qualifications
Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479, cited
Jones v Dunkel (1958-1959) 101 CLR 298, cited
Podrebersek v Australian Iron and Steel Pty Ltd (1985( 59 ALR 529, referred toCOUNSEL: G W Diehm for the first plaintiff
F G Forde for the second plaintiff
M Grant-Taylor SC for first second and third defendants
P D Lane for the defendant by electionSOLICITORS: Gall Standfield & Smith for first plaintiff
Quinn and Scattini for the second plaintiff
Clayton Utz for first, second and third defendants
Hunt & Hunt for the defendant by election
The plaintiff was injured on 18 October 1994 when, attempting to descend from the first floor of a partially constructed townhouse in the Orchard Park Development at Boonooroo Park by means of a ladder, he fell onto the concrete slab below striking his head. The first defendant was the owner of the land on which the townhouse was being constructed. The second defendant was the project manager of the townhouse development which included the subject building and the third defendant was the builder engaged by the first defendant to construct the townhouses.
These defendants were represented by Mr Grant-Taylor SC and in the course of submissions, neither he nor Mr Diehm, who appeared for the first plaintiff, sought to argue that any of the defendants should be treated differently to the others in determining liability. The proceedings in respect of the second plaintiff and the defendant by election were compromises in the course of the trial.
The plaintiff alleges in an amended statement of claim that the defendants had a duty to take reasonable care for the safety of the plaintiff whilst he was on the land, to ensure that the land and premises thereon were as safe for the use of the plaintiff as reasonable care and skill on the part of any person could make them and to take reasonable care to prevent injury or damage to the plaintiff from any danger which the defendants knew or ought to have known existed.
It is further alleged that the defendants breached their respective duties in a variety of ways, but particular emphasis was placed on allegations that the defendants –
(a) failed to have any adequate bracing on the foot of the ladder;
(b) failed to secure the ladder to the first floor of the building; and
(c) failed to provide a ladder which extended at least a metre above the level of the first floor.
It was initially the defendants’ case that the plaintiff was a trespasser on the land but that position was not advanced in final addresses. The plaintiff’s evidence, which was ultimately unchallenged in this regard, was that he and his father went to the development site office on 18 October 1994 in order to discuss a quotation submitted by them for the painting of some townhouses in the development. After discussion in the site office, they proceeded to one of the townhouses with a view to gaining information relevant to their quotation or the provision of their services, should their quotation be accepted. They both climbed to the first floor of one of the townhouses by means of a ladder which they found in position. The plaintiff was the first to attempt to descend. When he crouched down to get into position to climb onto the ladder, it came up to his knees. Facing out from the building, still crouching, he took hold of the top of the left side of the ladder with his left hand, put his left foot on the ladder and, as he attempted to put the other foot on the ladder, it fell with him on it.
He said that his next recollection was waking up in hospital. That may well be right but there was evidence, which I accept, that the plaintiff was conscious and speaking coherently whilst lying on the ground waiting for the ambulance to arrive.
The plaintiff
The plaintiff was born in Czechoslovakia on 21 May 1974. He migrated to Australia with his family in 1985. He then attended school, completing grade 12 at the age of 17. There is no evidence of how the plaintiff fared academically at school and I infer that he was generally attracted to physical rather than academic pursuits. Prior to leaving school he helped his father in his painting and antique restoration business. A Mr Weston, who had a business of building maintenance and painting, recalls engaging the plaintiff’s father’s firm to do work for his business and forming a favourable impression of the plaintiff’s competence and capacity as a worker from a time when the plaintiff was aged about 14.
After leaving school, the plaintiff and a school friend opened a seven day a week food shop in the Robina Shopping Village which they ran in partnership. The business cost about $45,000 to set up with each partner contributing half. After about a year, the business was not flourishing, there was discord between the partners and they attempted to sell the business. When a sale proved difficult to make, the plaintiff’s parents bought out his partner’s half share and the business was run by the plaintiff in partnership with his parents for about another year until it was sold for a capital gain of a few thousand dollars. At no stage did the business make a profit.
