Ramsey v Denton

[2020] NSWDC 426

District Court

New South Wales

Medium Neutral Citation:

Ramsey v Denton [2020] NSWDC 426

Hearing dates:

1-2 April 2020; 13 May 2020 (Notice of Motion); 22‑25 June 2020

Date of orders:

6 August 2020

Decision date:

06 August 2020

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Judgment for the plaintiff.

(2) The parties are to bring in agreed short minutes of order within seven days reflecting the court's reasons for decision.

(3) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

(4) The parties have leave to make an application within 14 days to vary the order as to costs in (3) above.

(5) Liberty to apply to the Associate to Dicker SC DCJ to relist the matter on two business days’ notice.

(6) Exhibits are to be returned after 28 days.

Catchwords:

Torts – negligence – motor vehicle accident – claim for damages for personal injuries - extensive history of prior injuries – what injuries and disabilities were caused by the accident – liability not in dispute – proper approach to the award of damages for loss of past earnings and loss of future earning capacity

Legislation Cited:

Civil Liability Act 2002 (NSW)

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Curtis v Harden Shire Council [2014] NSWCA 314

Dal vChol [2018] NSWCA 219

GulicvAngelovski [2018] NSWCA 161

Kabic v AAI Limited trading as GIO [2019] NSWCA 247

Lloyd v Thornbury [2019] NSWCA 154

Malecv JC Hutton [1990] HCA 20; (1990) 169 CLR 638

Mason v Demasi [2009] NSWCA 227

Metro North Hospital and Health Service v Pierce [2018] NSWCA 11

Miller v Galderisi [2009] NSWCA 353

New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536

Purkessv Crittenden [1965] HCA 34; (1965) 114 CLR 164

SeltsamPty Ltd vGhaleb [2005] NSWCA 208

Smith v Alone [2017] NSWCA 287

Sretenovic v Reed [2009] NSWCA 280

Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Category:

Principal judgment

Parties:

Stephen Noel Ramsey (Plaintiff)
Patricia Sherry Denton (Defendant)

Representation:

Counsel:
G Bateman (Plaintiff)
W Fitzsimmons SC (Defendant)

Solicitors:
Robert Brydon Lawyers (Plaintiff)
McCabe Curwood (Defendant)

File Number(s):

2016/00219189

Judgment

1. These proceedings relate to the extent of the injuries and disabilities suffered by the plaintiff, Stephen Noel Ramsey, as a result of a motor vehicle accident which occurred on 30 July 2014. The plaintiff was riding a motor cycle at about 5pm along Chittaway Road at Ourimbah on the Central Coast in New South Wales when he struck a motor vehicle driven by the defendant which turned across the path of his motor cycle. The plaintiff saw the motor vehicle turn in front of him and placed his motor cycle down which slid into the side of the car.

2. The trial commenced as a virtual court hearing during the Covid-19 pandemic on 1 April 2020. It was adjourned due to technical difficulties with the virtual court. On 13 May 2020, the court heard and determined an application by the plaintiff to rely on the report of Dr G Smith, Consultant Psychiatrist. The final hearing resumed on 22 June 2020.

3. By a Statement of Claim filed on 20 July 2016, the plaintiff alleged personal injuries arising from the defendant’s negligence. An extensive list of injuries and ongoing disabilities was set out in the Statement of Claim and in a number of versions of Statements of Particulars which have been filed. The most recent Statement of Particulars was filed on 20 February 2020 and again it provides a very significant list of injuries and ongoing disabilities alleged by the plaintiff.

4. A Defence was filed on 6 September 2016. In that Defence the defendant admitted she was negligent but not as alleged in the Statement of Claim. The particulars of injury in the Statement of Claim were not admitted.

5. In due course, a consent judgment was filed with the court on 10 November 2016. On 11 November 2016, the Judicial Registrar by consent entered judgment for the plaintiff and noted that the plaintiff’s assessed damages were to be reduced by 20% for contributory negligence.

6. The issue before the court is to determine the extent of the injuries and disabilities suffered by the plaintiff as a result of the accident. The plaintiff has a very lengthy history of prior injuries. A number of these injuries were referred to in the plaintiff’s chronology which was handed up at the commencement of the proceedings. Accordingly, a significant issue in the case is whether, and to what degree, the plaintiff’s current asserted problems may be traced to his previous injuries or the motor vehicle accident which occurred on 30 July 2014.

7. There is no claim for non-economic loss in the proceedings.

8. The plaintiff was born in April 1966 which made him nearly 54 at the commencement of the final hearing. He is an electrician by occupation.

Evidence for the plaintiff

The plaintiff’s oral evidence

9. The plaintiff gave evidence in chief that he was born in April 1966. He agreed that he had been provided a chronology which he said was true and correct. The chronology was not made an exhibit in the proceedings.

10. The plaintiff indicated that after his apprenticeship he became a qualified electrical mechanic and supervisor at Shell Oil Company in 1985. He then moved to Wormald Security undertaking the installation of security systems and cameras. In 1989 and thereafter he was involved in electrical contract work including the installation of heavy commercial electrical installations including safety switches.

11. The plaintiff gave evidence of a number of injuries which he had prior to the accident on 30 July 2014. The plaintiff stated on a number of occasions that he had a poor memory and could not recall the detail of some things. He could not recall an injury to his right scapula in June 1990: T13.7. After some questions, the plaintiff recalled tearing a back muscle in lifting some concrete bins. He said he was off work for about six weeks.

12. In 1991 the plaintiff confirmed that he was working for Baxter Healthcare undertaking projects for the Facilities Manager relating to industrial electrical maintenance. He could not recall an accident in 1992 in which he had a whiplash injury: T13.41.

13. The plaintiff agreed that in 1993 he became a self-employed electrical contractor undertaking domestic electrical and commercial electrical work.

14. In June 1994 the plaintiff agreed that he injured his right ankle and was off work for about a week. The plaintiff was asked about a skiing injury in September 1994. He said it probably occurred but he could not remember it and stated that he had problems with his memory: T14.17.

15. The plaintiff was asked about a fall in December 1994 in which he injured his back. He said “I could have” without appearing to have any recollection of the accident: T14.47.

16. The plaintiff confirmed that in 1996 he was in a motor vehicle accident. The plaintiff believed he was hit by an Australia Post truck and suffered whiplash but said that he recovered. The plaintiff could not recall a finger injury to his right hand in 1998. However, he recalled working in a bricklaying business with numerous bricklayers and doing his own electrical work on the side in 1998. The plaintiff was asked about a motor vehicle accident in 1998 where he was hit from behind. He did not appear to have a recollection of it: T15.40 cf T15.1.

