Raccanello v Motor Accident Commission
[2023] SADC 84
•12 July 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RACCANELLO & ORS v MOTOR ACCIDENT COMMISSION
[2023] SADC 84
Judgment of her Honour Judge Deuter
12 July 2023
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - GENERAL PRINCIPLES GOVERNING AWARD OF DAMAGES
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INTERACTION OF COMMON LAW AND STATUTORY DAMAGES AWARDS
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - DAMAGES FOR NON-ECONOMIC LOSS - CIVIL LIABILITY LEGISLATION MODIFICATIONS
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY - CIVIL LIABILITY LEGISLATION MODIFICATIONS
DAMAGES - ASSESSMENT OF DAMAGES IN TORT - PERSONAL INJURY - INCOME LOSS AND LOSS OF EARNING CAPACITY - PARTNERSHIP, BUSINESS OR PROFESSIONAL LOSSES
The first applicant was injured in a motor vehicle accident (the MVA) on 27 April 2014 when he was 38 years of age. The second applicant is the first applicant’s wife and, in partnership. They conduct farming and cartage businesses in the Griffith area of New South Wales. The third applicant (Rayen) is a company by which the first and second applicants operate their businesses. The fourth applicant (Wormtech) is a company established by the first and second applicants. It conducts worm farming and composting businesses.
The MVA was a significant head on collision. As a result, the respondent’s insured driver suffered fatal injuries. The applicants’ claims are brought against the respondent pursuant to s113 of the Motor Vehicles Act 1959 (SA). The respondent accepts responsibility for the driving of its insured driver, as being the sole cause of the accident. An agreed 25% reduction is applied to all applicants’ damages pursuant to s49(3) of the Civil Liability Act 1936 (CLA) as a result of the first applicant’s failure to wear a seat belt. The applicants’ claims at trial concerned the assessment of damages.
The first applicant claims that as a result of the MVA he sustained an injury to his cervical spine at the C6/7 level for which he required disc replacement surgery. He also claims that he suffered pure mental harm including a Post Traumatic Stress Disorder, Major Depressive Disorder and Substance Use Disorder. He claims damages by way of general damages for his pain and suffering; his past and future need for medical treatment; and his need for past and future domestic care and assistance. In relation to economic loss the first applicant claims past and future loss of earning capacity; loss of past income; the loss of the opportunity to obtain a commercial advantage or benefit form the accumulation of assets; and losses suffered as a result of having to sell capital assets (namely water entitlements) after the MVA.
The second applicant claims damages suffered by her, consequent upon the first applicant’s injuries. These include impairment and loss of consortium pursuant to s65 of the CLA; business losses pursuant to s66 of the CLA; and losses occasioned by the sale of capital assets.
Rayen claims damages in per quod servitium amist (per quod), and generally for losses suffered to 30 June 2016, resulting from the first applicant’s incapacity as an employee and working director. Wormtech also claims damages in per quod for the loss of income and profit as a result of being deprived of the first applicant’s services.
All issues were in dispute at trial, including the extent of the first applicant’s injuries and his reduced capacity for work. In particular the credibility and reliability of the evidence of the first and second applicants was challenged. This also led to a challenge of the medical evidence and the extent of the first applicant’s injuries generally and, relative to pre-accident medical and drug related issues. There was a significant contest on the expert medical evidence, although no evidence regarding the first applicant’s psychiatric injuries was led by the respondent. All parts of the applicants’ claims were challenged. There were issues raised regarding the extent of the first applicant’s drug and alcohol use after the MVA and, its connection to the MVA.
Several legal issues required determination:
(i) Whether Wormtech was precluded from pursuing a per quod after having filed an Acceptance of Offer on liability, but without any judgment having been entered. The respondent argued that at the time the formal Acceptance was filed, the claims pleaded by the applicants ‘merged in the inchoate right to enter a judgment’, and this was enough to exclude the claim.
(ii) Whether the respondent could tender medical reports of two medical experts relating to the first applicant’s injuries arising from a Workers Compensation claim in 2008. One report came from a doctor of an unknown speciality, Dr Khalid Qidwar, and the other from a psychiatrist, Dr Ishrat Ali. Neither doctor was arranged to give evidence. The first applicant did not adopt the medical reports in his evidence. He had limited recall of attending upon Dr Quidwar, and none of seeing Dr Ali.
The respondent relied upon s53(1) of the Evidence Act 1929 (SA) to argue that the reports were business records and should be admitted for all purposes, including the truth of their contents. The respondent provided no evidence as to whether the two doctors could have been called to give evidence. The applicants opposed the tender of the reports upon the basis that the respondent’s purpose was to treat the first applicant’s statements to the doctors as prior inconsistent statements. In all the circumstances it would be contrary to the interests of justice to admit the two reports.
(iii) Whether the applicants could tender two medical reports of the psychiatrist, Dr Kutlaca prepared by him after speaking to the first applicant after he had completed his evidence, but without the first applicant being recalled. The respondent objected to the tender as the content was based on hearsay evidence.
(iv) The impact upon the evidence of the second applicant being present in the courtroom during her husband’s evidence over five-plus days. The respondent submitted that by hearing the first applicant’s evidence there was an impact upon the utility and weight that could be given to the second applicant’s evidence and that at times this led to ‘patent reconstruction’. The applicants submit that as a result of the first applicant’s psychiatric disorders and his confusion in court that the evidence of the second applicant should at times be preferred, particularly as she is his business partner and a director and shareholder of both Rayen and Wormtech.
Held:
(1) In relation to the legal issues as argued:
(i) That at the date of the trial there had been no judgment entered after the applicants' Acceptance of Offer had been filed, despite opportunity being offered to the respondent at earlier hearings to apply for such judgment. On the facts, the respondent was not taken by surprise or prejudiced by the amendment of Wormtech’s claim. This was not a factual scenario where principles of res judicata or estoppel applied. Wormtech was not precluded from pursing a per quod claim at trial.
(ii) That adopting the wording of s53(2) of the Evidence Act 1929 (SA), and the principles set out by Lander J in Hillier v Lucas (2000) 81 SASR 451, it would be contrary to the interests of justice to allow admission of the reports of Dr Qidwai and Dr Ali as to the truth of the contents of those reports without the doctors giving evidence. The medical reports were admitted for the sole purpose of being noted as documents produced in the first applicant’s 2008 WorkCover claim.
(iii) That adopting the principles set out in Ramsey v Watson (1961) 108 CLR 642 the two additional reports of Dr Kutlaca were admitted but only to the extent of his observations of the first applicant, and his conclusions based upon those observations. Any evidence of what the applicant said to Dr Kutlaca was excluded as hearsay evidence.
(iv) That the second applicant impressed as a reliable and thoughtful witness, and as an intelligent and strong woman who made her own decisions. She had been aware of the first applicant’s poor post-accident behaviour, including serious illicit drug use and infidelity, since 2019. She was aware of his psychological challenges after the MVA. She had time well before trial to reach her own conclusions regarding the relevant facts in this matter. The second applicant’s evidence was not disregarded on the basis of not being her true recollection of events. Careful review of all evidence was required to determine each issue in dispute.
(2) In relation to the claims for each applicant, damages are assessed upon the basis that:
The first applicant sustained a C6/7 cervical spine injury in the MVA, for which he required surgery and rehabilitation, together with pure mental harm resulting from the circumstances of the MVA, and the death of the insured driver.
The need for the first applicant's C7 disc replacement surgery on 26 August 2014 was caused by the MVA. This is a finding reached upon assessment of all the medical evidence, and taking account of the first applicant’s pre-accident neck symptoms, including C5/6 fusion surgery in 2008. Appropriate discounts are applied to take account of the first applicant's pre-accident injuries. These did not stop him working long hours and performing heavy work duties before the MVA.
The first applicant’s pure mental harm by way of a Major Depressive Disorder, Post-Traumatic Stress Disorder and Substance Use Disorder, that led to two periods of in-patient rehabilitation, form part of the assessment of damages upon the basis that they led to a decline in his functioning and significant illicit drug and alcohol use. He requires life-long treatment for his disorders. The first applicant’s extensive substance abuse after the MVA was part of his psychological injuries that led to him developing a severe Substance Use Disorder.
(i) The first applicant’s non-pecuniary losses
(a) Damages for non-economic loss are assessed pursuant to s52(3) of the CLA, upon the basis that the dominant injury of his multiple injuries is the C6/7 injury, and the applicable ISV item number is 81 with a range of 16 to 40. Within that range an ISV of 24 is applicable. To reflect the level of adverse impact of the first applicant’s multiple injuries, primarily his psychiatric injuries, the ISV is increased by 50% (rounded up) to 36, resulting in damages of $38,000.
(b) The evidence of the occupational therapist Ms Jenny Wise is preferred to that of Ms Susan Dinley, and damages for past and future care and services are assessed upon her evidence, and that of the medical experts. Damages are assessed at $5,590.00 for past paid services, and at $325,923.40 for future care and services.
(c) As a result of the first applicant lodging a WorkCover claim after the MVA, some of the $137,949.72 claimed for past medical expenses have been paid by WorkCover the insurer and reimbursed by the respondent. The sum of $137,445.54 of the expenses claimed are found upon the evidence to be reasonable expenses. Of this sum, payments by the respondent of $48,931.00 are taken into account.
(d) Upon all the evidence a sum of $106,250.00 is assessed for future medical expenses including travel.
(ii) Consortium claim
The second applicant’s claim in consortium is assessed pursuant to s62(5)(1) of the CLA, on the basis that her relationship with the first applicant has been seriously impacted by both his physical and psychiatric injuries. Those damages are assessed at $50,000.00.
(iii) Pecuniary losses
Damages for financial losses are claimed on different bases by each applicant.
(a) Damages for any loss suffered by Rayen and Wormtech are only to be assessed on a per quod basis. Neither company has legal standing to be awarded damages for any loss, beyond loss flowing from the loss of services, provided to them by the first applicant.
Damages in per quod are assessed upon the basis of the cost of substitute labour to replace the first applicant, and/or the loss of profit attributable to the loss of his services as being unique, specialised skills and irreplaceable. At the date of the MVA, Mr Raccanello was the driving force behind both Rayen and Wormtech. Damages in per quod are not to be reduced by 20% pursuant to s56A(5) of the CLA as they are not damages awarded for loss of earning capacity.
Rayen’s damages include a sum that was paid by the Workers Compensation insurer as replacement wages of $35,227.18. The respondent has already repaid the insurer that sum at 100%. Taking that total sum into account, Rayen’s claim in per quod is assessed at $148,200.00.
Wormtech’s damages are assessed from 1 June 2019, on the basis of the cost of replacement labour, taking account of the medical evidence regarding the first applicant’s long term capacity for work. Past losses are assessed at $137,150.00 and future losses at $535,975.00, on the basis that the first applicant will only work to 54 years.
(b) The first applicant accepts that if damages are payable to Rayen and Wormtech in per quod, no damages are payable to him for past lost of earning capacity. Damages are assessed for future economic loss on the evidence that he will not be able to work for Wormtech beyond 54 years of age. These are assessed at $308,000.00, in addition to lost superannuation entitlements of $36,960.00.
(c) the first and second applicants claim for the loss of the opportunity to obtain a commercial advantage or benefit from 300mgl of water entitlements, that were sold after the MVA as a result of the first applicant’s injuries preventing him from returning to cartage work and thus reducing their cashflow. The sale of the water entitlements resulted solely from pressure placed upon them by the bank after the MVA. Applying the comments of the High Court in Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332 and Berry v CCL Secure Pty Ltd [2020] HCA 27, the assessment of the value of the lost opportunity is $111,051.00 to the date of trial and $1,219,174.25 for future losses. Those damages are divided equally between the first and second applicants.
There will be judgment as follows based upon the following:
(1) The first applicant – Mr Raccanello
Damages assessed at $1,567,756.06
Less 25% $391,939.02
$1,175,816.98
Less amounts paid by respondent $48,931.00
TOTAL $1,126,885.98
(2) The second applicant – Mrs Raccanello
Damages assessed at $659,587.13
Less 25% $164,896.78
TOTAL $494,690.35
(3) The third applicant – Rayen Estates
Damages assessed at $148,200.00
Less 25% $37,050.00
$111,150.00
Less amounts paid by the respondent $35,227.18
TOTAL $75,922.82
(4) The fourth applicant – Wormtech
Damages assessed at $673,125.00
Less 25% $168,281.25
TOTAL $504,843.75
Motor Vehicles Act 1959 (SA); Civil Liability Act 1936 (SA) ss 52, 65, 66; Uniform Civil Rules 2020 (SA); Evidence Act 1929 (SA) s 53(1); Workers Compensation Act (NSW)1987, referred to.