The plaintiff then spent a few months travelling in Europe, looking for opportunities in relation to a business of importing and/or exporting which he hoped to establish. After his return to Australia, the plaintiff worked for Mr Weston’s business between 30 September and 14 October 1994. Whilst undertaking this work he applied for registration of the business name M P Global Trading, the business of which was described on the application form as “painting contractor and after six months import/export”. At around this time he and his father quoted for the painting work required for the Orchard Park Development which was located near the plaintiff’s place of residence. The plaintiff was the driving force behind the attempt to secure that work and his father lent his name to the transaction as part of the process of establishing the plaintiff in his own business.
The plaintiff, although trained in a practical way by his father and seemingly competent, had no trade qualifications and it appears that he did not perceive the need to set about acquiring any.
The immediate physical consequences of the accident
The plaintiff’s account of his injuries and symptoms is as follows.
His first recollection after experiencing the sensation of falling from the first floor of the townhouse was opening his eyes whilst lying in hospital and seeing his mother, father and nursing staff present. He slept for two to three days after being discharged from hospital that day. After waking he says that he was aware of a cut to the head which had been stitched, pain in the head, a sore back, chest and legs. For some months, he experienced bad headaches, blurriness and blackouts. For the first three to six months, his head and neck troubled him much more than his lower back, although he did notice some pain in that area which worsened over time. He started feeling shooting pains in his left leg.
A letter from the South Coast Regional Health Authority to the plaintiff’s solicitors dated 19 March 1996 records, in respect of the plaintiff’s admission to the Emergency Department of the Hospital on 18 October 1994 –
“There was a history of a brief loss of consciousness and on presentation he was complaining of pain in his right shoulder, right knee and pain related to a laceration to the right parietal region of his scalp.
Upon examination revealed him to be conscious and alert, haemodynamacically and neurologically he was stable. He had a large C shaped laceration on the parietal region on the right side with no obvious significant blood loss. The remainder of the physical examination was unremarkable.
Radiological evaluation of his skull, cervical spine, right shoulder and right knee were undertaken. Essentially no bony injury was seen on any of these films and it was felt that he had a mild concussion and moderately severe soft tissue injury. He was subsequently provided with analgesia and the laceration to his scalp was sutured under local anaesthetic. He was then discharged home with head injury observation.”
Subsequent medical examinations of the plaintiff revealed no sign of brain damage. On 21 October 1994 the plaintiff was the victim of an assault in which he was elbowed in the right eye. He was taken by taxi to the Pindarra Private Hospital where he was diagnosed as suffering from mild concussion and discharged the following morning. No evidence linked that incident to the injuries complained of by the plaintiff in these proceedings.
A considerable number of medical reports were placed in evidence. They reveal that the plaintiff’s fall resulted in soft tissue injury to his cervical spine and post traumatic headaches. The defendants do not contend that either of these conditions do not exist or that they were not caused by the accident.
Dr Crittenden, a specialist in psychological medicine, diagnosed the plaintiff as suffering from a major depressive disorder and from post traumatic headache. Dr Tann, a neurologist, expressed the opinion that the plaintiff was suffering from post traumatic headache, as well as soft tissue injury to his cervical spine. Dr Yaksich, neurosurgeon, Dr Langley, orthopaedic surgeon, and Dr Scott Young, orthopaedic surgeon, also concluded that the plaintiff had injured his cervical spine in the subject accident and that the plaintiffs continuing neck problems were caused by that injury. Dr Scott Young’s opinion was that the plaintiff “... has a less than 25% compression fracture of the vertebral body C4” which translated to a “whole person impairment of 5%”.
The issue in relation to the plaintiff’s lumbar spine injury
The defendants contend that the plaintiff’s lower back injury has not been shown to have been caused by the accident. It is argued that, if it is accepted that the lower back injury was not caused by the accident, the plaintiff’s damages for past and future economic loss will be modest. In particular, it is submitted that the evidence reveals that the plaintiff’s post accident incapacity for work, as a result of his head and neck injuries, is no greater than, and is augmented by the effect of the lower back injury. As the latter injury was sustained after the former, it is argued, the plaintiff cannot establish any, or any significant, recoverable loss.