17. The plaintiff confirmed that he undertook work on Olympic sites for the 2000 Olympics which included heavy industrial cables connection to switchboards.

18. The plaintiff agreed that in February 2001 he was involved in a speedboat accident. He said he was hit by a boat in Lake Macquarie and injured his head, neck and lower back on the left-hand side: T16.17. The plaintiff said that he was a top water skier at this time.

19. The plaintiff agreed that in 2001-2002 he was employed by Siemens PPA undertaking heavy industrial electrical work at a power station.

20. The plaintiff said that he was charged with drink-driving offences which resulted in a prison sentence. He said he was injured in both his elbows in August 2002 in an altercation in prison.

21. Between 2002 and 2005 the plaintiff said that he undertook electrical contracting work before obtaining a job working on the Cross-City Tunnel in relation to aerial work and broadcasting systems. He said he was paid over $5,500 per week gross for this work.

22. The plaintiff was asked about a September 2005 injury to his lower back. He stated that he injured his back while shovelling.

23. The plaintiff agreed that he was employed at the Lane Cove Tunnel project in 2006 in relation to electrical lighting and said he was paid between $4,000 to $5,000 per week gross.

24. The plaintiff agreed that in 2006 at the Lane Cove Tunnel he had suffered from gas poisoning when the fans were turned off whilst work was being undertaken by him in the tunnel. He said one of his fellow workers collapsed and they were taken to hospital and kept overnight because of high CO² levels. He said this caused him stress and anxiety and he refused to go back as he regarded the work as dangerous. He agreed that he believed Dr Peterson gave a certificate that he had a psychological injury and said he had no trust of his employer: T19.2.

25. The plaintiff gave evidence that he had a motorcycle accident in 2008 where he had hit a pothole and was injured on the way to work. However, he said he went back to work.

26. He said he injured his right shoulder, neck and ribs and had two weeks off work as a result of the accident: T18.8.

27. The plaintiff gave evidence of a workplace injury at the Wambo mine in 2009. He said he was a passenger in a vehicle underground and he was thrown into the roof. He said he was injured quite badly and when he struck the roof with his head he injured his neck and he landed heavily on a steel arm injuring his right arm and shoulder and his back: T20.4. He said he was off work because of this injury for “probably” five to six months: T20.18.

28. The plaintiff gave evidence of incorporating a company, SME Electrical Pty Ltd in 2010. He said he was a director with his former commercial partner. He gave evidence that he was involved in the building of switch yards and sub-stations and that the company employed electricians for this purpose. He stated that when the carbon tax was introduced in 2011 that this had a substantial effect on the work which forced the company to cease operations: T21.20; T22.1. From the end of 2011 to the beginning of 2012 he said he was only engaged in “bits and pieces” of work: T22.8.

29. The plaintiff was then shown a number of tax returns. These showed:

1. SME Electrical Pty Ltd reported income for the financial year ended 30 June 2011 of $189,977 gross. After expenses of $281,373, the profit for the business was said to be a negative $91,396;

2. The plaintiff's individual tax return for the financial year ending 30 June 2011 was tendered which showed a taxable income through work as an electrician of $113,536;

3. A Notice of Assessment for the financial year ending 30 June 2011 confirmed a taxable income of $113,536;

4. The plaintiff tendered a copy of his personal income tax return for the financial year ending 30 June 2012 which declared a taxable income of $95,330 as an electrician;

5. A Notice of Assessment for the year ending 30 June 2012 confirmed a taxable income of $95,330. The plaintiff said that he was not working past the first week in February 2012 which was when SME Electrical closed down: T24.8.

30. The plaintiff confirmed an injury in February 2012 where he injured his right arm and coccyx when he slipped and fell down a steep wet driveway at home. He said this was not the cause of him ceasing work: T24.30.

31. The plaintiff was then asked a number of questions about his physical and mental condition. He agreed that in 2019 he was referred to a Mr Comino, a counsellor. He said this was because he was not feeling the best and he was seriously considering taking his own life as he could not see a way forward: T24.50. He said that a number of hurdles were being put in front of him by the insurance company and he felt this caused him a lot of difficulties. He said he had been “virtually left on the side of the road for two and a half years”: T25.13. The plaintiff gave evidence that formerly he lived a fast life and was involved in a number of sports. He said that since the accident he could not be involved in sports and could not even be involved in fishing as he could not cast a rod over his head: T25.22.

32. The plaintiff also stated that he could not do electrical work as he could not pass a medical, he could not bear weight on his right foot and he could not put on work boots because his right foot would swell up: T25.31. In relation to his right shoulder injury, the plaintiff said that he could not undertake work above his head or manipulate large cables: T25.39. Prior to the accident on 30 July 2014, the plaintiff said that he was able to do the final terminating of electrical cables at substations with his partner: T26.1.

33. The plaintiff confirmed that since his accident he had kept in contact with a few people in the electrical industry and had been offered work as an electrician at the end of 2019: see the offers in Exhibit G and Exhibit H for work on the North Connex and West Connex projects.

34. The plaintiff also stated that after the work with SME Electrical ceased, he had purchased six motorcycles in the US, imported them to Australia and then undertook the work of having alterations to the motorcycles to comply with Australian standards. He said the amount of trouble involved in this led to him stopping importing the motorcycles: T29.21.

35. The plaintiff gave evidence about the impact of the accident on him. He said that at the time of the accident he lived in a house on a waterfront reserve with his former defacto partner and their children. He said he had a mortgage on the house but because of his inability to work he had to sell the house as he could not pay the mortgage. He said he would have retained the house if he could have afforded to pay his mortgage.

36. The plaintiff said that since the accident he had relied on some income from an insurance company, Centrelink benefits and, on one occasion, one and a half days work examining switchboards. He said this was the only work which he had undertaken in the six years since the accident: T33.5. He said that he had sold “virtually everything” he owned including cars, sporting equipment and his ex-partner's jewellery in order to fund their living expenses. He said he had “nothing left to sell”. He said that he remained on friendly terms with his ex-partner and lived part of the week with his eldest daughter and for another part of the week with his ex-partner in order to see his youngest daughter: T33.21.

37. A photograph of the plaintiff's right foot showing scarring became Exhibit J in the proceedings. A copy of the plaintiff's curriculum vitae became Exhibit K in the proceedings.

38. With leave, which was not opposed, the plaintiff gave further evidence in chief in relation to a job offer from a Mr Joe Sarkis of Greenacres Landscaping Pty Ltd as a site supervisor and electrician.