Husher v Husher (1999) 197 CLR 138; Barclay v Penberthy (2012) 246 CLR 258; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; Blair & Perpetual Trustee Co Ltd v Curran (Adam’s Will) (1939) 62 CLR 464; Carl Zeiss Stiflung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 85; Ramsay v Pilgram (1968) 118 CLR 271; Chamberlain v Deputy Commissioner of Taxation (ACT) (1988) 164 CLR 502; Nau v Kemp & Associates Pty Ltd t/a as Active Working Solutions (2010) 77 NSWLR 687; Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572; Mandeville v Better Lending Pty Ltd [2021] SASCA 28; Darvall McCutcheon (a firm) v HK Frost Holdings Pty Ltd (in Liq) (2002) 4 VR 570; S P Hywood Pty Ltd v Standard Chartered Bank Ltd Unreported Judgment No. S3764, delivered 21 December 1992; Darvall McCutcheon (a firm) v H K Frost Holdings Pty Ltd (in Liq) (2002) 4 VR 570; Manly Municipal Council v Skene [2002] NSWCA 385; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Ramsay v Watson (1961) 108 CLR 642; Hillier v Lucas (2000) 81 SASR 451; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; R v Pangallo (1989) 51 SASR 254; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; WorkCover Corporation (Princess Homes) v Zollo [1997] SAWCAT 5; Ivkovic v Rinaldi (1980) 25 SASR 516; Watson v Foxman (1995) 49 NSWLR 315; Savril Contractors Ltd v Bank of New Zealand [2004] NZCA 4; Plumridge v Pandelis [2022] SADC 42; Majkic v Bonanno [2008] NSWCA 253; Van Gervan V Fenton (1992) 175 CLR 327; CSR Ltd v Eddy [2005] HCA 64; Kars v Kars (1996) 187 CLR 354; Purkess v Crittenden (1965) 114 CLR 164; Watts v Rake (1960) 108 CLR 158; Yates v Jones (1990) Aust Torts Reports 67; Commonwealth of Australia v McLean (1996) 41 NSWLR 389; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Blaxter v Commonwealth of Australia [2008] NSWCA 87; CSR Ltd v Eddy (2005) 80 ALJR 59; Griffiths v Kerkemeyer (1977) 139 CLR 161; Garland v Clifford (1996) 67 SASR 47; Stewart v Jacobsen [2000] SASC 198; Sharman v Evans (1977) 138 CLR 563; Kite v Malycha (1998) 71 SASR 321; Amaca v Werfel (2020) 138 SASR 295; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL; Poseidon Ltd v Adelaide Petroleum NL (1994) 179 CLR 332; Fox v Wood (1981) 148 CLR 438; Barclay v Penberthy (2012) 246 CLR 258; Argent Pty Ltd v Huxley [1971] Qd R 331; Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432; Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571; Ryan and Anor v AF Concrete Pumping Pty Ltd and Anor [2013] NSWSC 113; Knott Investments Pty Ltd & Ors v Fulcher [2014] 1 Qd R 21; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; Tippett v Fraser (1999) 74 SASR 522; Montemaggiori v Wilson [2011] WASCA 177; Kostik v Giannakopoulos (1989) 152 LSJS; Scott v Bowyer [1998] 1 VR 207; Toohey v Hollier (1955) 92 CLR 618; Andrewartha v Andrewartha [No 1] (1987) 44 SASR 1; Markellos v Wakefield (1974) 7 SASR 436; Andrewartha v Andrewartha [1987] SASC 9715; Mann v Flinders Medical Centre [1999] SASC 236; Slattery v Beare, Brambles Aust Ltd & Fletcher [2001] SADC 44; Elliot v Andrew [2009] SADC 31; Berry v CCL Secure Pty Ltd [2020] HCA 27; Amaca Pty Ltd v Latz (2018) 264 CLR 505, considered.
RACCANELLO & ORS v MOTOR ACCIDENT COMMISSION
[2023] SADC 84Contents
Civil
Nature of the case
Factual background
Matters to be determined
(i) Liability
(ii) Per Quod claim
(iii) Key issues
(iv) Damages issues
Procedural Matters
(i) The per quod claims
(ii) Estoppel plea – Wormtech’s per quod claim
(a) The background facts
(b) The Respondent’s argument
(c) The Applicants’ argument
(d) Decision
(iii) Issues of contentious medical evidence
(iv) Mrs Raccanello’s presence in the court room
Evidence overview
Credit
Reliability
Facts
1. The Raccanellos’ background
(i) The farming activities – pre-MVA
(a) Apricots
(b) Cartage business
(c) Creation of Wormtech
(d) Grapes
(e) Severe weather events
(f) Dealings with the bank
(ii) Financial position before MVA
(a) General position
(b) Plans to sell farming assets
(c) Pre-MVA financial analysis
(iii) Mr Raccanello’s pre-accident injuries and conditions
(a) Left knee injury
(b) Watermelon incident
(c) 2006 Utility accident
(d) 2008 Cervical Spine Discectomy and Fusion
(e) 2011 cervical spine pain
(f) Neck pain and cervical spine degenerative arthritis
(g) Lumbar spine symptoms
(h) Illicit drug and alcohol use
2. Mr Raccanello’s MVA injuries and treatment
(i) Immediate post MVA treatment
(ii) Disc replacement surgery and recovery
(iii) Return to work
(iv) Return to work to discharge from the Hills Clinic (1 July 2016)
(a) 2014 Worker’s compensation claim
(b) Farming businesses
1. Cartage business
2. Apricots
3. Grapes
4. Wormtech
(c) Bank pressures
(d) Sale of assets
(e) Mr Raccanello’s Psychological issues
(f) Drug and alcohol use
(g) Commencement of work at Carrathool
(v) 2016 Workers Compensation Claim
(vi) Return to work until admission to Sivana Clinic, Bali (2 October 2019)
(a) Carrathool
(b) Drug use/drug addiction
(c) Mr Raccanello’s physical and psychiatric injuries
(vii) Sivana admission (2 October 2019) until start of trial (7 March 2022)
(a) Treatment at Sivana
(b) Carrathool
(c) Mr Raccanello’s physical injuries / capacity
(d) Restructure of Wormtech
(e) Financial performance of Raccanello’s business to trial
(f) Mr Raccanello at trial
Assessment of medical opinions
1. Principles that guide analysis
2. Application of the CLA in the analysis of the medical evidence
3. Medical assessment of Mr Raccanello’s injuries
(a) Spinal injuries
(i) Treating Doctors
(ii) Medico-Legal examiners
(1) Dr Patrick – General Surgeon
(2) Dr Sekel – Occupational Physician
(3) Dr Shahzad – Occupational Physician
(4) Dr Andrew Keller – Occupational Physician
(5) Dr Vidyasagar Casikar – Neurosurgeon
(6) Dr Jezukaitis – Occupational and Environmental Physician
(b) Psychiatric injuries
(1) Dr Jeremy O’Dea, Consultant Forensic Psychiatrist
(2) Dr David Kutlaca, Consultant Forensic Psychiatrist
(c) Occupational therapy assessments
(1) Ms Jenny Wise, Occupational Therapist
(2) Ms Susan Dinley, Occupational Therapist
4. Findings on injuries and impairments
(a) Physical injuries
(b) Psychiatric disabilities / drug and alcohol addictions
Assessment of damages
1. Assessment of the ISV
(a) The dominant injury
(b) Multiple injuries
(c) Conclusion - ISV
2. Damages
(a) Non-economic loss
(b) Past gratuitous care and assistance
(c) Past paid care and assistance
(d) Future Care and Assistance
(e) Past medical and travel expenses
(f) Future medical expenses
(g) Pecuniary losses
(1) Background/general principles
(2) Per Quod Servitium Amisit
Conclusion
(3) Past pecuniary losses
(i) Loss of profit from sale of water entitlements
(a) Cause of loss
(b) Measure of loss
(c) Assessment of damages
(ii) Rayen Estates – per quod claim
(a) Cartage income
(b) Apricots
(iii) Wormtech – per quod claim
(iv) Mr Raccanello
(4) Future economic loss
(i) Wormtech – per quod claim
(ii) Mr Raccanello
(5) Mr Raccanello’s Future Loss of Superannuation Entitlements
(6) Mrs Raccanello’s damages
(i) Loss of consortium
(ii) Pure economic loss by sale of water entitlements
(7) Summary of Damages
(xii) Interest
ADRIAN RACCANELLO, DEANNE RACCANELLO,
RAYEN ESTATES PTY LTD, WORMETECH PTY LTD
VMOTOR ACCIDENT COMMISSION
Civil
Nature of the case
Adrian Raccanello (Mr Raccanello) was injured in a motor vehicle accident on 27 April 2014 (the MVA) when he was 38 years of age. He, his wife Deanne (Mrs Raccanello) and two of their companies claim damages pursuant to Part 4 of the Motor Vehicles Act 1959 (SA) (MV Act), and Part 8 of the Civil Liability Act 1936 (SA) (CLA), for the consequential losses resulting from the MVA.
Mr Raccanello is a farmer from the Riverina area of New South Wales. With his wife, they have operated farming businesses from their property at Yenda (the Yenda property), owned through an equal partnership A & D Raccanello (the partnership). Mr and Mrs Raccanello are the directors and joint shareholders of the third applicant, a company that operates their farming and cartage businesses. They are also directors of the fourth applicant.
Mr Raccanello’s claim includes a claim for past and future loss of earning capacity and loss of income. He also claims the loss of opportunity to obtain a commercial advantage or benefit from the accumulation of assets; and losses suffered as a result of having to sell capital assets. Mr Raccanello also claims general damages for non‑economic loss pursuant to s 52 of the CLA; the cost of past and future medical treatment; the need for past and future domestic care and assistance; and interest.
Mrs Raccanello claims damages for losses suffered by her, consequent upon the injuries suffered by her husband. Mrs Raccanello’s claim is for impairment and loss of consortium pursuant to s 65 of the CLA; business losses, including capital losses, that she has suffered, and will continue to suffer due to Mr Raccanello’s reduced participation in the partnership and the businesses conducted jointly by them; and losses suffered as a result of having to sell capital assets. The business losses are claimed pursuant to s 66 of the CLA.
The third applicant, Rayen Estates Pty Ltd (Rayen), is a company operated by Mr and Mrs Raccanello. It operates their farming and contract carting businesses, as Trustee of the Rayen Family Trust (the Trust). Until 9 December 2020 Rayen was the sole shareholder of the fourth applicant Wormtech Pty Ltd (Wormtech). Since that time it has held 75% of Wormtech’s share capital. Rayen claims damages for losses suffered due to being deprived of Mr Raccanello’s labour on a per quod servitium amist (per quod) basis for losses suffered to 30 June 2016. These result from Mr Raccanello’s incapacity as an employee and working director of the company.
Wormtech is a company established by Mr and Mrs Raccanello before the MVA. It operates from both the Yenda property and a property leased at Carrathool (Carrathool). Wormtech claims damages on a per quod basis for losses caused as a result of being deprived of Mr Raccanello’s services as an employee and director after the MVA.
In the alternative to the per quod claims, Mr and Mrs Raccanello claim damages for their losses suffered as a result of Rayen’s reduced income and consequential losses, pursuant to the principles in Husher v Husher.[1]
[1] (1999) 197 CLR 138.
Factual background
At about 3.00pm on Sunday 27 April 2014, Mr Raccanello was driving a 2001 Kenworth Prime Mover (the Kenworth) set up as a B-double truck on Copperhouse Road, near Burra in South Australia. This was part of a cartage job he was performing for Rayen, transporting worms for Wormtech. As he approached a dogleg in the road at 100 kph, he became aware of a white vehicle travelling towards him, and then crossing onto his side of the road (the third-party driver).
Mr Raccanello applied his brakes and attempted to manoeuvre the Kenworth out of the path of the third-party driver. Despite these attempts to take evasive action, and his reduction in speed to an estimated 60 kph, a head on collision occurred. As a result of the collision the third-party driver died.
