Sam Chamma v Soliman & Sons Pty Ltd

[2008] NSWSC 165

CITATION:	Sam Chamma v Soliman & Sons Pty Ltd & Ors [2008] NSWSC 165
HEARING DATE(S):	20.21,22,23,24,27,28,29,30,31/08/07; 3,4/09/07; 31/10/07; 2,5,6,7,8,9,12,13,14,15,16/11/07
JUDGMENT DATE :	5 March 2008
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 499
LEGISLATION CITED:	Occupational Health and Safety Regulation 2001; Workers Compensation Act 1987; Evidence Act 1995; Civil Liability Act 2002; Land Reform (Miscellaneous Provisions) Act 1946
CASES CITED:	Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 686; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 60 ALJR 194; Est Late M T Mutton v Howard Haulage Pty Ltd [2007] NSWCA 340; Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338; Lapcevic v Collier [2002] NSWCA 300; Maricic v Dalma Formwork (Australia) Pty Ltd [2006] NSWCA 174; Commissioner for Railways v Halley [1978] 20 ALR 409; Davies v Adelaide Chemical & Fertiliser Co Ltd (1946) 74 CLR 541; State Rail Authority v Wiegold (1991) 25 NSWLR 500; Leonard v Smith (1992) 27 NSWLR 5; Goljak v Trivan Pty Ltd (1994) 35 NSWLR 82; Glynn v Challenge Recruitment Australia Pty Ltd. [2006] NSWCA 203)
PARTIES:	Sam Chamma - Plaintiff Soliman & Sons Pty Ltd - First Defendant Chubs Construction Pty Ltd - Second Defendant APA Construction & Consulting - Third Defendant
FILE NUMBER(S):	SC 20252 of 2005
COUNSEL:	Mr P. Semmler QC with Mr G Walsh - Plaintiff Mr P Jones - First Defendant Mr D O'Dowd - Second Defendant Mr A. Sandroussi - Third Defendant
SOLICITORS:	CMC Lawyers - Plaintiff Lee and Lyons Lawyers - First Defendant Bartier Perry - Second Defendant Ays Legals - Third Defendant

SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

5 March 2008

No: 20252 of 2005

Sam Chamma
v
Soliman & Sons Pty Ltd – First Defendant
Chubs Construction Pty Ltd – Second Defendant
Patrick Atra trading as APA Construction & Consulting – Third Defendant

JUDGMENT

INTRODUCTION:

1 At all material times, the Plaintiff was employed by the Second Defendant (Chubs) as an apprentice carpenter. On 18 June 2004, during the course of his employment, he was injured when he fell from a partly completed second floor balcony at 9-17 Robertson Road, Sutherland (the building site) on which a block of home units was in the course of construction.

2 The First Defendant (Soliman) was the head contractor in occupation of the building site and responsible for the construction of the home unit building. It had subcontracted with Chubs for the provision of carpentry work.

3 The Third Defendant (Atra) had contracted with Soliman for the provision of foreman services at the building site.

4 In respect of his injuries, the Plaintiff brought this action against Soliman, Chubs and Atra.

5 At the hearing the Plaintiff was represented by Mr P Semmler QC with Mr G Walsh, Soliman by Mr P S Jones, and Chubs by Mr D O’Dowd. On the first day of hearing, Mr Sandroussi, solicitor, appeared for Atra. He thereafter appeared from time to time but took very little part in the trial. On 14 November 2007, the 23rd day of hearing, upon the application of Mr Semmler, I dismissed the proceedings against Atra with no order as to costs.

THE PLEADINGS:

6 By his Third Further Amended Statement of Claim, the Plaintiff pleaded causes of action in negligence and upon the alleged cause of action arising from breaches of the Occupational Health and Safety Regulation 2001.

7 Soliman was sued on the basis that at relevant times the building site was occupied by it and was under its care, control and management. Chubs was sued as the Plaintiff’s employer. All these assertions were admitted on the pleadings or during the course of the trial.

8 The two causes of action were extensively particularised, but it is unnecessary to detail such particulars. Nor is it necessary to refer to the detailed particulars of the Plaintiff’s injuries and disabilities. Suffice to say that he fell over 5 metres on to concrete and suffered injuries, which included multiple fractures of bones in his face, right arm, left wrist and right knee.