39. The plaintiff said that he had known Mr Sarkis since 1991-1992. Mr Sarkis owned a furniture factory and the plaintiff said that he did his electrical work. The plaintiff gave evidence that he ran into Mr Sarkis at a barbecue and card game on the June long weekend in 2014. At the barbecue, he had a discussion with Mr Sarkis in which Mr Sarkis asked him whether he was interested in a job for Mr Sarkis in a supervisory position. The plaintiff said that he knew Mr Sarkis was a landscaper. Mr Sarkis said that he was going in to have neck surgery and he wanted the plaintiff to take a permanent position in a supervisory capacity in his landscaping business as well as to do the electrician jobs required in the course of the landscaping work. The position included the provision of a car and for the plaintiff's telephone bill to be paid. The rate of pay discussed was $47 per hour with overtime rates: T101. The plaintiff stated that he saw this as “something different” and he wished to have a go at doing something different, as he was sick of being an electrician. The plaintiff said he met up with Mr Sarkis at a Blacktown site and he took him to inspect two other sites and to meet the workers at the sites. This was one or two days prior to the accident. The plaintiff said that he asked Mr Sarkis for a couple of days to sort out some matters which he had outstanding including relating to his university studies: T101.44. The arrangement was for him to start work for Mr Sarkis the following week.

40. The plaintiff said that he got in touch with Mr Sarkis the day after the accident and told him about the motorcycle accident. He said Mr Sarkis said to him to get back in touch with him when he was back on his feet. The plaintiff said that he had not spoken to Mr Sarkis about resuming the work as his electrical licence had expired and he believed the travel to Sydney for the work was too far and he had a problem with his back sitting down for any period: T102.23.

41. The plaintiff said that if there had not been the accident he would have commenced with Mr Sarkis but agreed that he did not know how long he would have stayed there and kept going to university: T102.31.

42. Although he inspected only three sites before the accident, he did not know whether Mr Sarkis had more sites with work. He said he only spoke to him about the jobs he had on at the time.

43. The plaintiff gave evidence that he was living with his ex-partner, Ms Russell, and his children at the time of the accident. He said their home was a large three bedroom house. He said he mowed the grass and helped where he could with domestic matters including cleaning. He said that he and Ms Russell shared the domestic tasks: T103.24.

44. The plaintiff said that he stayed with Ms Russell, who was now his ex-partner, on occasions and he helped as he could. He said he mowed the lawn but this took him a couple of days (as his foot was sore), he took the rubbish out and he always helped. The plaintiff said that since the accident he was no good with pegging the washing out because of his shoulder but he was able to clean up including vacuuming, mopping and cleaning the bathrooms: T104.29.

45. The plaintiff was then subject to a detailed and extensive cross-examination, particularly in relation to his previous accidents and injuries.

46. The plaintiff was asked about a 1990 injury. The plaintiff agreed that he injured the muscle in his back near his right shoulder in 1990 when working for Reno Constructions as a bricklayer’s labourer and submitted a workers compensation claim.

47. The plaintiff could not recall spraining his right ankle in June 1994: T35.35.

48. The plaintiff confirmed an injury to his coccyx whilst skiing in September 1994. He could not recall a fall at work in December 1994 when he injured his back and his left scapula: T36.20. The plaintiff confirmed a motor vehicle accident in June 1996 when he injured his right upper arm. He said that he had fallen asleep behind the wheel. The plaintiff could not recall an injury to his right hand in January 1998: T36.35.

49. The plaintiff confirmed injuries in a motor vehicle accident in April 1998 to his right shoulder, right hip, neck and back which had led to a claim and compensation. He said an Australia Post truck had reversed into his vehicle.

50. The plaintiff agreed that he was injured in February 2001 where he was hit by a boat while skiing. He said he made a compensation claim which he thought took about two years to determine. He said he was hit by a boat at speed and accepted he had injuries to the head, neck and lower back: T36.12.

30. The plaintiff confirmed being injured in gaol in August 2002 where he suffered injuries to both his elbows and he received compensation as a victim of crime.

31. The plaintiff could not recall injuring his back in September 2005: T37.48.

32. In relation to the motorcycle accident in July 2008, the plaintiff agreed that he aggravated his right shoulder injury as well as suffering an injury to his rib and bruising: T38.18.

33. The plaintiff was then asked a number of questions about his November 2009 injury and claim relating to the accident in the coal mine.

34. The plaintiff was asked whether he recovered from his injury and said that he recovered well enough to get back to his duties. However, he said that he never went back to mining work as it was heavy work and too hard on the body. He said that he could not pass the test to return to the work in any case. The work required him to carry about 25kg in extra weight through tools which he could not tolerate on his hips due to his back injury. He accepted that he was injured in his neck, right shoulder and back in the 2009 accident: T39.13. He claimed to have been “pensioned out” as a result of the accident (T39.40) and was not given a chance to see whether he could physically deal with the work. He agreed that at the time the weights he would have been required to wear gave rise to problems with his back and pain. He said he was “not sure” whether he ever recovered from his back injury: T40.46. He claimed not to have fully recovered from the neck injury (T40.50). He accepted that the injury in his right shoulder in 2009 involved a tear to it: T41.2. However, he said that he had no trouble in continuing to use his right shoulder whilst at SME Electrical: T41.12. He said he had massage therapy weekly and was seeing a chiropractor every two weeks after 2010 to treat his injuries. However, Mr Ramsay agreed that he had some “big holes” in his memory: T41.28.

35. The plaintiff was taken to the report of Dr Bodel, Orthopaedic Surgeon, dated 10 January 2020. The past medical history set out in the report of Dr Bodel states the following:

“This gentleman had been previously quite well. He does report a minor injury to the right shoulder many years ago in about the year 2009. He was told that there was a rotator cuff injury. He did not require a surgical repair and after a period of physiotherapy and rest from work he completely recovered. He took about 2 1/2 years to settle down and he then went to work doing light duty activities initially in a supervisory role for Greenacres Landscapes” (Exhibit A page 23).

57. In relation to the suggestion of a “minor” injury to the right shoulder, the plaintiff said that he told Dr Bodel that he suffered a rotator cuff tear of about 1cm. He said he could not recall saying to Dr Bodel that he had “completely recovered” from the injury.

58. He agreed that on occasions after the 2009 accident he had undertaken physical electrical work at SME Electrical as the work had to be done and on occasions there were no staff to cover it: T42.34. He accepted that his work at SME Electrical was mainly in a supervisory role as a director of the company. He agreed that on occasions he had to undertake general tradesman electrical work (T43.5) and by 2011 he did occasional physical work for SME Electrical.