Mr Raccanello sustained bodily and psychiatric injuries as a result of the MVA. He was very distressed at witnessing the third-party driver’s body after the accident, squashed in her car with her lifeless hand up to the windscreen; and by seeing the significant damage to the Kenworth after it had caught fire.
Mr Raccanello claims that he has ongoing physical and psychological impairments as a result of the MVA. The extent of these impairments must be assessed for the impact they have had on his life, and will continue to have, into the future. It is also alleged that, significant illicit drug and alcohol use after the MVA, was a result of his response to the accident and its consequences.
The MVA was a very serious and frightening event for Mr Raccanello. The impact caused the Kenworth to lose all power, the engine to cut out, and steering to be lost. The truck left the road and went across a drain and through a fence before it stopped in a farming paddock. Mr Raccanello quickly left the cabin after hearing hissing noises and just before it caught fire.[2] Photographs that form part of a booklet of photographs,[3] show the extent of the damage to the Kenworth, and where it was found in the paddock after the MVA.[4] These photographs confirm the severity of the collision.
[2] T126.11-T127.11.
[3] A3.
[4] A3 Photographs 27-42 (inclusive).
I have also viewed 12 photographs of the scene of the accident provided on a limited basis subpoena by SA Police.[5] These photographs, which include photographs of the very severe damage to the white car involved, confirm the gravity and horrific nature of the MVA. They confirm Mr Raccanello’s evidence regarding the position of the third‑party driver as he saw her after the accident. Her squashed and lifeless body, including her hand over the inflated air bag, is clearly visible through the car windows.
[5] A7.
Matters to be determined
(i) Liability
As a result of the death of the third-party driver the applicants bring their claims against the Motor Accident Commission (the MAC) pursuant to s 113 of the MV Act. Liability for the accident has been agreed. The MAC accept responsibility for the driving of the third-party driver, as being the sole cause of the accident. However, a 25% reduction on all of the applicants’ damages is to be applied as a result of Mr Raccanello not wearing a seat belt at the time of the MVA.[6]
(ii) Per Quod claim
[6] This is the statutory discount set out in s 49(3) of the CLA.
On 24 September 2021 the MAC filed a Formal Offer, described as a Judgment Offer (the Offer).[7] The terms of the Offer were that the MAC offered to ‘consent to … Judgment for the Applicants on liability for 75% of their damages to be assessed…’. The applicants filed an ‘Acceptance of Formal Offer – Liability’ on 8 October 2021 (the Acceptance of Offer).[8] They accepted the Offer, being ‘judgment for the applicants on liability for 75% of their damages to be assessed’.
[7] FDN 42.
[8] FDN 45.
After the Acceptance of Offer was filed, Wormtech amended its claim to seek damages on a per quod basis relative to the loss of services provided to them by Mr Raccanello, resulting from his MVA injuries.[9] In response, the MAC amended their defence to plead that Wormtech was precluded from pursuing a new cause of action, being the per quod claim, after having filed the Acceptance of Offer.[10] Whether the per quod claim can be pursued by Wormtech is an issue to be determined.
(iii) Key issues
[9] FDN 120 at [31].
[10] FDN 125 at [7A] and [18.1(aA)].
The key issues to be determined in this matter are:
1.the credibility and reliability of the evidence of Mr and Mrs Raccanello generally, and on key topics;
2.factual and medical issues regarding the impact and long term effects upon Mr Raccanello resulting from the MVA;
3.the quantum of damages for each applicant as assessed pursuant to:
3.1 the provisions of the CLA; and
3.2 the common law as applicable to the per quod and Husher v Husher claims.
In determining these key issues, I take account of the many evidentiary issues raised by the parties, both in written closing submissions and in oral argument. I do not intend to write a treatise on the law of evidence and will address evidentiary disputes where it is necessary to do so in making my findings.
The assessment of Mr Raccanello’s injuries, and thereby the assessment of any damages to be awarded to the applicants, relies upon a close examination of Mr and Mrs Raccanello’s evidence; a consideration of the clinical assessments and diagnoses made by Mr Raccanello’s treating doctors and allied health professionals; and the resolution of medico-legal opinions regarding the nature, extent and long-term prognosis of his MVA caused injuries and impairments.
The assessment of any financial losses suffered by the Raccanellos’ businesses similarly requires close examination of the evidence of the Raccanellos regarding those businesses and the impact of the withdrawal, if any, of Mr Raccanello’s labour and business acumen from them after the MVA. The factual basis of these claims each rely upon close examination of the evidence of not only the Raccanellos, but also several other witnesses who have worked with or for the Raccanellos, and the expert accounting evidence of Mr Ivy (Mr Ivy) and Mr Peter Holmes (Mr Holmes) regarding the extent of any losses. In addition, the legal dispute regarding the extent of any claim in per quod brought by both Rayen and Wormtech must be determined. This again involves an assessment of Mr Raccanello’s actual role in each of the businesses, relevant to the legal basis of finding that a common law action in per quod exists.
In this matter, notwithstanding the clinical assessments of Mr Raccanello’s treating doctors which support his case, suggestions emerged within the respondent’s case that Mr Raccanello was exaggerating the extent of both his physical and psychological impairments. It was also suggested that he was dishonest by concealing pre‑MVA injuries and physical impairments; and illicit drug and alcohol use both before and after the MVA, including the extent thereof. The reasonableness and the appropriateness of those suggestions, and those made by counsel for the MAC regarding Mr and Mrs Raccanello’s credibility must be evaluated and reconciled against the evidence as a whole.
The MAC claims that the applicants’ case is materially overstated as Mr Raccanello’s MVA caused injuries have largely resolved; and only limited economic loss has been occasioned. Mrs Raccanello’s claims are also said to be inflated, with the claim in consortium described as ‘controversial’.
(iv) Damages issues
When all matters are reconciled the essential damages questions that must be determined are:
1.Were there any relevant and/or important inconsistencies in Mr Raccanello’s history and presentation?
2.What was the extent of Mr Raccanello’s pre-MVA physical injuries, comorbidities, and illicit drug and alcohol use? Are these relevant to the ultimate assessment of damages?
3.In relation to Mr Raccanello’s illicit drug and alcohol use following the MVA:
3.1was it masking the extent of his physical injuries?
3.2was it causally related to the MVA?
4.What was Mr Raccanello’s physical capacity before the MVA? To what extent has it been impacted by the MVA?
5.Did the MVA cause any psychiatric illnesses? If so, what type of psychiatric disorder, and how has it impacted Mr Raccanello’s functioning and capacity?
6.What was the impact of all these matters upon the applicants’ claims for past and future economic loss; Mr Raccanello’s claim for non‑economic loss, and past and future care, and Mrs Raccanello’s claim for consortium.
Procedural Matters
There are several procedural and/or evidentiary matters that I will address before considering the applicants’ claims in detail.
(i)The per quod claims
The MAC denies that both Rayen and Wormtech can establish per quod claims at common law. They rely upon the principles set out by the High Court in Barclay v Penberthy,[11] as they are to be applied to the facts of this matter.
[11] (2012) 246 CLR 258.
The application of the legal principles cannot be determined until findings of fact have been made regarding Mr Raccanello’s role in Rayen and/or Wormtech; how that role changed, if at all, after the MVA; the manner in which any services provided by Mr Raccanello were replaced, if at all; and the nature of any losses that flow from Mr Raccanello’s injuries and unavailability to Rayen and/or Wormtech. I will therefore not address the legal issues relative to the per quod claims until those factual findings have been made.
(ii)Estoppel plea – Wormtech’s per quod claim
I will however address the estoppel argument pleaded by the MAC in relation to Wormtech’s per quod claim relative to the applicants’ filing of the Acceptance of Offer.
(a)The background facts
It is not in dispute that at the time the Offer was filed and accepted, there was no per quod claim pleaded by Wormtech. There had however, been a per quod claim included in an earlier version of the applicants’ Statement of Claim.[12] That claim was removed when a further version (Revision 3) of the Statement of Claim was filed.[13] In their closing submissions, the applicants explain that the removal of Wormtech’s per quod claim occurred as a result of the expert forensic accountant, Mr Holmes not being able to identify a basis upon which to calculate Wormtech’s losses on a per quod basis. [14]
[12] Statement of Claim – Revision 2 filed on 28 January 2021(FDN 24).
[13] Statement of Claim – Revision 3 filed on 19 May 2021 (FDN 38).
[14] FDN 160 at [748].
The issue of further revisions to the pleadings being required as up-dated expert accounting evidence was obtained, was ventilated by the parties at pre‑trial directions hearings between 13 March 2021 and 18 May 2021. The parties were aware that further expert reports were being obtained to assess any losses suffered by Rayen and Wormtech as a result of the MVA. The MAC was on notice that the issue remained a live one.
Mr Holmes prepared a second expert accounting report dated 19 January 2022 (the second Holmes report).[15] The applicants argue that the second Holmes report provides a basis for establishing and quantifying the losses of Wormtech’s per quod claim. On 15 February 2022, the applicants sought leave to further amend the Statement of Claim to re-instate the per quod claim on behalf of Wormtech, in addition to making other changes. This application was made after the applicants had filed the Acceptance of Offer on liability on 8 October 2021.
[15] A93.
At a further pre‑trial hearing before me on 15 February 2022, it was clearly stated that as part of the revisions to the Statement of Claim, the applicants sought to revive the per quod claim in respect of Wormtech based upon the second Holmes report.[16] As a result of the application to amend the Statement of Claim, the MAC was not prepared to enter judgment on the Acceptance of Offer at that time, and not until the impact of the proposed revisions had been fully considered. This was particularly in relation to the revival of Wormtech’s per quod claim. It was stated that the MAC would not be prejudiced in addressing the revised claim but, its position was reserved until trial.[17] I granted leave to the applicants to file and serve the proposed Revision 4 of the Statement of Claim.[18] This was filed on 21 February 2022.[19]
[16] T(15.2.22) 5.29-6.2.
[17] T(15.2.22) 6.5-9.23.
[18] FDN 113, Record of Outcome.
[19] FDN 120.
A revised defence was filed by the MAC on 24 February 2022.[20] By that defence, it was pleaded that by filing the Acceptance of Offer, judgment was to be entered on all claims as formulated in the Statement of Claim – Revision 3 filed on 19 May 2021.[21] Wormtech’s cause of action pleaded in per quod in Revision 4 of the Claim was foreclosed and merged by that acceptance.[22]
[20] Defence – Revision 3 (FDN 125).
[21] This is a typographical error in the Respondent’s Defence as the relevant Statement of Claim at the time the Acceptance of Offer was filed was Revision 3 (FDN 38).
[22] FDN 125 at [7A] and [18.1(aA)].
The applicants submit, not disputed, that the MAC obtained an answering expert accounting report from Mr Martin White, (Mr White) dated 4 March 2022 that ‘… challenged the factual and accounting basis for the Wormtech per quod claim’, as had been done in his earlier report of 14 July 2021.[23] The MAC’s own expert had therefore dealt with the Wormtech per quod claim, including its quantification, well before the Acceptance of Offer was filed. The applicants submit that the MAC is not prejudiced in the presentation of its case. This includes in its response to Wormtech’s per quod claim.[24]
(b)The Respondent’s argument
[23] FDN 160 at [748].
[24] FDN 160 at [749].
The MAC argues that the claims as pleaded by the applicants ‘… at the time of the formal acceptance of the judgment offer have merged in the inchoate right to enter a judgment that reflects acceptance of the offer’. All claims for liability were resolved by the Acceptance of Offer, and therefore any new claim by Wormtech, is a fresh action that cannot be maintained.[25]
[25] FDN 161 at [536].
The MAC relies upon the Uniform Civil Rules 2020 (UCR) related to offers and acceptance:
Formal Offer -UCR 132.4
(1)A party (the offeror) may file a document making a formal offer to another party (the offeree) in the prescribed form to resolve a proceeding or any part of a proceeding (formal offer)—
(a) in terms of a judgment to be entered upon acceptance (a judgment offer).
…
Acceptance of formal offer – UCR 132.7
(1)Provided that it remains open for acceptance, the offeree may accept a formal offer or, if the offer contains alternatives, an alternative contained within a formal offer by filing and serving on each other party to the proceeding an acceptance of formal offer (a formal acceptance) in the prescribed form.