It will be apparent from the foregoing that the defendants accept that the plaintiff suffers from a lower back injury. All the orthopaedic and neological specialists who gave evidence concluded that the plaintiff had a central disc protrusion at the L5-S1 region which caused leg and back pain.
Dr Scott Young’s opinion was that the injury amounted to a “10% whole person impairment”, whereas Dr Tann assessed this injury as 15% permanent disability “of the whole person”.
The medical practitioners called in the plaintiff’s case all considered that the lower back injury was sustained in the accident. Their conclusions in this regard were based on the history provided to them by the plaintiff or involved an assumption that the plaintiff had symptoms associated with the lower back injury at the time of or soon after the accident.
In cross-examination Mr Grant-Taylor sought to establish that if symptoms which could be associated with the plaintiff’s lower back injury did not exist for some months after the accident, then, on the balance of probabilities, the accident was not the cause of that injury. He had a measure of success in eliciting answers favourable to the defendants’ contentions in this regard and it is desirable, I think, that the relevant evidence of the medical specialists be reviewed.
The thrust of Dr Yaksich’s evidence in cross-examination was that it would be reasonable to assume that the injury and the accident were unrelated if the plaintiff was “completely symptom free in his lumbar spine” for a period of 10 months or so after the accident.
Dr Tann accepted that there would be no causal connection between the lower back injury and the accident if the plaintiff began to experience symptoms relating to the back injury only 10 months after the accident. However, his opinion was that in about 25% of those persons suffering from disc protrusions, there could be quite a delayed interval between the trauma which caused the protrusion and the onset of symptoms. It was suggested to him that it would be impossible for a person to suffer a central disc protrusion and not be conscious of at least some pain. He responded “not necessarily. There is no such thing as ‘impossible’ in medicine, I am afraid”.
In re-examination Dr Tann said that many people with such disc bulges in fact continue to live fairly normally lives “without any symptoms (of) ... back pain” until the onset of an inflammatory process which causes irritation of the nerve roots. For that reason, he said, sometimes the patient’s symptoms can manifest themselves well after the time of the relevant injury. Dr Tann also gave evidence to the effect that, although a disc bulge such as that suffered by the plaintiff could occur without a trauma noticed by the patient, that would be relatively rare in the case of a person of the plaintiff’s age. Also of relevance was Dr Tann’s evidence to the effect that it was not unusual for a person who suffered symptoms of the nature of those suffered by the plaintiff to attribute the pains to some other part of the body until the symptoms obviously attributable to that other part of the body diminished in their severity.
It was suggested to Dr Langley in cross-examination that if the plaintiff first experienced lower back symptoms about 10 months after the accident, the symptoms could not be related to the accident. He responded “not necessarily, no”. It was then put to him that if the plaintiff suffered his central disc protrusion traumatically as a result of the accident and that was when the protrusion happened, then it would be “quite impossible for him to be unconscious of having suffered an injury”. The response was –
“No, that’s not so at all. I mean, people can injure their back and have a tear in the annulus and then later have a protrusion of the disc some weeks or months or years later.”
In further questioning, he conceded that it would be unlikely that the injury would be related to the accident if the plaintiff experienced “no pain at all in his back” at the time of the accident.
Dr Scott Young accepted in cross-examination that, if no lower back symptoms associated with the lower back injury manifested themselves until some 10 months after the accident, the accident could not be said to have caused the injury. Two reports of Dr Ohlrick, neurologist, were tendered by consent. Dr Ohlrick expressed doubt as to the connection between the lower back pain and the accident “given the information which has been provided in the various (medical) reports”.
Mr Diehm conceded that if Dr Ohlrick had given evidence he would have expressed the opinion that the lower back injury could not be linked to the accident if no symptoms in respect of the injury appeared until after 10 months from the date of the accident.