59. The plaintiff accepted that he was referred by his general practitioner to a shoulder surgeon, Dr David Duckworth, in 2010. A report of Dr Duckworth dated 15 March 2010 referred to the plaintiff presenting with a recurrent problem affecting his right shoulder: “He now has ongoing problems affecting his shoulder and neck with pain radiating down his arm. The pain is often anterior and he finds his shoulder lacks strength and there is a constant ache”. The plaintiff said that he had a 1cm tear in his shoulder and was told it was not worth worrying about. He accepted that in March 2010 he “must have” told Dr Duckworth that he had ongoing problems with his right shoulder as a result of the 2008 motorcycle accident and the November 2009 injury. He agreed that he had probably told Dr Duckworth the matters relating to his continuing problems as set out in the 15 March 2010 report: Exhibit A page 314. He also accepted that he had “probably” seen Dr Kam about his neck and back: T44.13. The plaintiff accepted that Dr Duckworth referred the plaintiff to Professor Ghabrial who wanted to perform surgery which he refused. The plaintiff agreed that he told Professor Ghabrial he had an injury to his neck, back and right shoulder in a mining accident: Exhibit A page 319.

60. The report of Professor Ghabrial states: “I suggested to [sic] see Dr Don Osborne for his right shoulder problem as that has been deteriorating and may need surgery”: Exhibit A page 319.

61. The plaintiff said he could not recall Professor Ghabrial recommending he see Dr Osborne: T44.37.

62. The plaintiff was asked about his physical condition by early 2011. He said he was a director of SME Electrical then and was “running the show” and mainly working in the office but occasionally worked “on the tools”: T44.42.

63. The plaintiff agreed that at the end of 2010 he had made a claim against his superannuation fund for total and permanent disablement. He said that he was “instructed” to do that by his union: Exhibit A page 310; T45.12. He said that he understood that as he had not worked for six months by this time he was entitled to lodge the claim.

64. The plaintiff was then cross-examined in relation to matters appearing in notes of general practitioners at the Bonnells Bay surgery where his usual general practitioner, Dr Peterson, consulted. He agreed that Dr Peterson was his usual consultant in 2010-2011. The plaintiff did not appear to have a good memory in relation to the detail of the histories which he had provided to Dr Peterson in the 2010-2011 period. The plaintiff gave the following evidence in relation to various consultations:

1. Consultation on 30 March 2010 with Dr Peterson:

“MVA July 2008

… Hit a pothole…

[unreadable] right shoulder, right arm, right elbow, right hip and neck

…

On 24th November driver of transport vehicle drove very fast – hit ruts under a cross belt - Pt was thrown in the air = hit head on roof - landed on right elbow hard and landed also on a rebreather - was injured but felt obliged to continue working in the shift (extensive responsibilities).

Injury was reported…”: Exhibit A page 163.

The plaintiff confirmed that he had hit a pothole on his motorcycle in July 2008. He confirmed that he told Dr Peterson that he had a job with very difficult conditions in the coal mine for Mine Trades. He said he stopped working there because he did not want to work there. He agreed that he injured his right shoulder, arm, right elbow, right hip and neck in the motorcycle accident. The plaintiff also agreed that he had an accident at the Wambo coalmine in 2009 as a passenger and had been thrown into the air. The notes included the following:

“Disabilities no strength right shoulder with radiating pain from anterior rotator cuff up to trapezius - cannot sleep on right side due to pain.

Has been declared unfit for work by previous GP”;

2. Consultation with Dr Peterson on 7 May 2010: “three areas of pain - right trapezius pain worse with elevation to the shoulder (use of trapezius).” The plaintiff replied “could be” to the suggestion of three areas of pain with elevation being a problem: Exhibit A page 164; T50.33;

3. Consultation with Dr Peterson on 13 May 2010: there is a reference to a claim. The plaintiff said this was in relation to the 2009 accident. At this time the plaintiff said that he had sporadic back problems and sciatica but denied taking the drug Tramal, as he said that he did not “really take medication”;

4. Consultation with Dr Peterson on 24 June 2010:

“Has been unwell with sciatica pain S1

Has had a little bit of it in the past - initial back pain after the compressive injury November 2009. Reported back pain at the time but since then has had these two episodes of back pain with right S1 type sciatica;

MVA on the way to work July 2008 and compressive mine injury hitting…vertically 24th November 2009.

OE no sensory changes, no motor changes of S1…”

A CT scan was requested: Exhibit A pages 165-166. The plaintiff said that he had sciatica for a short period in 2010. He denied taking Tramal or using a Norspan patch;

5. Consultation with Dr Peterson on 26 July 2010: this refers to a prescription for Tramal. The plaintiff said that he may have taken a couple of tablets but stated he became too sick with them and often did not fill the prescription;

6. Consultation with Dr Browne on 13 September 2010:

“Pain - neck, back, leg

Using more cannabis to control pain

Tramadol not effective

Try oxycodone …

Reason for contact:

Back pain”: Exhibit A page 167.

The plaintiff denied taking Tramadol as it made him too sick. He said he was using more cannabis to control the pain at the time. He said he had tried oxycodone and it had also made him sick;

7. Consultation on 8 November 2010 with Dr Peterson:

“Either bilateral S1 or right sided L5 sciatica confirmed on MRI - judgment of level should be left to Prof Ghabrial.

Pain is lateral right calf to sole of right foot with no real toe involvement - also has a proximal right hip component which fits a bit more with S1 than L5”.

The plaintiff said that this “could be” correct: T52.44. He did not recall an MRI scan but did recall a referral to Professor Ghabrial. He said he did recall lower back pain and sciatica pain in November 2010 but said he was not taking painkillers at the time: Exhibit A page 168.

When asked whether he made a claim for total and permanent disablement benefits in December 2010 the plaintiff said “I guess so”: T53.27. He agreed that he had ongoing problems with his back and neck and said that in relation to a suggestion of ongoing pains in his shoulder he “guessed” that that was correct: Exhibit A pages 310-312. In relation to the suggestion that he was still having significant problems with his neck, back and right shoulder as a result of the 2008 and 2009 accidents the plaintiff said “I guess so”: T53.50. The plaintiff said he was entitled to make the claim as he had been off work for six months.

The plaintiff was then cross-examined as to whether he was not working at all at this time. The plaintiff claimed to be working at SME Electrical but not doing paid work: T54.21. He said he had been off work for six months. When it was suggested to him that he was working when he put in his claim, the plaintiff said he was a director of SME Electrical but was doing no physical work and was not being paid: T55.1. He said at the time he was building the company and could not afford to draw a wage. He said he did not draw a wage until December 2010: T55.19.

The plaintiff agreed that Dr Peterson had signed his claim for total and permanent disablement benefits: see Exhibit A pages 323-324. He said he was not sure but he assumed that he had talked to Dr Peterson in order for him to provide the medical certificate. Whilst the plaintiff confirmed that he had continuing problems with his lower back in early 2011 he said his job involved sitting down. In relation to the suggestion of ongoing shoulder problems, the plaintiff said that he guessed that was correct: T56.13. He could not recall whether he had ongoing sciatica pain at the time: see Exhibit A page 170.