…
Implementation of resolution – UCR 132.8
(1)When a judgment offer is accepted, the Registrar may—
(a) enter judgment in terms reflecting the accepted judgment offer;
…
Failure to comply with resolution terms – UCR 132.9
If a party fails to comply with the terms of an accepted offer, the Court may—
(a) enter judgment or make orders to give effect to the terms of the resolution;
The MAC argues that these rules in combination make it clear ‘that it is the acceptance of the judgment offer that (immediately and without more) comprised the applicants’ claim, subject only to the assessment of damages in respect of the quantification of those (compromised) claims’.[26] This precludes any subsequent amendment to the Statement of Claim that advances a new cause of action in the proceedings.
[26] FDN 161 at [543].
A flaw in this argument is, however, that the Registrar of the court never entered any judgment. At no stage prior to the trial did the MAC seek to have a judgment entered. The parties attended before me on an interlocutory hearing on 3 December 2021, where I raised the resolution of the issues on liability. There was no request on that occasion to enter judgment.[27] At a further hearing on 15 February 2022, when the applicants were seeking leave to file Revision 4 of the Claim, the Acceptance of Offer was again raised. This was in the context of a dismissal of the applicants’ claim against the then second and third respondents. The applicants’ counsel acknowledged that the Acceptance of Offer led to judgment. Again, the MAC did not seek for judgment to be entered. I gave an opportunity to the MAC to have the judgment entered, whilst also giving time to consider the proposed revisions to the Statement of Claim. This was not accepted.[28]
[27] Transcript of 03.12.2021.
[28] T(15.2.22) 6.14-7.2.
Despite this, the MAC argues that jurisprudentially, the Acceptance of Offer gives rise to res judicata in respect of the claims pleaded at that time. As a result, the introduction of a new claim by Wormtech is not open, and would be an abuse of process by re‑litigation. It is also met by the principle established by Port of Melbourne Authority v Anshun Pty Ltd (Anshun estoppel).[29]
[29] (1981) 147 CLR 589.
Anshun estoppel prevents a party from litigating a claim that should have been pursued in earlier proceedings. In Tomlinson v Ramsey Food Processing Pty Ltd, the majority in the High Court set out that the test of whether an Anshun estoppel should apply, is one of reasonableness: [30]
The estoppel operates to preclude the assertion of a claim, or an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made, or the issue not to have been raised in the proceeding.
[30] (2015) 256 CLR 507 at [22].
A party can lose the right to litigate a claim, or an issue if it should have been raised in earlier proceedings. This is quite different to the principles of res judicata and Issue Estoppel, where a party is prevented from re‑litigating an issue or claim that has already been decided between the parties in previous proceedings.
An issue estoppel is a principle of law that prevents a party from having the same issue determined more than once. Res judicata relates to the cause of action itself being finally determined in earlier proceedings. This was explained by Dixon J in Blair & Perpetual Trustee Co Ltd v Curran (Adam’s Will), (Blair) a case concerning the interpretation of provisions in a will over 30 years after a NSW Supreme Court Judge had already, after a trial, interpretated many of those provisions:[31]
… a judicial determination directly involving an issue of fact or law disposes once and for all of the issues, so that it cannot afterwards be raised between the same parties or their privies … The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or point in suit has in the former proceedings passed into judgment, so that it merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
[Emphasis added]
[31] (1939) 62 CLR 464 at [531]-[532].
It has long been accepted that the requirements derived from the speech of Lord Guest in the case of Carl Zeiss Stiflung v Rayner & Keeler Ltd (No 2)[32] must exist before issue estoppel can apply:
1.The first decision was final;
2.The same question raised in the second proceedings has been decided; and
3.The same parties, or at least parties with the same legal interest, are involved in the second proceeding.
In relation to this second requirement, Dixon J in Blair stated:
… the estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion …[33]
[32] [1967] 1 AC 853 at 935.
[33] (1939) 62 CLR 464 at 531.
Chief Justice Barwick in Ramsay v Pilgram stated that issue estoppel requires:[34]
… that the precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties.
[34] (1968) 118 CLR 271 at 276.
These statements make it clear that for issue estoppel or res judicata to apply there must be a careful consideration of what issue the first tribunal was deciding and what findings were a legally indispensable part of that determination. There must also be a final decision or judgment on the issue. A judgment entered by consent can be res judicata. However, as set out in Chamberlain v Deputy Commissioner of Taxation (ACT)[35] (Chamberlain) a ‘judgment’ is still required. At paragraph 15 it was stated:
… that the fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment.
[35] (1988) 164 CLR 502 at 508; Nau v Kemp & Associates Pty Ltd t/a as Active Working Solutions (2010) 77 NSWLR 687 per McColl JA [64].
The difficulty of determining what was decided by a judgment where there has been no judicial determination and reasons given, was considered by Lander J in Rogers v Legal Services Commission of South Australia (Rogers) in relation to a default judgment:[36]
A judgment entered by reason of the default of another party can give rise to estoppel per rem judicatam. It has been said that a default judgment can be looked at as another form of judgment by consent, and as such, then becomes capable of giving rise to all the consequences of a judgment contained in a contested action.
The difficulty with a judgment in default is determining exactly what it is that has been concluded by the first proceedings. In New Brunswick Rail Ltd v British & French Trust Cooperation Ltd (at 21), Lord Maughan LC said, after considering the hardship and injustice that a defendant might suffer by reason of a plea of estoppel:
“In my opinion we are at least justified in holding an estoppel based on a default judgment must be very carefully limited. The true principle in such a case would seem to be that the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment; in other words, by the res judicata in the accurate sense.”
[36] (1995) 64 SASR 572 at 596.
In Rogers Lander J found that in the first proceedings no findings of fact, nor whether any cause of action was available, were ever made. The only finding was that the Statement of Claim did not disclose a cause of action. He concluded that:[37]
In those circumstances it seems to me that it cannot be said that the cause of action in the first proceedings merged into judgment. The principle of res judicata does not have application in those circumstances.
[37] Ibid at 597.
In Nau v Kemp & Associates Pty Ltd t/a as Active Working Solutions McColl JA stated that, in determining what issues a consent judgment has necessarily decided, and therefore whether issue estoppel arises, the court will: [38]
… closely examine all such evidence, if any, as is available and admissible, and, by the aid of materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to...
[38] [2010] 77 NSWLR 687 at [65].
The Court of Appeal in Mandeville v Better Lending Pty Ltd when considering the conclusions of Lander J in Rogers set out the following in relation to the issue:[39]
It is axiomatic from the above authorities that a res judicata can only be established by a final decision. The right or cause of action has merged into the judgment and no longer has an independent existence. Similarly, in the case of issue estoppel, some state a fact or law must necessarily have been decided by a judgment such that a party is estopped from agitating that fact or law in some other claim.
[Emphasis added]
When determining if an estoppel applies the court concluded that the question is always:[40]
….what has been finally determined such as to merge into judgment … the answer to that question allows identification of the subject of any res judicata by merger of a claim and any issue estoppel by determination of issues.
[39] [2021] SASCA 28 at [48].
[40] Ibid at [55].
The MAC’s case is that it is enough, by the filing of the Acceptance of Offer, that the applicants’ claims in damages as pleaded at that time merge into a right to enter judgment. The agreement to enter a judgment in favour of the applicants for 75% of damages to be assessed, is clear in its terms and sufficient to preclude the applicants, and particularly Wormtech, from amending the claim in quantum to add an additional claim in damages by a new cause of action on a per quod basis.
(c)The Applicants’ argument
The applicants argue that the MAC’s application of the law in relation to estoppel and res judicata is ‘fatally flawed’ upon the basis that:
·there has been no judgment in first proceedings;
·there are no ‘first proceedings’ and therefore no relevant ‘second proceedings’;
·in the premises, there can be no ‘second judgment’;
·absent a ‘second judgment’ there can be no res judicata, no estoppel of any sort and no abuse of process; and
·the applicants are not estopped from proceeding to judgment on Revision 4 of the Statement of Claim.[41]
[41] FDN 160 at [750]-[754].
While denying that in the absence of a judgment the principles of res judicata or estoppel can have any work to do, the applicants also submit that Wormtech’s per quod claim is not a new cause of action. They accept however that it is a distinct claim to that brought by Wormtech in Revision 3 of the Statement of Claim.
The applicants rely upon the decision in Darvall McCutcheon (a firm) v HK Frost Holdings Pty Ltd (in Liq) (Darvall)[42] to argue that the time had not yet passed for Wormtech to bring the claim in per quod. In Darvall, subsequent proceedings were brought after conclusion of first proceedings where the cause of action in dispute, while pleaded, was never canvassed at trial nor addressed in submissions. The claim, based on breach of confidence, was never determined on its merits by either the trial court, or the Full Court on appeal, in finalising the first proceedings. In the subsequent proceedings, the initial applicant claimed against its solicitors in negligence for failing to pursue a claim based on breach of confidence in the first proceedings. The respondent in the second proceedings argued that principles of estoppel, including Anshun estoppel, precluded such a cause of action. The applicant in the first proceedings could not bring a claim involving the same subject matter in different actions.
[42] (2002) 4 VR 570.
For procedural reasons the matter was heard at first instance by Finn J in the Federal Court. He found in favour of the applicant (the client). In addressing the failure to press the breach of confidence claim, it is recorded by Chernov JA in the Full Court that: [43]
… Finn J found that the appellant never advised the respondent that it was, or might have been, open to it, to apply to the full court for an order remitting the breach of confidence claim to the trial judge and that had such advice been given, the respondent would have instructed the appellant to apply for such an order. These findings were not challenged before us… his Honour further considered that had an application been made to the Full Court after it had handed down it reasons for judgment (but before the judgment was entered) for orders that the breach of confidence claim … be remitted to the trial judge on the balance of probabilities the Full Court would have made such orders. In the circumstances however, the breach of confidence cause of action merged in the judgment of the full court (in favour of the bank) and was thus lost to the respondent.
[43] Ibid at [27].
The Full Court refused the appeal. In relation to when the applicant in the first proceedings could have pursued the breach of confidence cause of action it was said:[44]
Obviously, the appropriate time to have made such an application from the point of view of the bank, and the Full Court, would have been as soon as practicable after the publication of the Full Court reasons for judgment. But the fact that such an application was not made immediately after those reasons were published, did not preclude the respondent from making it any time before entry of judgment, subject to other discretionary considerations.
[Emphasis added]
[44] Ibid at [50].
In these proceedings, there has never been any judgment entered. The applicants submit that none of the estoppel or res judicata principles apply. The application made to further revise the Statement of Claim to reinstate the per quod claim on behalf of Wormtech, after the Acceptance of Offer was filed, was never formally opposed by the MAC. The MAC acknowledged the application at the directions hearing on 15 February 2022.
The applicants argue that the factual situation before the court is no different to the situation in Darvall. The application to amend, to raise a new cause of action after reasons for judgment were given, is no different to the application to file a revised Statement of Claim before judgment is entered on an Acceptance of Offer. The MAC made no application to disallow the revision of the claim.[45] The applicants argue that the factual situation is no different to the well accepted principle that application can be made, subject to discretion, to allow amendment to a claim to raise a new cause of action at the time of an appeal.[46] They submit that ‘…the new cause of action is not precluded because the judgment appealed from does not merge the cause of action that was not before the Court at the time of judgment’.[47]
[45] UCR 69.1(3).
[46] Relying upon S P Hywood Pty Ltd v Standard Chartered Bank Ltd, Unreported Judgment No. S3764, delivered 21 December 1992, per Perry J, and the cases referred to at pp 17-19.
[47] FDN 160 at [760].
The applicants also argue that the decisions relied upon by the MAC in its submissions, do not involve circumstances similar to this action. [48] None of them concern an action where there was no judgment, determination or order in first proceedings. Rather, they involve a scenario where a party seeks to pursue the same or similar claim or issue in quite separate, subsequent legal proceedings. All of the matters to be determined in this action remain in the same proceedings.
(d)Decision
[48] FDN 161 at [546]-[560].
The principles of res judicata, issue estoppel, Anshun estoppel and abuse of process are all based upon stopping a litigant from ‘double-dipping’[49] or having ‘two bites of the cherry’[50] by the bringing of second, or subsequent proceedings. In Mandeville v Better Lending Pty Ltd & Anor, the Court of Appeal stated:[51]
Res judicata is therefore based on the underlining rationales of the principle of finality, namely that the conclusiveness of judicial decisions is recognised and that the individual can be protected from oppressive, repetitive suits.