9 The Defendants, in effect, denied negligence; denied breach of the regulation; pleaded the benefit of s151Z and other relevant provisions of the Workers Compensation Act; and pleaded contributory negligence by the Plaintiff. There were cross-claims seeking contribution or indemnity between the Defendants. Those involving Atra were not pressed in final submissions.

THE PLAINTIFF’S EVIDENCE:

10 The Plaintiff was born on 9 January 1983 and grew up in Ashfield and Bonnyrigg, suburbs of Sydney. He is married and lives with his wife, Sharmaine and son, Zayne, born about 6 weeks before the hearing commenced. The family resides in a ground floor duplex unit at Hinchinbrook.

11 He completed Year 10 at Bonnyrigg High School and acquired a School Certificate. He said that he was “pretty much an average student”. While still at school, he engaged in part time employment and after leaving school worked successively for a kitchen maker, and a form worker. He decided that he enjoyed working with timber and that he would seek to qualify as a carpenter. His ambition was to become a contract carpenter, and perhaps end up as a project builder. He had a number of relatives including his brothers in the building industry.

12 He enrolled at Miller TAFE in a 3-year course entitled “General Construction (Carpentry) Housing, which he successfully completed and became eligible to receive what was known as a “Certificate III” during 2003.

13 He also became enrolled as an apprentice, initially with a company which went into liquidation, but, subsequently, with Chubs where he continued his apprenticeship. That firm was engaged in general carpentry work, including roof framing, wall framing, construction of ceilings, pergolas, etc. He said that he “loved” his employment, working with timber and being able to see the finished products of his labour. As it seems, he worked for Chubs for some 2 or 3 years before the subject accident. He said that in his time with the company he was not given any instruction about the dangers of working at heights and this evidence was not challenged.

14 On 23 October 2002, he was involved in a motor vehicle collision when the car in which he was travelling was struck from behind by another vehicle. He was taken to hospital and x-rays were taken. Lower back pain and disability caused him to be absent from work for a number of weeks during which he received physiotherapy treatment. He was paid benefits under the Workers Compensation Act.

15 Upon return to work, he performed light duties for a while during which his back injury appeared to recover completely. By 2004, he regarded himself as completely fit and was performing all the work of an apprentice carpenter including heavy work and work in confined places.

16 His recreational pursuits included playing soccer at weekends with friends, (not in an organised competition), and working out at a gymnasium about 4 times a week. None of this physical activity caused any problems with his back.

17 Part of his course at TAFE was directed to occupational health and safety, which he said resulted in him receiving a “green card”. However, this course taught the dangers of operating power tools rather than such matters as those of working at heights.

18 In April 2004, with other employees of Chubs, he first went to the building site. They were accompanied by Mr Charbel (Charlie) Ibrahim, the principal of Chubs, which had contracted to provide “roof framing, roof battens, eaves and gable lining”. The units, which according to the Plaintiff, comprised 3 or 4 storeys (3 seems to be accurate), were not then roofed but the brickwork of the walls appeared to be finished and there was perimeter scaffolding, apparently erected in anticipation of roof construction.

19 He said that no safety induction was given to him at the building site, although he had previously received such induction on other building sites. Typically, an induction would involve the provision of information as to general safety measures in force at the site, including such things as the location of first aid sheds, the availability of first aid and the identification of places where it was unsafe to work. He did, however, sign a document headed, “Site Work Induction Register”, which he said he did at the request of the site foreman. He said that he understood that Soliman was the head contractor on the site, a circumstance which was common ground.

20 Between first attending the building site in April 2004 and the date of the accident on 18 June 2004, the Plaintiff said that he worked there, on and off, interspersed with work at other locations. His instructions as to where to go each day were normally conveyed by telephone by Mr Ibrahim and he travelled to where he was directed in a van with other workers and tools. The van had the name of Chubs prominently displayed. Usually a qualified tradesman employed by Soliman was on the site with him.