The first reference to the plaintiff’s suffering lower back symptoms recorded in any document put in evidence is to be found in a patient record made on 15 December 1995 by a physiotherapist, Mr Phillipi, who treated the plaintiff on that date. He recorded the following on the plaintiff’s patient record –
“15/12/95. Central LBP (standing for lower back pain) 4/12 (meaning 4 months) no incident worsening P lifting, bending strain ¯P rest ...”
He interpreted the arrows and the “P” as meaning that the plaintiff’s aggravating factors were “lifting, bending strain of his lower back and that the pain decreased with rest”.
In cross-examination, Mr Phillipi accepted that he had no independent recollection of the consultation. He accepted the likelihood that the plaintiff had told him that he had been experiencing lower back pain for some time and that it was worsening. He also accepted the possibility that the plaintiff may have told him that it had been worsening for a period of four months. He also said, in effect, that it was common that persons would not report pains until they reached the stage at which the pain was considered by them to pose a problem.
It appears from the patient record that the plaintiff had been seen by another physiotherapist prior to being seen by Mr Phillipi. That other physiotherapist was not called to give evidence and no explanation was given for the failure to call him. Mr Grant-Taylor relied on this, the failure of the plaintiff to call his general practitioner, Dr Rejda, whom the plaintiff began seeing on 24 October 1994, and the failure to call a chiropractor seen by the plaintiff to support the drawing of an inference that the evidence of those persons would not have assisted the plaintiff’s case.[1]
[1]Jones v Dunkel (1958-1959) 101 CLR 298 at 321.
In support of the argument that the plaintiff’s evidence of the existence of symptoms of lower back injury prior to August 1995 should be rejected. Mr Grant-Taylor submitted that the plaintiff should not be accepted as a credible witness. He submitted that the plaintiff’s “habitual mendacity (had) been exposed” by false answers to interrogatories and by misleading, not to say fraudulent, conduct by him when seeking to obtain finance company loans. I am unable to attach a great deal of weight to the erroneous answers to interrogatories. One of the major points made against the plaintiff in that regard is that the answers to interrogatories repeat an assertion in the plaintiff’s statement of loss and damage to the effect that prior to the date of the accident the plaintiff was “earning no less than $450 net per week”. What the statement actually says is that prior to the accident “the ... plaintiff was capable of undertaking work as a painter ... earning no less than $450 net week”. That is no more than an expression of opinion and is probably broadly accurate. The assertion in the answers to interrogatories, however, that during the period 1 July 1993 to 18 October 1994, the plaintiff received $12,734 income from his parents’ business is clearly wrong and the plaintiff should have appreciated that. The plaintiff passed the error off in cross-examination by intimating, in effect, that he had not provided the information and had not adverted to its inaccuracy.
Mr Diehm pointed out in his submissions that it was unlikely that the plaintiff was attempting any deception of the defendants through his answers to interrogatories and statement of loss and damage as he had disclosed his income tax returns and that the more likely explanation for the errors was carelessness in the preparation of the documents. I have concluded that there was no deliberate dishonesty on the plaintiff’s part in this regard has been established. I accept, however, that the allegations concerning conduct in obtaining loans from finance companies should be viewed more seriously. The plaintiff has revealed himself as a person who is prepared to act in an opportunistic and somewhat unscrupulous manner in order to obtain loan moneys. That is a factor which needs to be taken into account in assessing his credibility.
I am prepared to draw the inference that the evidence of Dr Rejda, the physiotherapist and the chiropractor would not have assisted the plaintiff’s case, but I do not regard the failure as being of great importance in the scheme of things. On the evidence which I accept, it would not have been remarkable if the plaintiff had said nothing about lower back pain to any of these persons for some months after the date of the accident.
Even though I have treated the plaintiff’s evidence with some caution, I accept his evidence that he did suffer symptoms of lower back pain within the 10 month period following the accident. It is possible that the plaintiff’s central disc protrusion at the L5-S1 region manifested itself between 18 October 1994 and August 1995 for reasons unconnected with the plaintiff’s fall, but the evidence does not suggest that, in a person of the plaintiff’s age, that such an eventuality was particularly likely, especially when regard is had to the restrictions on the plaintiff’s physical activities over that period.