[49] Darvall McCutcheon (a firm) v HK Frost Holdings Pty Ltd (in Liq) (2002) 4 VR 570 at [49].
[50] Ibid at [48].
[51] [2021] SASCA 28 at [39].
This is not the case before the court. In this action there is no first proceedings and no judgment. There has been no judicial determination of any issue. There are no second proceedings, and certainly no pleading that could be described as a second oppressive or repetitive suit. At pre-trial hearings in this matter, the MAC’s counsel on two occasions, when asked, did not seek for judgment to be entered after the Acceptance of Offer was filed. The MAC did not oppose the filing of Revision 4 of the Applicants’ Statement of Claim. It had the opportunity to do so on more than one occasion. In those circumstances it would be unreasonable, and not the intention of the law of res judicata or any estoppel, for Wormtech not to be able to pursue its per quod claim. The claim is brought before any judgment. It is no surprise to the MAC.
It would not be an abuse of process to allow the action to proceed upon Revision 4 of the Claim. There is no re‑litigation of any issue in doing so. There has been no judgment, and no determination of any issue in this action. There is simply an agreement reached between the parties on liability at 75% in the applicants’ favour. Importantly, that agreement was based upon the fixed statutory discount in s 49(3) of the CLA. It did not involve any judicial assessment. It was always possible following the Acceptance of Offer, for the pleadings on quantum to be revised, and I find that the agreed position on liability, and particularly absent of any judgment, did not restrict the applicants’ claims on quantum.
No causes of action in this matter have passed into judgment so that they have merged, as there simply has been no judgment, and no second proceedings. As a result, at the time the applicants sought leave to file Revision 4 of the Statement of Claim there was no judgment that had been entered that would have prevented the amendment being filed. I find that the Acceptance of Offer simply determined one aspect of the proceedings, that being liability. The assessment of damages remained to be judicially determined. I find that the only issue to merge into any judgment would be the determination of the respondent’s liability to pay damages.
There has been no assessment or agreement of the applicants’ claims in damages. The agreed issue is only in relation to liability. That agreement cannot determine the claim in damages. I find that it does not.
The MAC does not argue that it has been prejudiced in any way in the defence of Wormtech’s per quod claim. It would be difficult for them to so argue given the disclosure of several expert accounting reports, in addition to the significant amount of financial information that has been disclosed and produced by the applicants. I find that in all the circumstances, Wormtech is not estopped from advancing a claim in damages upon a per quod basis.
(iii)Issues of contentious medical evidence
There are several pieces of documentary medical evidence that the parties sought to have admitted but which are in dispute.
a) Reports produced as part of Mr Raccanello’s 2008 Workers Compensation claim
Several documents from a workers compensation file, relating to a claim made by Mr Raccanello in 2008 (the 2008 WorkCover claim), were produced upon a subpoena served on WorkCover NSW’s Claims Manager, GIO Australia (GIO). The formal tender of several of those documents is in dispute.
A claim form dated 22 October 2008 directed to WorkCover NSW (WorkCover), was tendered by the applicants.[52] This set out that on 2 October 2006, Mr Raccanello, whilst an employee of Rayen, had sustained injury to his neck and shoulders when a vehicle he was driving had rolled. These injuries had then been aggravated by his work as a farmer, particularly when driving a harvester or tractor. On 17 September 2008 Mr Raccanello underwent fusion surgery at the C5/6 level of the spine. The extent of this pre‑MVA cervical spine injury is relevant to the assessment of damages in this matter, and will be addressed later in these reasons.
[52] A5.
Two medical reports were produced as part of the subpoena of the WorkCover documents being reports of:
·Dr Khalid Qidwai, (Dr Qidwai) a doctor of unknown speciality, dated 22 September 2009;[53] and
·Dr Ishrat Ali, (Dr Ali) psychiatrist, dated 5 February 2009.[54]
Both of these reports (the medical reports) were tendered by the MAC subject to an objection from the applicants regarding their admissibility.
[53] R45.
[54] R46.
The medical reports had been obtained by solicitors acting for Mr Raccanello in the 2008 WorkCover claim. There was no evidence as to whether they were used in those proceedings. The MAC’s counsel cross‑examined Mr Raccanello in relation to the contents of the two reports, but neither doctor was called to give evidence. Both doctors in their report:
·provided a history of what they had been told by Mr Raccanello during their review of him;
·set out a diagnosis of his injuries and/or conditions based on their examination in 2009; and
·provided an assessment of his percentage disability pursuant to AMA5[55] and WorkCover NSW Guidelines, as at 2009.
[55] The 5th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA5).
The medical reports were later put to other expert medical witnesses in evidence for their comment. Those experts were asked if they would change their opinion based on the history, findings and conclusions set out in the medical reports regarding Mr Raccanello’s presentation in 2009.
Mr Raccanello has little memory of attending medical reviews with Dr Qidwai. A review of his evidence indicates a very limited, if any, recollection of the contents of either report.[56] Much of the cross‑examination regarding Dr Qidwai was asking Mr Raccanello what he was reporting to doctors, generally, concerning the 2008 WorkCover claim in September 2009. This was confusing, and went beyond what Dr Qidwai had recorded in his report.[57] In relation to an attendance upon Doctor Ali on 19 January 2009, Mr Raccanello had no recall whatsoever of that appointment.[58]
[56] T418.16-35; T420.7-16; T425.6-18; T426.17-23; T1101.17-T1102.22.
[57] T418.36-T419.6; T421.1-6; T422.14-T423.7; T423.37-T440.20.
[58] T1102.36-T1106.8.
The MAC argues that the medical reports are business records and should be admitted into evidence pursuant to s 53(1) of the EvidenceAct 1929, SA (Evidence Act) for all purposes including, the truth of their contents. This is pursuant to the principles set out by the Full Court in Hillier v Lucas (Hillier).[59]
[59] (2000) 81 SASR 451.
Section 53 of the Evidence Act provides as follows:
(1)An apparently genuine document purporting to be a business record—
(a) is admissible in evidence without further proof; and
(b) is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)A document must not be admitted in evidence under subsection (1) if the court is of the opinion—
(a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c) that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)In this section—
business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
business record means—
(a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b) any reproduction of any such record by photographic, photostatic, lithographic or other like process.
In Hillier, the plaintiff had sought to tender hospital case notes pursuant to the then s 45A of the Evidence Act. The notes contained x-ray reports and hospital case notes, including observations of medical practitioners, nurses and allied health professionals. The proposed tender by the plaintiff was to establish the truth of facts asserted by a medical specialist in a report found within the notes. After concluding that the medical records were business records capable of being tendered, Lander J for the majority set out that when determining whether to admit the documents, it was necessary to consider whether they should be admitted for any of the purposes in s 45A(2).[60] Justice Lander found that the court had to consider both sub‑sections (1) and (2) before a document was admitted into evidence to prove its contents.
[60] (2000) 81 SASR 451 at [181]. Section 45A of the Evidence Act1929 (SA) is substantially the same as the current s 53.
The applicants oppose the admission of the medical reports to prove their contents as to truth. I agree that by his evidence, it is clear that the medical reports were never adopted by Mr Raccanello. They cannot be used upon that basis to prove the truth of their contents, without calling their authors to give evidence. They also cannot be used by the MAC in relation to issues of credit and inconsistent statements pursuant to s 28 of the Evidence Act.
In opposing admission of the medical reports into evidence as business records the applicants rely upon Lander J’s comments where he noted that s 45A(2) (now s 53(2)) gives wide discretion to allow admission of documents ‘… but at the same time provides safeguards to protect parties against injustice’.[61] Justice Lander stated: [62]
In respect of s 45A, a party against whom a business record is sought to be tendered is entitled to object to the tender if the person by whom or at whose direction a document was prepared could and should be called by the party seeking to tender the document to give evidence of the matters contained in the document, or that it would otherwise be contrary to the interest of justice to admit the document in evidence.
[61] Ibid at [183].
[62] Ibid at [184].
The case of Hillier involved a medical negligence claim. The medical hypothesis upon which the claim was brought was first raised in 1991 in a radiological report of a Dr Parker. Later, in 1996, the plaintiff’s expert, Dr Morley, relying upon the report of Dr Parker and assuming it was correct, provided a report supportive of the plaintiff’s case. Dr Parker did not give evidence and the plaintiff relied upon the hospital case notes which included Dr Parker’s radiological report to establish the truth of the facts set out in that report. The records had been admitted by the trial judge for all purposes. Justice Lander overturned that ruling, finding that the hospital notes should not have been admitted for a purpose that allowed the plaintiff to rely upon Dr Parker’s medical hypothesis as proved. This had then led to Dr Morley relying on Dr Parker’s report and the opinions therein as being true: [63]
In my opinion this was a case were the person by whom the document was prepared could and should have been called by the party seeking to tender the document to give evidence of the matters contained in the document.
….
If the plaintiff wished to conduct his case upon the basis that he would adduce no radiological evidence apart from Dr Parker’s evidence. Then, in my opinion, it was incumbent upon the plaintiff to call Dr Parker to allow Dr Parker to say whether he was still of that opinion.
.…
For that reason alone, I believe the document should not have been admitted. In any event, in my opinion, in the context of this case it was contrary to the interests of justice to admit the document in evidence.
[63] Ibid at [192]-[194].
The applicants submit that the circumstances of the proposed tender of the medical reports are similar to those in Hillier. The purpose of the MAC’s proposed tender was to have Mr Raccanello’s statements to doctors treated as being prior inconsistent statements, when compared to his evidence in court regarding his physical and psychological state in 2009. The reports were to be used to challenge the veracity of Mr Raccanello’s evidence given in court. A review of the MAC’s submissions and the transcript of Mr Raccanello’s cross-examination supports that submission.[64] It is therefore argued that this use of the medical reports, in circumstances where the basis of the two doctors’ opinions has not been established, and has not been tested by the applicants, should not be allowed. No notes of the doctors’ consultations were tendered to allow the court to determine whether the doctors had correctly recorded what Mr Raccanello had told them.
[64] FDN161 at [237]-[241]; T424.37-T427.3; T427.30-T430.34; T1099.2-T1106.8.
In cross‑examination of medical witnesses called by the applicants, the MAC used the two reports to challenge their opinions. Dr Patrick (Dr Patrick) a general surgeon, and Dr Sekel (Dr Sekel) an Occupational Physician, were both taken to Dr Qidwai’s report and asked whether his findings and conclusions in 2009 impacted their assessment of Mr Raccanello’s physical condition after the MVA. Whether the pre‑existing injury in 2006 and the on‑going symptoms in 2009, as recorded by Dr Qidwai, changed their later assessment.[65]
[65] Dr Patrick : T1328.24-T1331.6; Dr Sekel : T1134.10-T1134.16; T1151.3-T1162.26.
During cross-examination of Dr Sekel, the MAC’s counsel put to him the history recorded in Dr Qidwai’s report regarding Mr Raccanello’s activity levels in 2009, including Dr Qidwai’s assessment of Mr Raccanello’s cervical spine injury, using AMA5. Dr Sekel was asked to consider what Dr Qidwai’s assessment meant in relation to Mr Raccanello’s later presentation to him.[66]
[66] T1153.24-T1157.38.
In relation to the psychiatric evidence, Dr Ali’s report was put to both Dr David Kutlaca (Dr Kutlaca) and Dr Jeremy O’Dea (Dr O’Dea), expert forensic psychiatrists called by the applicants, during their cross-examination.[67] Both doctors were taken to Dr Ali’s diagnosis and conclusions based upon his assessment of Mr Raccanello in 2009. They were asked whether, if the report had been before them when preparing their own medico-legal reports, it would have been relevant to their assessment.
[67] Dr O’Dea: T1564.36-T1565.12; Dr Kutlaca: T1500.18-T1507.20.
The applicants argue that, as Lander J had found in the case of Hillier, both Dr Ali and Dr Qidwai should have been called to give evidence regarding the history obtained from Mr Raccanello and their findings. They argue that it is not in the interests of justice to permit the tender of the medical reports to prove the truth of the matters contained therein, and to confirm the medical diagnosis of each doctor.