21 On 17 June 2004, at the direction of Mr Ibrahim, the Plaintiff, with a second year apprentice, Mr Sarkis Ibrahim, and a labourer, Mr Simon Ibrahim, worked at the building site framing up a gable and lining the underside with fibro. This work was done at the rear of the building near Sutherland Lane and, as it was work at height, a “cherry-picker” or boom lift with an enclosed cage, which was on site, was used with the authority of Mr Atra. The scaffolding, previously around the perimeter of the building, had by then been removed. The cherry picker was fitted with harnesses which the Plaintiff and his co-workers used.

22 The work performed on 17 June remained incomplete at the end of the day and that night, or early the next morning, the Plaintiff said that he was telephoned by Mr Charlie Ibrahim and told that he was to return to the building site and finish the gables and eaves. Mr Ibrahim said that the work needed to be finished in order for him to be paid, and that if he wasn’t paid then neither would be the Plaintiff. He was told that he would have with him Sarkis Ibrahim and Phillip Sakr, another apprentice.

23 On 18 June 2004, the Plaintiff arrived at the site between 8am and 8.30am, in Chubs van, accompanied by Mr Sarkis Ibrahim and Mr Sakr. He parked in Robertson Street, across the road from the building site office. The 3 men, having alighted from the van, entered the site through an open gate and approached the site office, noticing as they did so, that the cherry picker was already in use by another contractor.

24 In the vicinity of the site office, they came upon a man established by the evidence to be Mr David Boswell. The Plaintiff’s version of the conversation which ensued was:

“As I was walking there, I met a gentleman named David Boswell and asked him, "Where is Patrick?" And he replied to me that "Patrick is not here today. I am taking care. I am the site foreman".

Q. "I am the site foreman"?
A. That's correct. He is taking care of the job today.

Q. Sorry?
A. He is taking care of the job today.

Q. He said, "I am taking care of the job today"?
A. That's correct. I told him who I was, from Chubs, and "I am here to finish off the gables and the eaves". He said to me, "okay". I told him, "the cherry picker is being used", so he told me, "go upstairs and find out how long they are going to be".

Q. "Go upstairs and find out how long they will be"?
A. Yes, how long will they be using it. So I went upstairs and spoke to the fascia guys and they said to me that they will be there for most of the day. I came back down and spoke to David Boswell.

Q. Where did you speak to him?
A. Back down near the front of the shed, front of the site office, sorry.

Q. Still about the same place as you have marked with the X there?
A. Just around there. I don't know if exactly but just around there, in front of the shed.

Q. At the front of the shed?
A. Yes.

Q. Incidentally, what is the approximate distance from the site office shed to where you parked your van with the word "Chub Constructions" on it?
A. 5 metres. Probably, it is a bit too close, probably yeah, about 10 metres diagonally. Yes, probably.

Q. Was there anything obstructing the line of sight from the van to the site office?
A. No, there wasn't.

Q. Alright. So you went back and spoke to Mr Boswell again, did you?
A. That's correct and let him know that they were going to be there for most of the day using it.

Q. At that stage did you have any particular intention, so far as what you were going to do was concerned?
A. Once I found out that they were using the cherry picker most of the day, yes I did. I had intentions of leaving and going to another job.

Q. Why was that?
A. Because there was no use for me being there. The cherry picker was being used. I needed it, to work from it.

Q. So did you, after you had told Mr Boswell that they were going to be using the cherry picker most of the day?
A. Yes.

Q. Did he say anything to you?
A. Well, he found out I will be leaving. I told him I will be leaving, there was no use for me to be there. And he said to me, he said to me "You got to stay and finish off the job because if you don't, Charlie won't get paid". So he ordered me to go up to the courtyard balcony to start finishing off the work, which the eaves had to be done.

Q. Right. And in what way did he speak to you on that occasion, could you describe it?
A. He was a bit upset, had a bit of a tone which he was like, it had to be done today. He wanted it finished or Charlie wouldn't get paid, so--

Q. Was there a certain urgency about it?
A. That's correct.

25 Following this conversation the Plaintiff said that he, Mr Sarkis Ibrahim, and Mr Sakr commenced to take tools up to a courtyard balcony. They also took there a stepladder borrowed from another tradesman working at the site.