8. Consultations in March/April 2011 with Dr Peterson: The plaintiff was further cross-examined in relation to his condition in the first half of 2011 including in relation to right shoulder pain and bilateral L5 or S1 sciatica pain but could not recall the details of the consultations. He agreed that he had a steroid injection in his right shoulder but could not remember whether this was in mid-2011. Mr Ramsay accepted that he had ongoing problems with his right shoulder. The plaintiff could not recall Dr Peterson referring him to Dr Osborne, Orthopaedic Surgeon. The report of Dr Osborne dated 22 August 2011 states the following:

“… it is clear that Stephen has impingement which has failed non-operative treatments. I think he also has a symptomatic supraspinatus tear. I put to him that the natural history of supraspinatus tears is that the worst case scenario is to become irreparably large and develop a rotator cuff arthropathy. Obviously while this may take many years, Stephen's first option is to accept this and have further non-operative treatments. His other option of course would be to consider an arthroscopic acrioplasty and also a cuff repair, if required. I have explained today the pros and cons and outcomes and risks involved with this and also the time off work and rehabilitation that he might expect”: Exhibit A page 356.

65. The plaintiff said that he had been “pensioned off” from coal mine work at this time: T57.39. When it was put to him that he had problems with his back and shoulder and neck in 2011 he said that they were not to the extent which he had today: T58.13. It was put to the plaintiff that he told Dr Osborne that he still had pain in the shoulder and the pain was worse at night and that any overhead actions caused pain and his shoulder was weak. The plaintiff appeared vague in relation to these matters and said that it “could be”, it was “probably” the case and he “guessed so”: T61.11-.34. The plaintiff did not dispute these matters. It was put to the plaintiff that Dr Osborne said that he may need surgery. The plaintiff said that his recollection was Dr Osborne said that he did not need surgery at the time. The last paragraph of Dr Osborne's 22 August 2011 report was partly read to the plaintiff which included:

“[The plaintiff] is of the opinion that he is not prepared to accept the natural history of this condition. He would like to proceed to an arthroscopic acrioplasty and, if necessary, a cuff repair. I think that is reasonable. We will endeavour to gain approval from his insurers for this to be done”.

66. The plaintiff indicated that Dr Osborne said that with a 1cm tear he did not require surgery. He seemed to dispute that he wanted surgery but said that he agreed that he wanted a second opinion. The plaintiff stated that he was not sure whether he informed Dr Osborne that he wanted to proceed with the surgery but agreed that he “wanted to get better”: T64.45.

67. The plaintiff agreed that by late 2011 it was about two years since the mine accident and he still had problems with his right shoulder but said it related only to a 1cm tear not the larger tear which he had in the accident. He agreed that he still had ongoing problems with his right shoulder and wanted to get it repaired and it had not become better despite the treatment he had received: T65.21.

68. The plaintiff agreed that in early 2012 SME Electrical stopped its business and at the end of 2011 he was not doing heavy work but was only supervising or reviewing connections of cables to switches. Any physical work by him was probably not even one day per week. The plaintiff accepted that since 2009 he had not undertaken any heavy work and had only been involved in the occasional connection: T65.49. Mr Ramsay said he did not work at all in 2009 after the accident and then established SME Electrical. Thereafter he only supervised employees: T66.41.

69. The plaintiff stated that whilst SME was operating he did not draw a wage until December 2010 and then a weekly sum was drawn by mutual agreement with his partner at a set rate.

70. The plaintiff confirmed that Mr Milford, his commercial partner, continued to run an electrical business operating under the name SME Electrical as a sole trader. He said some of the electricians they used to employ were employed by Mr Milford as a sole trader. He agreed that he derived some profits from the work of the business SME Electrical and that the company also employed electricians.

71. It was put to the plaintiff that he did not work at all between February 2012 when the business ceased and the July 2014 accident. The plaintiff disagreed with this and said that he imported the motorcycles of which he had he previously given evidence. He said he could not do that work now because of the physical work involved and there had been a downturn in the industry. He accepted that he could get someone to do the physical work for him. It was again put to the plaintiff that he did no other work between February 2012 and the date of the accident and his answer was “pretty much”: T74.3.

72. The plaintiff was asked whether he was looking for work between February 2012 and July 2014. He said he was most probably looking for electrical work at the time but appeared to have a poor recollection on the issue. He said that he may have been doing a few cash jobs on the side. He was asked whether he remembered doing any work in this period and he said “not specifically”: T75.3.

73. It was put to the plaintiff that he suffered a spasm in his back which led to the fall on his driveway in February 2012: Exhibit A page 172 (entry for 9 February 2012). The plaintiff denied that it was due to a spasm in the back and said that he slipped in the rain but agreed that he might have told the doctor that he saw that he put his right arm out to “save himself” and that he already had “a rotator cuff tear”. Despite being recorded as complaining of back pain at this time the plaintiff said that he did not fill prescriptions for painkillers and never took Lyrica and only took Oxycodone once which made him sick. The plaintiff said he did not take headache tablets and only used Voltaren occasionally: T78.1.

74. The plaintiff could not recall complaining of a recurrence of back pain in May 2012 but agreed that he wanted to obtain a medical certificate to avoid attending court as it was too far for him to drive from the Central Coast to Hornsby because of the pain. In the end, the plaintiff said that he did not need to attend court for the attendance. A medical certificate was given: Exhibit A page 258. The plaintiff denied that he stopped work in February 2012 because of his medical condition or that after he fell on the driveway he could not work anymore.

75. The plaintiff was then cross-examined in relation to his alleged work for Greenacres Landscaping Pty Ltd as a site supervisor. He agreed that Greenacres Landscaping was owned by a Mr Joe Sarkis and that he had done electrical work for Mr Sarkis over the years. He said that he met Mr Sarkis at a social card game about three to four months prior to the accident and he asked him whether he wished to work for him. The plaintiff said that he had rung him a couple more times after this in relation to the work and Mr Sarkis offered him the job about two and a half to three months before the accident.

76. The plaintiff said the work was supervisory work with the plaintiff to complete any electrical work involved in landscaping. The plaintiff said he did not tell Mr Sarkis his problems arising from his injuries and that his problems with his neck, back and arm were spasmodic at that occasion: T82.26. In relation to heavier work, he said other men did that work and he would only be involved doing the connections.