The applicants submit that the use of the medical reports as expert evidence, to argue that Mr Raccanello suffered pre‑MVA medical conditions, should not be allowed. They rely upon a long established line of authority setting out the dangers of attempting to resolve disputes in medico-legal matters where there is conflicting medical evidence, and the experts are not called to give evidence. In Manly Municipal Council v Skene, Heydon JA (as he then was) stated:[68]
This case is typical of those in which parties to personal injury proceedings in the District Court in which significant sums may be at stake and which raise potentially complex issues turning on a contest of well-qualified experts decline to offer the court whatever assistance might be obtained by cross-examination of those experts. The respondent had two medical experts to support his case on the issue which is crucial to the appeal. The appellant had three medical experts to support it. On key aspects they collided. Yet no attempt was made to confront the experts with the collision, to seek explanations for the collision, or to test the colliding opinions …. Had they been cross-examined, they might have had an explanation. And if, on cross-examination, they admitted they had no explanation, the competing body of medical opinion would have been strengthened. In this appeal there were also debates about what particular doctors meant and about what they had or had not assumed which could have been cleared up in cross-examination.
To the extent that civil litigation – a lawsuit – attempts to arrive at a just resolution of the dispute by a rational approach to the underlying facts, it tends towards the irrational that the law suit should be decided on imperfect materials which could have been improved ….
… But there are important cases – the verdict in dispute in this case, for example, is a large sum to the respondent and a large sum to the appellant – which can only be justly resolved by a concentration on the vital point and a through elucidation and testing of it in oral evidence. There are some disputes the resolution of which is much assisted by a barrister thrashing the matter out face-to-face with an expert witness. If that is not done, the trial, so far as any conflict of experts is concerned, become analogous to a game of chess or cards played by competitors not entirely familiar with the rules. Impersonal materials are moved around. Formulas are incanted. The judge is left to arrive at some conclusion without real assistance from experts…
(Emphasis added)
[68] [2002] NSWCA 385 at [20] – [22].
The MAC argues that the two medical reports were in the control of the applicants. The MAC were not aware that the reports existed until they sought discovery of documents relating to the 2008 WorkCover claim.[69] The WorkCover documents were then the subject of an argument regarding the principle in Harman v Home Department State Secretary; Home Office v Harman (Aller),[70] before they were released at the end of the first week of trial.
[69] WorkCover then required a subpoena before any documents were produced.
[70] [1983] 1 AC 280.
The MAC accepts that in the normal course, the principles set out by Lander J in Hiller would require a medical witness to be called to tender their report and be tested by cross‑examination regarding their opinions. However, the facts of this case are different. The MAC are not trying to rely on their own reports as a tactical ploy to prove their case without calling the two doctors, but rather had been seeking for some time to obtain production of discoverable documents from the applicants. Those documents were not produced until after the trial had commenced. The medical reports were clearly relevant and should have been discovered by the applicants well before trial.
The MAC submits that an important factor to be taken into account is that the medical reports had been obtained by Mr Raccanello’s own workers compensation solicitors. In the circumstances, to exclude the two reports upon the basis that their authors have not been called to give evidence would be to allow the applicants to benefit from their frustration of the discovery process. This would be an incorrect application of the principles set out in Hillier. The best evidence for the court regarding Mr Raccanello’s physical and psychological conditions before the MVA, at least in 2009, comes from the medical reports. This is despite the limitation that the opinions in those reports have not been tested by cross‑examination in these proceedings. It is argued that there is no prejudice, as the applicants’ expert medical witnesses were given the opportunity to comment upon the reports, during their cross‑examination.
While the MAC’s argument evokes some sympathy, and it is acknowledged that s 53 of the Evidence Act provides a mechanism for simplifying the tender of documents, as Lander J stated in Hillier, safeguards are still provided to protect parties against injustice. One of those safeguards is that if the authors of documents can, and should be, called by the party seeking to tender the document, and they do not give evidence, then pursuant to s 53(1) of the Evidence Act, the document must not be admitted in evidence.[71]
[71] Found in s 53(2) (and formerly s 45A(2)) of the Evidence Act.
The late production of the medical reports cannot be disputed, but at no point during the trial was an application made by the MAC for an adjournment to enable the two doctors to give evidence. The possibility of such an application being made was never raised. No advice was provided as to whether the doctors were available to give evidence, or whether attempts had been made to contact them to enquire as to their availability. The trial of this action ran over 24 days between 24 March and 24 June 2022. Due to issues managing the COVID‑19 pandemic and its impact on witnesses and counsel, most expert witnesses gave evidence via audio visual link (AVL). That manner of giving evidence would have been offered to Dr Ali and Dr Qidwai. Mr Raccanello was recalled later in the trial for further cross‑examination regarding the WorkCover records and the medical reports. There was time in the trial for the two medical witnesses to give evidence. I was not told whether any efforts were made for them to do so.
The extent of Mr Raccanello’s pre-accident physical and psychological impairments are key issues to be determined in this matter. The reports prepared in 2009 by Dr Ali and Dr Qidwai could be important in considering those issues. However, adopting the authority in Hillier and the comments of Heydon JA in Manly Municipal Council v Skene,[72] I find that courts should not resolve conflicts between medical experts without those experts giving evidence and having their opinions tested. I find that it would be contrary to the interests of justice to allow admission of the reports of Dr Qidwai and Dr Ali as to the truth of the contents of their reports. The medical reports are to be admitted for the sole purpose of being noted as documents that were produced in the course of the 2008 WorkCover claim, and as documents that were considered by GIO and WorkCover as part of that claim.
b) Supplementary reports of Dr David Kutlaca
[72] [2002] NSWCA 385 at [20].
However, in determining the possibilities that some of the water entitlements may have been sold to fund Wormtech’s activities, if not for the MVA and the forced sale of those entitlements, it cannot be ignored that significant sums were borrowed in 2018 and 2020 as part of grants to fund new machinery for Wormtech. The MAC’s counsel did not explore with the Raccanellos whether they would have sold water entitlements to fund that financing. There were just general propositions put regarding the funding of Wormtech’s activities. The Raccanellos denied that the water entitlements would have been sold. There is no evidence upon which I can find that but for the MVA, a significant amount of the water entitlements would have been sold to fund the purchase of machinery in 2018 and 2020.
In assessing damages, I take account of the fact that since the MVA and the development of Wormtech, that other shareholders have been brought into the company and that the Raccanellos through Rayen now have a 75% shareholding. I find that in that scenario that the probability of the Raccanellos investing further personal income into Wormtech by the selling of water entitlements (if they had been retained) is diminished.
In considering all issues, I assess damages for the value of the water entitlements by determining that but for the MVA, the Raccanellos are likely to have sold some water from time to time to assist with the development of Wormtech as the need arose for discrete items, such as specialised equipment. I find however, that the evidence supports a probability that they would have retained ownership of the majority of their water rights. I reduce the damages claimed by 35% to take account of these considerations, and possibilities.
I award damages in relation to the lost commercial opportunity of the value of the water entitlements as assessed by Mr Holmes, less 35%. That is in the sum of $1,108,123.25.
I award damages as follows for the value of the loss occasioned to the Raccanellos by the sale of the water rights:
Value of the lost opportunity to lease out water to trial
$96,413.00
Interest on losses to trial
$14,638.00
Value of net opportunity loss to the Raccanellos by the 300mgl of water entitlements being sold in 2015; against the value of the entitlements at trial
$1,108,123.25
$1,219,174.25
These losses are claimed by each of Mr and Mrs Raccanello in the Statement of Claim ‑ Revision 4.[955] There is no reason that they should not be divided equally between them at $609,587.12.
(ii) Rayen Estates – per quod claim
[955] FDN120.
Rayen’s past losses are based upon loss of profit by:
(a)reduced cartage income
(b)loss of apricot trees
A claim for loss of grape income was not pursued.
GIO paid WorkCover payments to Rayen to reimburse them for wages owing to Mr Raccanello of $35,227.18. These have been repaid by the MAC to GIO, at 100% and must be taken into account in determining damages.
(a) Cartage income
I have already outlined the losses in cartage income after the MVA, and until the cartage work ceased in 2020. The extent of those losses as calculated by Mr Holmes are not said to be wrong by the MAC.
No replacement driver was hired after the MVA. There was of course, for a period, no second truck to drive. However, I find on the evidence that Mr Raccanello was very much the driving force behind the cartage business. He negotiated with local customers and entered into contracts for cartage. Neither Mrs Raccanello nor any employed driver did this.
The MAC submit that Mr Raccanello worked largely uninterrupted between December 2014 and October 2019, when, for causally unrelated reasons he entered drug rehabilitation. As I have set out in these reasons, I do not find that Mr Raccanello’s need for rehabilitation was unrelated to the MVA.
I find that whilst it may be the case that Mr Raccanello was attending at work, the nature and extent of what activities he was performing must be considered. The only assessment of the extent of cartage losses comes from Mr Ivy and Mr Holmes. Whilst Mr Holmes in evidence, accepted that he had assumed Mr Raccanello had not worked at all between 2014 and 2019, there was no contrary analysis of the cartage losses.
Mr Raccanello confirmed that he returned to driving trucks in September 2014 but not at the rate he had done before the MVA. No one replaced the work he had been doing.[956] Mrs Raccanello’s evidence was that after the MVA Mr Raccanello did not cope well with stress, or generally.[957] Mr Raccanello himself did not acknowledge that, but I accept Mrs Raccanello as a reliable witness in that regard. Her assessment also accorded with Dr Kutlaca’s regarding Mr Raccanello’s difficulties and his coping style. The evidence is that Mr Raccanello may have returned to driving after the MVA, but not at the same level. For reasons I have already set out, I accept Mr Holmes’ assessment of the losses from the cartage business after the MVA.
[956] T141.18-23.
[957] T712.10-34.
I find that the loss of profits from the cartage business were caused by Mr Raccanello’s inability to return to negotiating contracts for, and performing cartage. This was not simply as a servant of Rayen, but as the key person in that business. Mr Dunn confirmed that he never negotiated any contracts and simply drove trucks. The evidence of Mrs Raccanello and other lay witnesses is that at all times it was Mr Raccanello who found new cartage work and contracts and performed some of that work. Examples before the court include Mr Raccanello carting worms for Australian Vermiculture just prior to the MVA.[958]
[958] T450.14-17.
As noted above Mr Holmes assessed Rayen’s lost profit from cartage to be $222,000.00.[959] The calculation of that profit is not in dispute. I reduce this by 40% for the contingency that if not for the MVA, Mr Raccanello may have spent increased time concentrating his efforts on the development of Wormtech, particularly after 2018, and this may have led to a reduction in his cartage work, and thereby a reduction in the profit from cartage as other drivers were used. This reduces damages to $133,200.00.
(b) Apricots
[959] A91.
As set out above, Mr Raccanello in an attempt to find a new source of income for Rayen, planted up to 7,000 apricot trees at Yenda between 2010 and the date of the MVA. A facility was set up on the home block to dry and halve apricots for sale. A contract was in place for the purchase of dried apricots, and further markets were being explored. I find that the development of the orchard, and methods for drying and selling apricots was part of Mr Raccanello finding other sources of income for Rayen. It was also very clearly a project for Rayen developed and conducted by Mr Raccanello.
As a result of a heavy rain event whilst Mr Raccanello was at Hills in June 2016, five acres of the apricot trees were eventually lost. The apricot venture was ultimately abandoned, as not being profitable. Mr Raccanello was the only person who understood the drainage system for the trees, and it was the absence of his special knowledge and expertise that led to the trees being lost.
In his expert report and in giving evidence, Mr Ivy assessed the loss of profit in 2017 in the apricot venture as being $15,000, after all expenses. This loss was caused by the loss of the trees due to ‘foot rot’. There was no contrary evidence and I accept it.
I find that sum of $15,000.00 is a further per quod loss to Rayen directly caused by Mr Raccanello’s injuries, sustained in the MVA. I assess Rayen’s total damages in per quod at $148,200.00.
(iii) Wormtech – per quod claim
As I have already found, Mr Raccanello was a servant of Wormtech from its incorporation in 2010. This was as a Director and shareholder and the key person behind the development of the worm farms at Yenda, and then Carrathool. I have set out the work performed by Mr Raccanello in setting up both operations. Mrs Raccanello as a co‑director assisted in operating the business, but was not involved in the building of worm farms from scratch, using innovation to ensure they were sufficiently watered; nor the process for the collection of casings for sale and use as fertiliser. Whilst he was assisted at times by other farm workers, the evidence is clear that Mr Raccanello was the person who provided not only most of the labour, but also the innovation to ensure growth and efficiencies in work processes. He was the key man, and Mrs Raccanello accepts that the worm business would not have been developed without Mr Raccanello’s innovation. This all occurred well before the MVA.