26 The balcony was on the second floor of the building and access to it was gained through the unlocked door of the adjoining unit. There was no fence or railing demarking the edge of the balcony from a drop of some 5.6 metres to a concrete path below. Although there was no evidence as to the precise measurements of the balcony, Mr Sarkis Ibrahim subsequently estimated it as about 1.5 metres wide and about 2.5 – 3 metres in length. Those measurements seem to accord with various photographs tendered in evidence.

27 The Plaintiff found an accumulation of rubble on the balcony, which Mr Ibrahim swept to one side, creating a flat concrete surface upon which to base the stepladder. He set this up close to the wall, as far as possible from the balcony edge. The Plaintiff estimated the distance between the ladder and such edge as between 600 and 800 mm.

28 Asked whether he had safety concerns, he replied that he did not, as in his mind was only the thought that if the job were not done, his employer would not be paid. There was no one senior to him from Chubs on the site to whom he could speak and he did not telephone Mr Charlie Ibrahim to seek further instructions. He claimed that there was nothing on the balcony to which a harness could be attached.

29 As I understand it, the immediate task facing the Plaintiff and his colleagues was to construct a timber frame from the top of the wall of the balcony under the roofline upon which fibro eaves would sit. For this purpose, the Plaintiff, while standing on the ladder took measurements and called them out to Mr Ibrahim with the intention that he would cut timber to size. This had been occurring for some little time with the Plaintiff standing on the second rung of the ladder when the subject accident occurred. At one point, he said that he watched Mr Boswell walk through the courtyard to the back lane in the course of which he had looked up and, according to the Plaintiff, they had “eye contact”.

30 Altogether, the Plaintiff said he was on the ladder for about 20 minutes before, as is common ground, the ladder toppled, or the Plaintiff overbalanced and both fell over the edge of the balcony to the ground. At this time, Mr Sakr was in the toilet and Mr Ibrahim was inside the doorway of the adjoining unit.

31 The Plaintiff said that he has no recollection of the mechanics of the fall itself but he does remember trying to grab the edge of the concrete balcony as he fell past it. He thought he was going to die. Subsequently, he has had frequent upsetting flashbacks of his attempt to save himself. He next recalls waking up in St George Hospital.

32 The Plaintiff told Mr Semmler that if the cherry picker had been available he would have used it and that if a harness had been available he would have worn it.

33 He described his general state of health immediately before the accident as “pretty much perfect”, although, apart from the car accident mentioned, he had required surgery during 2003 for an infected pilonidal sinus which required surgical intervention on 2 occasions, 25 June 2003 and 30 October 2003. Thereafter, for a period, he required antibiotics and the attendance of a nurse at his home to apply dressings. He took pride in his level of fitness and attended a gymnasium 4 times a week. He also played social sport at weekends. He had a girlfriend, Sharmaine, and their relationship was serious enough for them to contemplate marriage, an event which subsequently occurred. With sport, attendances at the gymnasium, and social engagements with his girlfriend, he had a very busy life outside his work. He also had ambitions for his career in the building industry which, after a few years, he believed would have him as the proprietor of a project building company, although that was contingent upon him first completing further TAFE courses. He loved his work.

34 He was also planning his financial security, in that he had put in train the purchase of a residential unit for investment purposes, which was to be financed through the National Bank. The accident prevented this project proceeding and it cost him of the order of $1,200 to $1,500 in cancellation and other fees.

35 The Plaintiff’s testimony was to the effect that he made a substantial contribution to the household of his parents with whom he lived. He mowed lawns, weeded gardens, did general handyman jobs, including house painting, washed the family cars and assisted his mother in household chores such as clothes washing, washing dishes and cleaning.

36 He described himself, in effect, as happy and contented with his life, looking forward to a planned and enjoyable future.

37 Unsurprisingly, the Plaintiff, having fallen more than 5 metres headfirst on to a concrete path, suffered severe and potentially life threatening injuries. It was common ground that this was so, although there was an issue as to the extent of his continuing disabilities. There was also an issue as to whether he suffered organic brain damage, although again it seems to be common ground that he has significant, continuing mental health problems.