77. The plaintiff said that he worked for one day visiting four jobs and meeting the workers. The arrangement was for him to start work the next week. He said Mr Sarkis had paid him $200 in cash for his work and the arrangement was that he would be paid on an hourly rate and be provided with a car with his telephone costs to be paid. The plaintiff said he was sure that the offer was made and that he did a day’s work prior to the accident. The plaintiff said that he regarded the work as being an induction for a day. He denied that he had not started work at all for Mr Sarkis. The plaintiff said that he rang Mr Sarkis a day after the accident and told him that he had been injured in the accident. He said he would get back to him but he did not recall when he told Mr Sarkis that he could not work for him. He agreed at the time that he did not know how his injuries would progress.

66. In cross-examination, the plaintiff confirmed that the question of working with Mr Sarkis was raised by Mr Sarkis on the long weekend, several weeks before the accident, during a card game: T105.18. He said that he discussed the position a couple of additional times with Mr Sarkis on the telephone. The plaintiff said that he arranged to meet Mr Sarkis at the Blacktown site of a job about a week before he met up with him. The plaintiff said that he had to see whether he could do the work: T106.3. At that time he understood that the offer from Mr Sarkis was “on the table”: T106.9.

67. The plaintiff stated that Mr Sarkis was going to have surgery on his neck and he did not have a supervisor, particularly a person who was an electrician. The plaintiff said that Mr Sarkis needed someone to be a supervisor in his business as he was recovering from his surgery. The plaintiff said that Mr Sarkis did not say how long he would have off: T107.22. However, the plaintiff said it was an offer of a permanent job full-time as the supervisor and to undertake the electrical works: T108.3. The plaintiff said that he understood Mr Sarkis wished to build his business by having time to do more quoting work.

68. The plaintiff stated that at that time he was living at Balcolyn at Lake Macquarie. He said he understood Mr Sarkis had jobs all over Sydney and on the Central Coast and he would be required to commute to Sydney for work: T109.26.

69. Whilst the plaintiff conceded that he had back problems prior to the accident, he disputed that he would not be able to do the travel for the proposed job. The plaintiff was reminded that the medical certificate which he had obtained on 9 May 2012 as to his back meant that he was unable to drive from the Central Coast to Hornsby for a court hearing: Exhibit A pages 173 and 258. The plaintiff initially claimed that this was because he had fallen down his driveway a couple of days earlier. When it was pointed out that this occurred in February 2012 not May 2012 (Exhibit A page 172 medical note for attendance on 9 February 2012), the plaintiff appeared to not recall the details. When he was asked to assume that the certificate was obtained on 9 May 2012, the plaintiff said he must have had a bad back at the time: T111.28. When it was put to him that he had had a back problem since 2009, the plaintiff said that he sometimes did but not every day: T111.36. The plaintiff rejected the proposition that even if there was an offer on the table from Mr Sarkis that the commuting would have been too much for him: T111.47.

70. It was put to the plaintiff that as the offer he had given evidence of was supervisory work and signing off on electrical works and that the physical work was done by others, he could do such supervisory work now. The plaintiff said that he was not able to do the work now. The plaintiff agreed that his position had improved after the shoulder surgery in 2017 but stated that he never recovered the full range of movement since the 2017 surgery.

71. The plaintiff was asked about a 1000cc motorcycle which he owned. He confirmed that he bought this a month after the accident in August 2014. He said he bought it to “make [me] feel better”: T87.16. He said he drove it for 20 minutes to have coffee or lunch and then drove it home.

72. The plaintiff was then asked about what he had told the hospital staff at Wyong Hospital on the day of the accident. The plaintiff said that he could not recall what he told the hospital staff as he was in shock. He agreed that the hospital referred him to his general practitioner, Dr Peterson, for management. The plaintiff said that he “most probably” went to see Dr Peterson the day after the accident but did not appear to have a good recollection of what he told Dr Peterson as he said he was in a lot of pain. He said the pain was in his right shoulder and neck and that he had injured his foot: T88.30.

73. It was put to the plaintiff that he did not tell his general practitioner that he had injured his toe. The plaintiff said that he did from the beginning. It was put to the plaintiff that he did not refer to any injury to his foot or toe for months after the accident to his general practitioner. The plaintiff denied this: T88.36. The consultation notes of Dr Peterson for 31 July 2014 refer to the plaintiff hitting the ground with his shoulder and a CT scan not showing any bony injury. Limitations to the plaintiff's right shoulder were noted: Exhibit A page 176. Bruising over the right greater trochanter was also noted. Dr Peterson requested an MRI of the right shoulder to check for right lateral rotator cuff injury.

74. The plaintiff agreed that Dr Peterson referred him to Dr Bateman and that he undertook surgery to his right shoulder in 2017. The plaintiff said in chief that he had no surgery to his shoulder in 2014. The plaintiff did not appear to dispute that he last saw Dr Bateman in 2017 but confirmed that he had not seen him for a couple of years. The plaintiff accepted that he had last seen Dr Bateman about three months after the surgery. It is noted that in his 17 August 2017 report (Exhibit A page 59), Dr Bateman expressed the opinion on examining the plaintiff three months after the repair of what was described as a “massive retracted rotator cuff lesion in his right shoulder” that “functionally he is doing very well”. Dr Bateman expressed the opinion that the arthrogram showed “the cuff is intact”. He stated that the plaintiff should go on to “a good to excellent result by 12 months”. He recommended a physiotherapist for a strengthening and conditioning program and then a gym based program under the supervision of an exercise physiologist. Dr Bateman recommended that the plaintiff see Dr Hunter in relation to his foot complaint.

75. The plaintiff gave evidence that Dr Bateman’s assessment was better than he was. He agreed the Dr Bateman told him he had a good outcome but he stated that he still could not lift his right arm above his head. He agreed that Dr Bateman said it was an excellent result but he disagreed with this: T92.31. The plaintiff stated that he had not gone back to see Dr Bateman as the insurance company had refused the request to do so. He agreed however that he had seen Dr Bateman for other injuries to his neck, left knee and shoulder after August 2017: T93.3 and Exhibit A page 57. The plaintiff indicated that the surgery to his right shoulder had left him in “complete agony” for six weeks: T93.45.

76. The plaintiff was cross-examined about his evidence that he frequently received electrician job offers both before and after the accident. The plaintiff confirmed that when he was at SME Electrical he was not required to do heavy electrical work and usually supervised or watched others and doing hands-on work was very infrequent. The plaintiff was asked why he did not take the regular offers of work which he was given in the period from February 2012 to July 2014. The plaintiff said this was because he had worked long hours at SME Electrical and he needed a break including a holiday.