The development of Carrathool after the MVA in 2014 was solely Mr Raccanello’s idea, and he was the principal worker on site as it was developed. It was his ‘baby’.
I have set out the history of the development of the Carrathool site and Mr Raccanello’s role in that after the MVA. After the site had dried out in late 2016, it is not in dispute that Mr Raccanello worked long hours at Carrathool until his break down in October 2019. A breakdown I have found was caused by the MVA. Mr Raccanello did not return to work for six months. During that period Mr Fincato was employed to work at, and manage the site, in place of Mr Raccanello. Although Mr Raccanello had worked long hours before his breakdown, Mr Dal Broi’s evidence was that in his absence, it was determined that he was not managing the site as well as had been thought.
The development and change of management structure at Wormtech from 2019 to trial has been outlined. Wormtech has undergone significant expansion and developed in the way intended by Mr Raccanello when planning entry into the composting business. There are now at least 10 contract workers on site at Carrathool at any time. This is in addition to Mr Fincato who continues as Operations Manager and Mr Pike as the operator of the compost turner.
Mr Raccanello is currently paid a salary of $175,000 inclusive of on‑costs for his work for Wormtech. Both Mrs Raccanello and Mr Dal Broi regard this as over‑payment for the work duties he is performing.
Mrs Raccanello’s evidence is that the workers at Carrathool rely upon Mr Raccanello’s background knowledge and expertise to perform their roles, he having set up the work practices. However, both physically and psychologically Mr Raccanello does not have the same capacity as before his breakdown in 2019. In this regard I confirm my findings on the medical evidence, and rely upon the opinions of Dr Sekel and Dr Shahzad that Mr Raccanello now has significantly reduced physical capacity, which will deteriorate further as he approaches 55‑60 years of age. As a result, he should avoid heavy manual work, including lifting, pushing and pulling. It has been found that he is suffering neuropathic neck pain with pins and needles in his arms and hands. I have found that there is no evidence that Mr Raccanello’s physical work capacity would have been significantly reduced for many years, if at all, if it was not for the MVA.
Mr Raccanello’s work capacity, stamina and judgment has also been impacted by the development of his psychiatric disorders including his SUD. This has led to him seeking to avoid stressful situations in his management role at Wormtech. Dr Kutlaca opined that there was a risk of relapse if Mr Raccanello was placed under stress.
Wormtech claims damages to compensate the company for the financial cost of employing staff to replace the roles that Mr Raccanello is no longer performing, and has not performed since his breakdown in late 2019. These are:
·Site Manager now performed by Alan Fincato at: $135,000.00pa
·Composter Turner now performed by Ryan Pike at: $60,000.00pa
·Director – 25% of role performed by Mr Dal Broi: $43,875.00pa
The salaries claimed include on‑costs, including Workcover premiums.
Upon my finding that Mr Raccanello has suffered a reduction in work capacity as a result of the MVA, I find that Wormtech has lost his servitude as he has not been able to perform the physical and management roles that he was performing before 2019. He has not continued to be able to develop the Carrathool site.
I find that Wormtech has incurred, and will continue to incur, the cost of substitute labour as a result of Mr Raccanello’s ongoing restrictions on his work capacity, and while he continues to be employed. However, I cannot find that as Wormtech expanded and grew that Mr Raccanello would have had the capacity to perform all components of the three roles for which a loss is claimed.
I find upon all the evidence, including the descriptions of Mrs Raccanello and Mr Dal Broi of Mr Raccanello’s contribution to Wormtech, that Mr Raccanello would have continued as site manager at Carrathool if the injuries suffered in the MVA had not prevented him from doing so after his breakdown in 2019. This includes his psychiatric disorders. However, I find that Wormtech would have required the expertise of Mr Dal Broi, including his management experience, in any event to grow the business; and that the role of compost turner would have ultimately been carried out by another employee. The extent of Wormtech’s activities and growth meant Mr Raccanello could not have performed all roles.
In relation to past losses, I find on the balance that Wormtech employed Mr Pike, and required services to be provided by Mr Dal Broi earlier than the company would have required if Mr Raccanello had not been injured and suffered his breakdown in 2019. The cost of that labour between 1 June 2019 and 30 November 2021 was assessed by Mr Holmes in his reports at $274,300.00.[960] I make no allowance for the salary of Mr Jackson for June 2019, as at that time Mr Raccanello’s role at Yenda was very limited as he concentrated his time at Carrathool.
[960] In A93 and A94.
I accept the method for the calculation of the claim for the past losses of Wormtech, but reduce those by 50% upon the basis that given Wormtech’s rapid growth, even if Mr Raccanello was working during this period, additional management assistance would have been required. This is particularly so as allowance has been made for Mr Raccanello to also continue cartage work as per Rayen’s claim. I also take into account that Mr Raccanello did not leave Carrathool and attend Sivana until 2 October 2019. Damages are assessed at $137,150.00.
(iv) Mr Raccanello
The applicants accept that if an award of damages was made to Rayen and Wormtech for damages in per quod, for past losses, then there should be no award of damages to Mr Raccanello personally. I agree. I find on all the evidence that Mr Raccanello would have remained fully engaged in his farming businesses operated by Rayen and Wormtech and not sought alternative employment even if not injured in the MVA.
(4) Future economic loss
(i) Wormtech – per quod claim
In assessing future Wormtech losses in per quod I find that it is only the salary of Mr Fincato that replaces work that Mr Raccanello would have continued to perform as at the current time, if not for the MVA. I find on the evidence that whilst Mr Raccanello is being paid a salary, he is performing an advisory role and working far less hours than before his breakdown in 2019.
I assess Wormtech’s future losses on the basis of Mr Fincato’s current salary of $135,000.00 per annum as per the evidence of Mrs Raccanello.[961] This is an expense incurred by Wormtech as a result of Mr Raccanello no longer having capacity to perform the role of site manager at Carrathool, despite being paid a salary of $175,000.00 per annum. The fact that Wormtech continues to pay that salary, does not form any part of the loss in per quod. It is the replacement labour required for services that Mr Raccanello no longer performs that is compensable.
[961] T887.25-33.
Wormtech claims the future losses over a period of 10 years upon the basis that as a result of his injuries, that will be the extent of Mr Raccanello’s future work life. Thereafter his salary will not be paid. This calculation in relation to Mr Fincato’s current salary is contained in Mr Holmes second report.[962] Using a multiplier for 10 years of 412.9 I calculate this to be $1,071,950.00 (based upon $2,596.15 per week). Contingencies must be applied to this sum, as given Mr Raccanello’s pre‑MVA injuries, particularly his C5/6 fusion and knee injury, he may have reduced his work hours within the next 10 years in any event or stopped working. Taking all matters into account, I apply contingencies of 50%. This reduces damages to $535.975.00.
[962] A93.
In applying contingencies, I take into account the contingency that Mr Raccanello may stop work due to the injuries sustained in the MVA, and as a result his salary will not be paid by Wormtech. The evidence of Mrs Raccanello is that once the operational manuals are completed, she expects that Mr Raccanello will take a step back. However, what that will mean for his salary was not identified, or clarified. There is also the concern regarding Mr Raccanello’s mental health if he is pushed to work too long.
(ii) Mr Raccanello
I have found on the medical evidence that Mr Raccanello’s capacity for work has been, and continues to be, impaired as a result of his injuries sustained in the MVA. I have also set out my findings in relation to Mr Raccanello’s current work duties and capacity. Evidence regarding Mr Raccanello’s reduced capacity is confirmed by those who work with him and Mrs Raccanello. The evidence is that since his return from Sivana in early 2020 Mr Raccanello has significantly reduced his workload, especially at Carrathool.
Mr Dal Broi, a person I found to be an impressive and very knowledgeable witness, gave evidence that when Mr Raccanello pushes himself to work longer hours, particularly on machinery he will need extra time the following day to recover.[963] He confirmed that Mr Raccanello now does little at Carrathool rather than liaise with other staff.[964] Most of his time is now spent at Yenda. Mr Dal Broi also gave evidence that Mr Raccanello withdraws himself from stressful business situations.[965] This was all confirmed by Mrs Raccanello in her evidence.
[963] A42 at [49].
[964] T1059.14-20.
[965] T1063.28-30.
Mr Raccanello is currently being paid a salary by Wormtech, which is regarded to be market rate. Mrs Raccanello gave evidence that Mr Raccanello was in fact being overpaid. She and Mr Dal Broi opined that his usefulness to Wormtech was waning as most of his knowledge of operations was passed on to others.[966]
[966] T588.11-19 and T1068.32 – T1069.17.
The medical evidence is that Mr Raccanello’s work capacity will decline. As I have set out, Dr Patrick’s opinion was that he will ‘taper off’ at 60 years of age.[967] Dr Sekel found Mr Raccanello’s cervical spine would gradually deteriorate and suffer a permanent reduction in his physical work capacity of 20 hours per week.[968] Dr Shahzad gave evidence as to the ongoing, significant restrictions on Mr Raccanello’s physical capacity for work.[969]
[967] At para [675] above.
[968] At para [683]-[685] above.
[969] At para [707]-[708] above.
Dr Kutlaca and Dr O’Dea also set out the challenges for Mr Raccanello in relation to his relapsing psychiatric disorders, and the impact thereof. I will not repeat my discussion in that regard.
The applicants assert a claim for Mr Raccanello’s future economic loss of between $1,099,485.00 and $1,685,438.00, based upon calculations of Mr Holmes in his second report.[970] No contingencies were applied to that sum. The calculation is based upon a difference between Mr Raccanello’s current salary of $130,000.00 and ‘but for’ earnings of between $216,000.00 and $260,000.00
[970] A93 at Appendix G.
While I have found that Mr Raccanello’s capacity for work has been reduced as a result of his C6/7 and psychiatric injuries, there is no evidence before the court that if not for those injuries he would now be earning a salary between $216,000.00 and $260,000.00 per annum. Mr Holmes’ assessment is based upon an assumption put to him by the applicants’ lawyers. Mr Holmes in evidence agreed that he was not a salary expert and that he simply provided a mathematical calculation as requested.
The MAC submit that Mr Raccanello is receiving a salary that is commensurate with his work duties and his output, and that this was agreed by Mr Raccanello. Mr Dal Broi and Mrs Raccanello indicated that he is currently overpaid. As a result the MAC argue that the impact of Mr Raccanello’s injuries are not productive of financial loss.[971] I agree that on the evidence, that at the current time this is the case. There is simply no evidence that if it was not for the injuries sustained in the MVA Mr Raccanello would have been earning a salary in excess of $200,000.00 per annum. Mrs Raccanello is not being paid such a salary and neither is Mr Dal Broi.
[971] Husher v Husher (1999) 197 CLR 138 at [6]-[7].
In determining a loss of earning capacity the court is to look beyond what work an injured person is doing, and consider what would have been earned if there had been no injury. This involves assessing how long the injured person would have continued working, and what he would have been paid for this work. As set out by the High Court in Amaca Pty Ltd v Latz[972] the process of assessing future damages involves estimation assumptions and judgments.
[972] (2018) 264 CLR 505 at [94].
The 2013 amendments to the CLA has added an additional layer to the common law in relation to the assessment of damages for future economic loss. At s 56A(4) it is set out that a court must not take into account possibilities where it is unable to evaluate the chance of them occurring, or where the court evaluates there being less than a 20% chance of them occurring.
In taking account of all of the evidence, I find that the likelihood of Mr Raccanello ever leaving the family businesses to work elsewhere is negligible. His evidence, and that of Mrs Raccanello confirms their commitment to the Griffith area and their family home and businesses. In this regard, Wormtech is now a successful composting and fertiliser business with a multi‑million dollar turnover. In assessing Mr Raccanello’s future economic loss, it can only be upon the basis of Mr Raccanello’s continuing employment within Wormtech.
I find upon the medical evidence, supported by the evidence of Mrs Raccanello and Mr Dal Broi that Mr Raccanello is currently working at his full capacity. The medical evidence confirms this, and leads to an inference that Mr Raccanello’s physical capacity will deteriorate. However, there is no evidence before me upon which I can find by an inference of greater than 20% that this will lead to him not being paid a salary in line with the other directors, being Mrs Raccanello and Mr Dal Broi. There is no evidence, expert or otherwise, that but for his injuries he would have been paid a greater salary of between $216,000.00 and $260,000.00. I assess future economic loss based upon Mr Raccanello’s current salary.