38 He remained in hospital from the accident until 20 July 2004. Asked what troubled him most when he first became aware of his predicament, he replied “the state I was in, my leg, my arm, my whole face, my life, my future”.

39 Although, understandably vague as to the detail, he was aware that he had emergency surgery to his knee on the day of his admission; surgery on 24 June to his right arm and left wrist, which involved a bone graft and the insertion of plates and screws; a major operation on 26 June to his jaw; and another on 2 July to his face, which posed the worrying risk of him losing his right eye. This last mentioned operation left him with a large scar across the top of his head. He also required dental treatment as there was damage to his teeth, including the loss of a right front upper tooth. Not only were the medical procedures frightening but, according to the Plaintiff, throughout the whole of his stay in hospital he experienced very considerable pain, particularly in his head, right arm and left wrist.

40 Following the surgical procedures in hospital both of his arms were in plaster and his right leg was in a brace. The brace remained for some months following his discharge from hospital, during which time, as his leg was held in a rigid position, he found mobility very difficult.

41 The surgery to his right elbow, left his arm fixed in what he described as a 90-degree angle. It remained thus for about a year until partly released in a further surgical procedure.

42 Whilst in hospital, he said that he felt suicidal, “to me in my eyes my life was over. I couldn’t walk, I was all broken, my future was destroyed ….. no more work for me, no more plans that I had. I couldn’t do them no more. I looked at it as if it was not worth living, too much pain”. He found sleep difficult and when he did sleep he had nightmares about the accident.

43 He also noticed problems with his short-term memory, especially when questioned about people who had been to visit him and he became irascible towards members of his family, “it was just the state I was in”. He said that he is still easily frustrated, “sometimes I am happy, some times I am snappy. I get stressed, depressed. Just all them symptoms make me snap”. In hospital and subsequently, he has experienced intrusive thoughts of the accident but these, following psychotherapy, have somewhat diminished. Another condition first noticed in hospital which continues to trouble him is blurred or double vision, mainly with his left eye.

44 When the plaster was removed from his right arm, he noticed that the little finger of his right hand remained in a curled position and he is still unable to straighten it. One side of his right palm always feels numb.

45 In the course of treatment, many stitches and staples were inserted n his head which felt as if it was “going to explode and was very painful – when I got out (of hospital) it was a bit better. I still get the headaches and the dizziness”.

46 At the time of discharge from hospital he was taking powerful analgesic medication for relief of pain, virtually over the whole of his body. He was mobile with the aid of a forearm crutch.

47 Gradually, there was improvement in his mobility, aided by physiotherapy, although as his ability to walk improved he began to experience intermittent lower back pain, which, at times, could be intense and extend into his right leg. He continued to experience difficulty in sleeping and to have recurring nightmares of the accident. He commenced to consult a general practitioner, Dr Sellathurai (Dr Sella) and continued under the care of orthopaedic surgeon, Dr Hugh Jones.

48 In August 2004, he was returned to hospital under Dr M Klaasen for removal of the metal arch bars which had been inserted in his mouth. He also began to consult a psychologist, Mr V. Herrera. He underwent further dental treatment in relation to his right front upper tooth, which led to Dr P Sibraa replacing it with an implant which was later crowned and is still in place. In September 2004, he consulted an optometrist about his complaint of blurred or double vision.

49 Between 18 October 2004 and 28 May 2005, he had intensive physiotherapy to his right knee and left wrist, some 59 sessions in all. During this period, or most of it, he was driven to medical appointments by a member of the family as he was, at the time, unable to drive himself. Ultimately he became well enough to drive a car once more.

50 In April 2005, he was referred to a neurologist, Dr N Griffith, at Liverpool for the purpose of treating his headaches and dizziness which he was experiencing a few times a week and which, when present, lasted” an hour or two”, but he said the medication prescribed by Dr Griffith was ineffective.

51 It was Dr Hugh Jones who operated to release his right arm in September 2005, but the prospect of the operation worried him, in light of advice that there was the possibility of nerve damage. He sought a second opinion before consenting to the surgery. In the event, the surgery was only partially successful, in that while the arm became less restricted in movement, it remained far from what it had been before the accident. The surgery involved an overnight stay in hospital and having his right arm in a brace for about 6 weeks. He was also required to convalesce at home for a fortnight.