The plaintiff’s case that the disc protrusion was caused by his fall is not entirely bereft of evidentiary support. It is plain that he sustained a very heavy fall on 21 October which lacerated his scalp and caused the compression fracture of his cervical spine. The plaintiff’s explanation to the effect that he gave little attention initially to his lower back pains because of the more severe pains caused by his neck and head seem credible enough.
I do not attach a great deal of weight to Mr Phillipi’s evidence in chief, based as it was on a reconstruction of what he had written on the plaintiff’s patient record. The entry, as he accepted, could easily have recorded a statement by the plaintiff that the pain had worsened over the last four months. As the earlier discussion of the medical evidence illustrates, the onset of pronounced symptoms of a lower spinal injury such as that suffered by the plaintiff may be substantially delayed. There is a gap of only nine or 10 months between the extremely heavy fall sustained by the plaintiff which damaged one part of his spine and the time at which, on the defendants’ preferred interpretation of the evidence, the plaintiff said that he first experienced symptoms of back pain. Commonsense would dictate that a degree of tolerance or margin for error ought be allowed in respect of what appears to be no more than a general estimate provided to the physiotherapist. I therefore find that the plaintiff’s lower back condition was caused by his fall.
The impact of the plaintiff’s injuries on his capacity to work
In January 1996, Dr Yaksich gave the opinion that although it would not be possible for the plaintiff to return to “his early heavier occupation”, after a suitable rehabilitation program it may be possible for him to return to gainful employment activities. A report of Dr Yaksich in November 1996 suggests that it was the doctor’s opinion that the plaintiff could be employed in areas which involved only light physical activity.
Dr Langley, in his October 1998 report, was somewhat equivocal. He said –
“It is unlikely that he will return to painting as a profession and he should try and get himself rehabilitated into some form of sedentary work such as doing quotes etc if this can be arranged for him. This will depend on the outcome of his rehabilitation process as to what is recommended for him. ... If he can get suitable sedentary type work in the future then it will be unlikely that his working life will be shortened to any great extent.”
Dr Tann’s opinion in his report of 28 January 1999 was that “... with the guidance of a rehab officer, he could be retrained for full time light sedentary work and that ... it is very unlikely he will require any assistance of others in the past, present or future”.
Dr Scott Young’s opinion in his 12 January 2001 report was that the plaintiff was capable of full-time work of a light and sedentary nature which could be either skilled or unskilled.
Dr Ohlrick also saw no difficulty in the plaintiff’s working full time.
The impact of the plaintiff’s depressive disorder on his future income earning capacity was not explored in evidence. In her report of 1 August 2000, Dr Chittenden said of his depressive disorder, “This appears to be secondary to Mr Pulik’s physical condition, his level of chronic pain, and his inability to seek work due to his physical and mental state”. She then went on to recommend that the plaintiff be treated by a psychiatrist and be investigated for the possibility of organic brain damage. There is no evidence of underlying organic brain damage and this bears on Dr Chittenden’s advice that –
“If Mr Pulik is found not to have any appreciable organic brain damage, then his depression should be successfully treated by antidepressant medication and counselling over the course of 6 to 12 months.”
The medical evidence which I have reviewed, and from which there was no departure in substance in oral evidence, offers no support for Mr Diehm’s submission that the plaintiff’s residual earning capacity should be assessed at no more than a quarter of his pre-accident earning capacity.
Liability
Liability was not accepted by the first, second and third defendants but no argument against liability was mounted. Whether one or more of the defendants is or are to be treated as occupiers, the questions of the existence of a duty of care and its breach are to be determined by reference to ordinary principles of negligence.[2] The risk of injury to persons of the class of which the plaintiff is a member (members of various building trades) was clearly foreseeable. A reasonable owner or builder in the circumstances would have taken steps to ensure that access to and egress from upper floor levels of partially constructed townhouses was by means of ladders of appropriate length, properly fastened or, at least, securely positioned. Such measures are not only relatively straightforward, they are cheap to implement and constitute obvious precautions against the sort of accident which befell the plaintiff. There was evidence which established that such precautions are industry norms. It is thus clear that the defendants had a duty of care to the plaintiff which they breached.