The issue then becomes, how long Mr Raccanello will continue working. I have already set out the medical evidence in relation to Mr Raccanello’s future and made my findings. Mr Raccanello was 44 years of age at trial. He submits that but for the accident he would have worked to at least 70 years, as did his father. There is therefore a loss claimed of 16 years from 54 years to 70 years.
In assessing Mr Raccanello’s loss, I find that he would have likely worked to 70 years of age or longer if not injured. It was very clear from his evidence that the farming businesses and the development of Wormtech was Mr Raccanello’s life. He gave detailed and lengthy evidence of his life in Griffith and his work activities at Carrathool and Yenda. His passion for farming and his composting business was very evident. He did not impress as a person who sought down time. He wanted to maximise his business opportunities. If he was healthy, I find that Mr Raccanello would not have contemplated retirement, at least on a full‑time basis until 70 years of age, if not much later. I assess damages for future economic loss upon this basis.
In his second report, Mr Holmes assesses tax and the Medicare levy to determine a current net salary for Mr Raccanello of $94,233.00.[973] This equates to $1,812.17 net per week. I determine the potential loss by applying the 5% deferral multiplier for 10 years (.614) and then multiplying the result by the 5% weekly multiplier for 16 years (579.5)[974] this calculates to a potential future loss of $644,793.64 from when Mr Raccanello reaches 54 to age 70.
[973] A93 at Annexure G.
[974] Multiplier Ready Reckoner 2022, prepared by Cumpston Sarjeant, Actuaries.
I find that there is a greater than 20% chance that Mr Raccanello will not now continue to work to 70 years of age given my findings regarding his physical and psychiatric injuries. There is also a strong possibility that, based upon some of the medical evidence as supported by Mrs Raccanello, Mr Raccanello may not even be able to continue to work for the next 10 years. There is a risk of further psychological issues if put under stress as found by Dr Kutlaca. The normal vicissitudes of life, unrelated to the MVA must be taken into account. In relation to Mr Raccanello these are slightly higher as a result of his pre‑MVA C5/6 neck fusion and degeneration in his neck, his back injury and his knee injuries.
Mr Raccanello’s pre‑existing injuries must be balanced against the fact that he could continue to work even in a reduced capacity beyond 54 years of age. He may do so on a lesser salary, but still earn some income. Whilst the evidence is that he is no longer working at full capacity, Mr Raccanello’s evidence is that he is still working and engaged in Wormtech. He is passionate about the business and its potential.
The Raccanellos still own 75% of the shares in Wormtech. They have clearly worked as a team in developing the business. Mrs Raccanello relies upon her husband’s expertise and innovation in developing and continuing to assist in managing the composting processes. I find on the evidence that it is unlikely that Mr Raccanello’s employment would be terminated at 54 years of age if he is still providing some value to the business. I therefore take into account the contingency that Mr Raccanello may work beyond 54 years of age and to at least 60.
I assess damages for Mr Raccanello’s future economic loss at $385,000.00, applying contingences of just over 40%. These damages are to be reduced by 20% pursuant to s 56(5) of the CLA. Damages are $308,000.00.
(5) Mr Raccanello’s Future Loss of Superannuation Entitlements
The compulsory superannuation that would have been paid on future economic loss of $308,000,00, which commence in 14 years, is 12%. This calculates at $36,960.00.
(6) Mrs Raccanello’s damages
(i) Loss of consortium
Mrs Raccanello seeks damages for the loss of, or impairment of consortium pursuant to s 62(5)(1) of the CLA. These are damages to compensate for the impact of MVA‑related injuries upon a spouse, and include the loss or impairment of society, comfort, companionship, and sexual relations, within a relationship. It has been confirmed by the High Court that damages are still to be awarded where consortium is impaired as opposed to completely lost.[975]
[975] Toohey v Hollier (1955) 92 CLR 618.
Mrs Raccanello’s claim is brought upon the basis that her relationship with Mr Raccanello after the MVA was seriously impacted by both his physical and psychiatric injuries. I have already set out in detail Mr Raccanello’s injuries and his behaviours after the MVA. I have made findings in that regard. Mrs Raccanello gave very compelling evidence that between the MVA and when Mr Raccanello attended Sivana he presented as a very different person, and that their relationship was damaged as he became verbally and emotionally abusive. I accept that evidence, which was confirmed by other lay witnesses. I find that Mr Raccanello gradually withdrew from Mrs Raccanello after the MVA. I find that this was caused by his injuries, and significantly by the circumstances of the MVA and his psychological response.
The MAC submit that the cause of any loss of consortium was not the MVA. They argue that as a result of Mr Raccanello’s pre‑MVA infidelities the Raccanello’s marriage was in crisis before the MVA. I do not accept that submission. A marriage is more than just sexual relations, and as I have set out Mrs Raccanello described her husband as being a good husband, provider and father. This was again confirmed by all those who gave evidence. In fact, there is no evidence to the contrary.
The focus of the claim in consortium is the material consequences of Mr Raccanello’s injuries upon the relationship, rather than emotional consequences for Mrs Raccanello, such as grief.[976] However the loss of everyday actions, which are the product of a happy, loving marriage and which provide comfort and companionship are compensable.[977] I base my assessment of damages upon the following:
[976] Andrewartha v Andrewartha [No 1] (1987) 44 SASR 1.
[977] Markellos v Wakefield (1974) 7 SASR 436.
·prior to the MVA, despite some drug use and occasional use of prostitutes, and other infidelities, the Raccanello’s marriage was strong, supportive and generally happy. They had a strong relationship both in a business sense and personally. There were strong relationships with all extended family;
·immediately after the MVA there was a change in Mr Raccanello’s demeanour as he struggled to come to terms with the consequences of the MVA, and particularly the death of the third party driver;
·Mr Raccanello’s physical and psychological functioning declined, with a period of convalescence after his surgery on 26 August 2014. He isolated himself and increased his alcohol use. He did not want to socialise, or if he did he became intoxicated.[978] Mr Raccanello did not return to work until November 2014, and then on light duties;
[978] T520.31 – T521.2.
·Mr Raccanello’s behaviour deteriorated before his admission to Hills in 2016. He used alcohol and drugs to cope as he developed a MDD and PTSD, and became more psychotic. Mrs Raccanello contacted police to have his guns removed;
·between late 2016 and Mr Raccanello’s admission to Sivana in 2019 his behaviour became more erratic as he succumbed to his drug addictions and an affair with his drug dealer. Mr Raccanello began spending many nights away from home, and avoiding his family. This included his wider family to whom he was previously close. Mrs Raccanello was left to manage the family home, the farm and the couple’s two children. Mrs Raccanello reached a stage where she and the children preferred when Mr Raccanello stayed away;
·Mr Raccanello told Dr O’Dea in 2021 that he had become paranoid and aggressive towards his family before his breakdown in 2019;
·Mr Raccanello’s behaviour was a result of his severe psychiatric disorders, which included a SUD, PTSD and MDD;
·Mrs Raccanello was the person who researched, and made arrangements for her husband to attend rehabilitation at Sivana and assisted him through that treatment;
·the Raccanellos remain married but are still working on regaining trust. Mrs Raccanello has continued to take on a greater role in making business decisions as she does not fully trust her husband in that regard;
·Mr Raccanello’s psychiatric disorders are considered to be relapsing, and Mrs Raccanello lives with ever present worry that Mr Raccanello may return to illicit drug use. If that was the case their marriage would likely fail;[979]
·at the date of trial, Mrs Raccanello remained supportive of Mr Raccanello and his ongoing rehabilitation. She has stepped up in a business sense, particularly with Wormtech, and does not pressure Mr Raccanello to do more. Their relationship at trial was mending;
·Mr Raccanello is a damaged person both physically and psychologically, and Mrs Raccanello provides ongoing care for him to ensure he is not unduly stressed;
·the Raccanellos as a result of Mr Raccanello’s mental health issues do not socialise as they used to. Mr Raccanello prefers to avoid situations involving excess alcohol;
·Mrs Raccanello lives with the concern that Mr Raccanello may relapse into excess alcohol and drug use.
[979] T923.8-13.
There is limited contemporary authority regarding the assessment of damages for consortium. In 1987 the Full Court awarded $25,000.00 for loss of consortium (not including services), to a husband whose wife had suffered catastrophic injuries in a MVA, leaving her a quadriplegic.[980] In 1999 Lander J awarded a wife, whose husband had suffered significant illness due to non‑diagnosed heart issues, damages of $15,000.00 for loss of consortium.[981] In 2001 Judge Smith in the District Court awarded $25,000.00 to a wife whose husband had suffered an injury (in 1993) to the frontal lobe of his brain that caused ongoing significant cognitive issues, including a personality change.[982] This assessment was based upon the plaintiff’s family life being shattered, and there no longer being a warm communicative relationship with his wife and two young children. His wife had to manage the plaintiff’s temper. There was a risk of the marriage ending.
[980] Andrewartha v Andrewartha [1987] SASC 9715.
[981] Mann v Flinders Medical Centre [1999] SASC 236.
[982] Slattery v Beare, Brambles Aust Ltd & Fletcher [2001] SADC 44.
The most recent significant decision in South Australia is Elliot v Andrew (Elliot).[983] This case concerned an injury claim by a young married man who was rendered a paraplegic at T10 as a result of a motor bike accident. Although he was not successful in his claim as to liability, Judge Clayton proceeded to assess damages. In doing so, it was noted that Mrs Elliot was to be compensated for the complete ‘cessation of the sexual relationship, the detriment to companionship’, and the ‘significant deterioration of what was once a loving relationship’.[984] It was regarded as important that the couple were young. Mrs Elliott was only 28 years old when the accident occurred, and she could never conceive a child naturally with her husband. She also would be more responsible for all child care. Damages were assessed at $100,000.00.
[983] [2009] SADC 31.
[984] Ibid at [364].
I agree with the applicants’ submission that the approach in Elliot is appropriate if earlier assessments are taken into account, and then adjusted for inflation to reflect normative expectations. The assessment does not include any damages for mental distress. In my view Mrs Elliot’s losses in consortium were much more significant than Mrs Raccanello’s given the permanency of her situation, her much younger age, and the severity of her husband’s injuries that saw him permanently in a wheelchair. In my view Mr Raccanello’s situation is closer to that as assessed by Judge Smith in Slattery v Beare Brambles Aust Ltd & Fletcher.[985] I adopt that approach, but find that there should be an increase in damages to take account of inflation since 2001.
[985] [2001] SADC 44.
Taking all matters into account, I assess damages for Mrs Raccanello’s loss of consortium at $50,000.
(ii) Pure economic loss by sale of water entitlements
On the basis of my findings regarding the sale of the water entitlements, Mrs Raccanello is entitled to damages equivalent to 50% of the sum assessed. This is $609,587.13.
(7) Summary of Damages
(1) Mr Raccanello (i) Non-economic loss $38,000.00 (ii) Past gratuitous care and assistance $Nil (iii) Past paid care and assistance $5,590.00 (iv) Future care and assistance $325,923.40 (v) Past medical expenses/special damages (incl travel) $137,445.54 (vi) Future medical expenses $106,250.00 (vii) Pecuniary losses
1. 50% share of losses re: water entitlements
$609,587.12 2. Future economic loss $308,000.00 3. future superannuation losses $36,960.00 SUB TOTAL $1,567,756.06 Less 25% $391,939.02 SUB TOTAL $1,175,816.98 Less amounts paid by the MAC as re-imbursement for medical expenses $48,931.00 TOTAL $1,126,885.98 (2) Mrs Raccanello (i) Loss of consortium $50,000.00 (ii) 50% share of loss re: water entitlements $609,587.12 SUB TOTAL $659,587.13 Less 25% $164,896.78 TOTAL $494,690.35 (3) Rayen Estates (i) Past losses – Per quod $148,200.00 Less 25% $37,050.00 SUB TOTAL $111,150.00 Less payments made by MAC to re-imburse wages $35,227.18 TOTAL $75,922.82 (4) Wormtech (i) Past losses – Per quod $137,150.00 (ii) Future losses – Per quod $535,975.00 SUB TOTAL $673,125.00 Less 25% $168,281.25 TOTAL $504,843.75 `
(8) Interest
I will hear the parties in relation to the appropriate calculation of interest on damages.
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