77. When it was put to the plaintiff that he had not worked for two years and four months from February 2012 to July 2014, he referred to his importing of the motorcycles. He said that he wanted time off to enjoy himself. The plaintiff stated that he was “maybe” “sick” of electrical work and had had enough of being an electrician: T119.24. He said he constantly worried as an electrician about his work and at that time he was going to university. When it was put to the plaintiff that he was “over” doing electrical work, the plaintiff said it depended on the job: T120.22. He denied that he would not have taken up offers of jobs anyway and repeated that it depended on the job and he was going to university: T120.39.

78. In re-examination, the plaintiff agreed that he had problems with his low back since 2009 but said it was not an everyday thing: T125.42. The plaintiff said that he had a lot more frequent pain in his back after the July 2014 accident: T125.47.

79. The plaintiff said that he played golf and water skied after the 2009 accident but said that he could not do those activities now. In relation to golf, he said that he could not swing a golf club because of his shoulder and back. In relation to water-skiing, the plaintiff said he was concerned about what would happen if he fell.

80. In relation to his right shoulder, the plaintiff agreed that he had problems with his right shoulder after the 2009 accident and that he had shooting pain all the time with his right shoulder which affected his work: T127.9. The plaintiff said that there was a difference after the July 2014 accident with his right shoulder. Prior to the operation in 2017 he could not lift weights, he had extensive pain and he had sleep problems. Whilst the 2017 operation improved his shoulder for a period, it was not a permanent improvement and it went “backwards”: T127.28.

81. The plaintiff said that he could not do supervisory work now, as he could not wear work boots because of his foot. He said he could not also engage in electrical commissioning work unless he could wear work boots: T127.34.

82. The plaintiff said he had commenced his half year university course in June 2014 at the University of Newcastle: T127.42.

83. From his evidence, the plaintiff appeared to have some memory problems. He stated this expressly on a number of occasions and appeared to have difficulties in recalling accidents or the timing of matters. He frequently answered questions with “I guess so” or “must have” where it appeared that he had no real recollection. The plaintiff also appeared to be very angry in relation to his current medical condition and focussed that anger on the defendant's insurance company and on the legal representatives for the defendant. Whilst the plaintiff was willing to make concessions in some areas, the problems with his recollection lead me to the view that some caution should be shown in accepting his evidence except where it is supported by independent evidence. In particular, the court is of the view that in general, preference should be given to contemporaneous independent documentary materials where they are inconsistent with the plaintiff's recollection on matters.

Oral evidence of Shayne Russell

96. Oral evidence was given by Ms Shayne Russell who is the former de facto partner of the plaintiff Mr Ramsey. Ms Russell gave evidence that she and the plaintiff had formed a relationship in about 1990 and had lived together since then until they separated. She said they had been “on and off” for the last several years. Ms Russell said that she and the plaintiff had three daughters together aged nearly 15, 25 and 28. Ms Russell stated that she lived in a house owned by her grandmother with her two youngest daughters and that the plaintiff came to stay there regularly when he had nowhere else to stay.

97. Ms Russell gave evidence that the plaintiff had been employed as an electrician and was always very fit and had a good demeanour. She said that prior to the 30 July 2014 accident, the plaintiff was physically well, active, helped around the house including undertaking the mowing of the lawns, played golf, water skied and rode motorcycles and spent a lot of time with their children: T130. In her evidence in chief, the plaintiff only recalled one accident in which the plaintiff was involved which was his boating accident: T130.9. Ms Russell said the plaintiff did not have any physical problems prior to the accident.

98. Ms Russell said that on the day of the accident she was called by the plaintiff to pick him up. She said that he was “not standing right”, was not making sense and appeared to be in shock. She said he appeared to be focusing on the lady and her child in the car which he had struck. She said she drove the plaintiff to Wyong Hospital and stayed with him there for a number of hours until he left the hospital between 1am and 2am when they went home. At the time, Ms Russell said that the plaintiff was going to university and she was not sure whether he had started a job but was working on and off: T131.33.

99. Ms Russell said that the plaintiff did not appear to have recovered from his accident. She said he was going to doctors constantly, appeared to be begging for help in relation to his shoulder and was in a lot of pain. She also said that he was complaining about his foot constantly. She said that she looked after him including helping him with showers. She said that the plaintiff displayed significant anger in relation to his pain and was not able to take medication which he was prescribed: T132.8.

100. Ms Russell said that she and the plaintiff had separated in 2018, as she could no longer handle his anger and pain: T132.24. She said that he lost his temper over minor things, yelled at her and became very dependent on her. She said that this had also required her to see a psychiatrist and they had lost “everything” including their house: T132.38-.46.

101. Ms Russell said that the plaintiff's anger also had a detrimental effect on his relationship with his daughters who could not deal with his substantial change in temper and his physical abilities since the accident: T133.2. She stated that she understood that the plaintiff had seen a psychologist for counselling and had been prescribed antidepressants but could not take them: T133.11.

102. Ms Russell stated that the plaintiff stays with her now when he has no money. She said that she could not deal with him unless he obtained help in relation to his anger issues. She described him as a “hopeless” invalid: T133.21. In particular, Ms Russell gave evidence that the plaintiff screamed in his sleep and had done so for the last five years at least. He appeared to have recurrent dreams of the accident and did not sleep properly.

103. Ms Russell gave evidence that the plaintiff tried to assist in relation to maintenance matters concerning her grandmother's house in which she resided. However, he could not do this. He also tried to mow the lawns but could not finish the task. Prior to the accident, Ms Russell said that the plaintiff undertook the lawns and helped with washing and house maintenance. She said that the plaintiff sometimes still cooks to assist.

104. Ms Russell said that she obtained assistance with maintenance of her house every three months. Assistance was given in relation to the hedges and repair items around the house for a couple of hours every three months: T135.18. Ms Russell said that she was able to mow the lawns. If the plaintiff started mowing she said that she finishes the task. She said it is often easier for her to do tasks than ask the plaintiff to assist.

105. Cross-examination revealed that Ms Russell had significant difficulties with her recollections in relation to various matters including timing. Ms Russell could not recall whether the plaintiff had ceased water-skiing prior to the July 2014 accident. She said she worked a lot at this time. She accepted that at the time of the accident the plaintiff was not working, was at university but did odd jobs. She could not recall the plaintiff not working for more than two years prior to the July 2014 accident. She said that at that time they still had money in the bank and she believed the plaintiff did some odd jobs including cash jobs. She believed the plaintiff had money left over from his business with SME Electrical. In the end, Ms Russell could not recall that the plaintiff had not worked for more than two years prior to the July 2014 accident: T137.1; T137.35.