[2]Australian Safeway Stores Pty Ltd v Zaluzna (1986-1987) 162 CLR 479 at 488.
Contributory negligence
The defendants contend that the plaintiff’s contribution should be 50% on the basis that the plaintiff had ample opportunity to observe that the ladder was not secured and that it failed to protrude much above the level of the first floor of the subject townhouse before he mounted it. It was further submitted that the plaintiff held himself out as a tradesman, had a degree of experience as such and that his use of the ladder “whilst it was placed so dangerously and precariously can only suggest that his attempt to descend the ladder exposed a want of care for his own safety”.
As was said in the Judgment of the Court in Podrebersek v Australian Iron and Steel Pty Ltd - [3]
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie. of the degree of departure from the standard of care of the reasonable man (Pennington v Norris ...) and of the relative importance of the acts of the parties in causing the damage. ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
[3](1985) 59 ALR 529 [applied 160 CLR 301]
In my opinion, the degree of culpability of the plaintiff, if any, is minor compared with that of the defendants. The defendants were in charge of the building site and it was their failure to provide appropriate access to the first floor of the home unit which posed a risk of injury to the plaintiff and others. They had it within their power to control the conduct of tradespersons with regard to appropriate safety measures. Absent that control, it was entirely predictable that a tradesman such as the plaintiff would take conditions as he found them and, without pausing to consider the danger, make use of whatever means of access to the first floor were readily at hand. The fact that a ladder was already in position would have suggested to a reasonable person that it was being used for the purpose of access by others and that it was regarded by others as adequate for the purpose. Presented with a ladder in place, a person in the position of the plaintiff would be unlikely to seek out an alternative means of access for reasons of convenience and, quite possibly, also because of a reluctance to signal that what was acceptable to others was not acceptable to him. Accordingly, I decline to find contributory negligence on the part of the plaintiff.
Damages
Mr Diehm submitted that although the plaintiff, at least initially, would have sought to earn his living as an entrepreneur “it is reasonable to proceed on the basis that the measure of the plaintiff’s pre-accident earning capacity reflected at least award wages for painters’ assistants and retail take-away food workers”. Mr Grant-Taylor did not object to this approach and I accept that it is legitimate.
Mr Diehm argued that in relation to future economic loss, because of the plaintiff’s history of physical and psychiatric injuries and because he has been out of the workforce for seven years, “he is very unlikely to be viewed favourably by any employer”. He submitted, that having regard to those factors, the plaintiff’s income earning capacity should be assessed at a quarter of his pre-accident income earning capacity of $405 net per week.
For the reasons given earlier, I reject the plaintiff’s submissions that the plaintiff is unemployable or close to it. The proper measure of his future economic loss, however, is not readily ascertainable. The plaintiff’s case was based on the premise that his income earning capacity was very restricted and thus failed to address comprehensively the range of incomes obtainable in more sedentary pursuits such as console operator, parking station attendant and the like.
There is the additional difficulty, which applies to the determination of past as well as future economic loss, that the plaintiff was likely to have attempted to earn his living in various entrepreneurial fields such as his proposed export import business and the business of painting contractor. I find that the plaintiff had energy, drive and the ambition to succeed, but there is no evidence upon which I can base findings about his relevant levels of skill and judgment. Having regard to the medical evidence it is not unreasonable to suppose that the plaintiff will make further attempts to earn his living in entrepreneurial ways. He is training himself to be an artist and it seems that he has achieved a measure of (non financial) success in this field.
With regard to past economic loss the probabilities are that the plaintiff would have taken some time to establish a profitable business, assuming in his favour that such an eventuality was likely.
In assessing past economic loss, I have, with some hesitation, accepted that the plaintiff’s physical condition and depressive mood disorder effectively prevented him from working up until the date of Dr Chittenden’s report of 1 August 2000. That report recommended psychiatric counselling and the taking of anti-depressant medication over the course of six to 12 months. The evidence suggests that the recommendations were not adopted. I have no reason to suppose that if the plaintiff had followed Dr Chittenden’s advice, he would not have recovered from his psychiatric condition sufficiently to pursue any form of employment physically open to him.
I am thus unable to accept that any loss of income connected with the depressive mood disorder after 30 June 2001 was caused by the accident as opposed to the plaintiff’s conduct. In my view, the plaintiff is mentally alert and reasonably astute. The evidence does not suggest that he would experience difficulty in understanding medical advice or in implementing that advice should he decide to take it.
I thus conclude that the plaintiff’s past economic loss is a sum equal to the amount he would have earned over the period between the date of the accident and 30 June 2001 if employed as an assistant painter. The appropriate award rate at the date of trial seems to have been about $500 per week gross. Mr Diehm submits, and I accept, that the appropriate after tax sum is $400.00. The sum arrived at on this basis must discounted by 25% to allow for considerations of the nature of those discussed above including the probability that the plaintiff would have borrowed from a finance company the capital necessary to establish and conduct his business. In making this discount, I have not overlooked the fact that at the time of the accident the plaintiff, though without trade qualifications, was attempting to start a business of providing services for which trade qualifications were required.
The plaintiff’s future economic loss must take into account the loss suffered by him through the loss of the ability to earn income as a painter’s assistant or employee in some related field in the event that he should be unsuccessful in establishing himself in a profitable business.
Such assessment must accommodate the fact that the income earning avenues open to the applicant as a self-employed person have been restricted by his injuries. It is necessary also that account be taken of the plaintiff’s continuing pain. The medical evidence does not support the conclusion that it will prevent the plaintiff from working but it is likely to have some bearing on his ability to secure and retain work. I accept also that the plaintiff has suffered some residual damage to his general employability as a result of his long period of employment and because of the existence of his significant back injury.
From the material before me it emerges that the wage differential between a qualified tradesperson and an unqualified person engaging in less physical demanding pursuits (and ones for which no particular qualifications are required) is approximately $100.00 per week. That is a gross figure but I intend to allow that sum over 35 years (until age 62) in order to make allowance for the other adverse factors to which I referred earlier.
For pain suffering and loss of amenities I allow $40,000 together with interest on half of that sum at 2% per annum from the date of the accident to 30 June 2001.
I accept the plaintiff’s evidence in respect of past medical expenses and outgoings although the figure of $24,598 claimed is greatly in excess of that claimed in the final statement of loss and damage. For future medical expenses I allow a sum of $7,000 made up of a sum of $4,210 to provide for participation in a pain management programme in accordance with the advice of Mayne Health as well as medical advice, medication, physiotherapy and related travel.
The plaintiff’s damages are then calculated as follows –
Pain suffering and loss of amenities $40,000.00
Interest on $20,000 at 2 % per annum
for the 2,480 days between 18.10.94and 30.07.01 $2717.81
Past economic loss at the rate of
$400 per week for 354 weeks$141,600 less 25 percent
less $3,016 income received $103,184.00Interest on half of $103,184.00 at 5%
per annum for 2,480 days $17,527.15
Future economic loss at the rate of
$100 gross per week for 35 years
discounted to present day values $87,560.00Future medical expenses $7,000.00
Past medical, pharmaceutical and,
travelling expenses $24,598.00Interest at 5% on $12,069.05 ($24,598 less
$12,528.95 HIC benefits) over 2,480 days $4,100.18
Future loss of employees’ contributions to
superannuation calculated at 5% of the sum
awarded by future economic loss (taking into
account the possibility of the plaintiff beingself-employed) $4378.00
__________
TOTAL $291,065.14
There will judgment for the plaintiff in the sum of $291,065.14 together with costs to be assessed on the standard basis.
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