106. Ms Russell was cross-examined about the plaintiff's prior accidents. After some questions, she recalled that in addition to the boating accident the plaintiff had had an accident in a mine. She could not recall whether the plaintiff had ongoing problems arising from that accident including a right shoulder injury in the accident in 2009: T138.7. She believed the plaintiff had obtained assistance including from a chiropractor and had recovered. She then admitted having memory problems particularly since she had been taking antidepressants: T139.37. Ms Russell could not recall the plaintiff seeing specialists concerning his right shoulder injury in the 2009 accident or about talking about going ahead with surgery.

107. Ms Russell also did not recall the plaintiff's business with SME Electrical ceasing more than two years prior to the accident. She said that they still had money left in their bank account and the mortgage was paid on time.

108. Ms Russell was asked whether the plaintiff had problems with his back which meant that he could not drive to Sydney in 2012. She said she could not recall the plaintiff having problems with his back or neck at this time: T139.

109. In relation to the plaintiff’s university studies, Ms Russell gave inconsistent evidence about when the plaintiff started at university. The plaintiff had indicated that he started at Newcastle University in June 2014. Ms Russell believed he had been attending university for one and a half to two years at the time of the July 2014 accident: T140.19.

110. In relation to domestic assistance at home, Ms Russell agreed that the plaintiff did some vacuuming, some lawn mowing and some maintenance but after 15 minutes he usually stopped assisting as his arm was too sore: T140.39.

111. Ms Russell impressed the court as being a fairly straightforward and honest witness who was doing her best to answer questions truthfully. However, she readily conceded that she had memory problems due to taking antidepressants. She also appeared to have a poor recollection in relation to the plaintiff's accidents, medical problems and work situation prior to the July 2014 accident. Some caution should be exercised in relying on her evidence unless it is supported by other reliable evidence.

Oral evidence of Craig Lewin

112. Oral evidence was given by Mr Craig Lewin who is an electrician friend of the plaintiff. Mr Lewin gave evidence that he had known the plaintiff for between 18 and 20 years and had worked with him at various sites and locations including the Cross City Tunnel Project, the Lane Cove Tunnel Project, in mines and at work on the Liddell Power Station.

113. Mr Lewin described the plaintiff as a “gun” worker (T142.40) and that he was very strong particularly in dealing with large and heavy electrical cables. Mr Lewin stated that he had worked for the plaintiff at his company SME Electrical in about 2012 where he was hired out to work for other companies: T143.14. At SME, Mr Lewin said that the plaintiff was his boss and he did not work with him but for him: T143.28.

114. Mr Lewin said that he kept in regular contact with the plaintiff and regarded him as a good friend. He said that they spoke regularly and tried to meet up every six weeks to two months.

115. Mr Lewin gave evidence that the plaintiff seemed fine mentally and physically prior to the July 2014 accident: T143.17; T143.24. He said that the plaintiff had told him about the motorcycle accident in August 2014 and the plaintiff stated that he had damaged his shoulder, had a sore leg and ankle and had hurt his back. Mr Lewin said that he had seen the plaintiff after the accident and he appeared to be a “broken man” who was sore and had hampered movements particularly in his shoulder: T144.14.

116. Mr Lewin stated that since the accident the plaintiff's demeanour had deteriorated and he had low confidence and was angrier with a worse temper. He noted that the plaintiff had restrictions in his movements: T144.25-.45.

117. Mr Lewin gave evidence that he had been working for several months on a major project for Coles in the Hunter Valley. He said he had a supervisor on the site who ran the job including organising the materials and the workers and dealing with wholesalers and deliveries. He said the supervisor worked “on the tools” when needed: T145.26.

118. Mr Lewin said the plaintiff could not do that work at the moment as he physically could not do it and it required work additional to paperwork such as picking up stock and assisting when required.

271. I would allow no further amount for loss of superannuation which I have taken into account in assessing the award. I find in any case that the plaintiff would more likely have worked as a private contractor with his prior injuries and not as an employee.

Past domestic assistance

275. This was not claimed.

Future domestic or commercial assistance

276. An amount of $40,000 is claimed by the plaintiff for future commercial assistance. It was submitted that the plaintiff will in the future likely need commercial assistance as he will likely establish suitable accommodation for himself and will need help with some domestic tasks.

277. The plaintiff currently lodges with his eldest daughter or his ex-partner who remains kind and supportive to him.

278. Ms Russell gave evidence of the plaintiff having limitations with domestic tasks: T135.2-.23; T140.25-.39. The plaintiff stated that he had fewer limitations and that the domestic position is “the same”: T104.29.

279. Before an amount for commercial assistance can be awarded some need arising from the accident must be shown. That need may include a need for commercial assistance likely to arise in the future: see Miller v Galderisi [2009] NSWCA 353 at [18]; Smith v Alone [2017] NSWCA 287 at [73]-[77].

280. The plaintiff lives in his daughter’s house and Ms Russell’s house as their guest. Ms Russell does not own the house she lives in which is owned by her elderly grandmother. In my view it is likely that the plaintiff will need his own residence in the future. That residence is likely to be a unit rather than a house. There is no evidence he intended in the future to rent a house. The plaintiff gave evidence of having difficulty with some tasks; T104.30. Ms Russell gave similar evidence: T140.39. Having regard to the aggravation to the right shoulder and neck I consider it likely the plaintiff will need some assistance with heavier tasks or above shoulder cleaning on an occasional basis. Doing the best I can, I allow $7,000 under this head after allowing for a discount as required by Avopiling, above, for the situation where there is improvement or he continues to reside as he currently does (based on a starting proposition of $50 per hour for four hours every 2 months for ten years).

Summary of the amounts awarded

281. Accordingly I award the following amounts as damages:

Head of damages
Non-economic loss – N/A	Nil
Past out-of-pocket expenses	$43,530.00
Future out-of-pocket expenses	$8,426.04
Past economic loss	$75,000.00
Future loss of earning capacity	$125,000.00
Past loss of superannuation	Nil further (within amount for past loss)
Future loss of superannuation	Nil further (within amount for future loss)
Past domestic assistance – N/A	Nil
Future commercial assistance	$7,000.00
Sub-total	$258,956.04
Less 20% for contributory negligence	$51,791.20
Total	$207,164.84

Determination

282. The parties should review my calculations and bring in short minutes of order reflecting these reasons. An allowance will need to be made for the s 83 payments. I also understand there may have been some payments to the plaintiff on account of his economic loss by the defendant.

283. Accordingly, I make the following orders:

1. Judgment for the plaintiff.

2. The parties are to bring in agreed short minutes of order within seven days reflecting the court's reasons for decision.

3. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed.

4. The parties have leave to make an application within 14 days to vary the order as to costs in (3) above.

5. Liberty to apply to the Associate to Dicker SC DCJ to relist the matter on two business days’ notice.

6. Exhibits are to be returned after 28 days.

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Decision last updated: 06 August 2020