52 A month later, in October 2005, Dr Jones removed plates and screws from his right knee but was unable to remove them from his left wrist and they remain in place.

53 As I have indicated, before the accident the Plaintiff and Sharmaine had contemplated marriage. In the result they married on 14 April 2006, somewhat later than they planned, the delay being a direct consequence of the accident. The marriage went ahead, notwithstanding that, according to the Plaintiff, there were strains in their relationship after the accident, ”just my moods, my frustration, the way I always was depressed, my physical side, my mental side, just all affected it”. He said this was a far cry from their pre-accident relationship.

54 During 2006, the Plaintiff noticed facial twitching in his right cheek and a feeling of numbness, which extended from his top lip up the right side of his face across his skull and down the left side. This feeling continues to trouble him.

55 During 2007, before the birth of his son, Zayne, on 3 July, the Plaintiff and his wife moved from his parent’s home where they had been living to the rented premises at Hinchinbrook, referred to above, where they have continued to live.

56 Since May 2007 he has been under the care of Dr Raymond Tint Way, a psychiatrist, who is seeking to control his mood swings and depression. He was referred to Dr Tint Way by Active Occupational Health Services (Active), an organisation retained by his employer’s Workers Compensation Insurer, which has been attempting to secure his return to the work force. Dr Tint Way has prescribed medication which the Plaintiff said he takes.

57 In the period the Plaintiff was hospitalised from the accident until 20 July 2004, he was able to do nothing by way of caring for himself. During that period members of his family and Sharmaine visited him extensively. Typically, his mother visited each day arriving during the morning, leaving about 3pm and returning about 6pm for 2 or 3 hours. Sharmaine would come to the hospital after work and spend most of her weekends with him. During hospital visits Sharmaine and members of his family would regularly perform services such as feeding him, dressing him, shaving him and wheeling him in his wheel chair about the hospital. He agreed, however, that given time, most of these services would have been provided by hospital nurses.

58 For three months after discharge from hospital, the Plaintiff needed assistance with virtually every activity of living, including dressing, eating bathing, showering and toileting. He also had to be driven to and from his numerous medical appointments. He required assistance to move about the house and was unable to assist his family in any way with the performance of household chores. He did not keep a record of the time spent by others in performing tasks, which, had he been fit and well, he would have performed himself.

59 For the next nine months until the partial arm release in September 2005, the main impediment to him being able to care for himself was the very limited use he had of his dominant right arm. He was also hampered by a considerable restriction in the range of movement of his right knee. He was unable to bend, kneel or squat and, as a consequence, still needed assistance in dressing, although he was able to undress himself. He often bathed rather than showered, but needed assistance to raise himself out of the bath. He was partly able to shave himself but his double vision necessitated assistance when shaving one side of his face.

60 During this nine month period, he said that he continued to feel “depressed, frustrated, disappointed, shattered”. He remained unable to perform even minor domestic chores, even though on occasions he attempted them. Apart from the other disabilities mentioned he found that his grip with both hands was weak.

61 His situation improved to some extent during 2005 when he became able to drive a car again and was able to take himself to most medical appointments. He still felt unable to drive as far as Campbelltown, a round trip of 1½ hours, where he had physiotherapy twice a week. His brother customarily drove him.

62 In the more than 2 years since September 2005, there has been gradual improvement in his general condition but he still need assistance, which his wife provides, in drying after a bath or shower, in shaving, in rising from a bath, in putting clothes on his upper body, in putting on his socks and his shoes when laces are involved and in cutting his toenails. He estimates that his wife provides about half an hour a day on his personal needs directly related to the limited use he has of his right arm.

63 His inability to assist in the performance of household chores remains on going. He helps his wife with the shopping but is only able to lift and carry light items. He said he cannot sweep, vacuum clean, wash clothes, hang out washing or change bed linen, although this is inconsistent with what he told the occupational therapist, Ms Walcot, referred to hereafter. If he could, he said that he would assist his wife with all these activities. She is now engaged full time in household duties, having resigned her employment as a receptionist, two weeks prior to the birth of their son.

64 He estimates that he would have provided assistance to his wife and otherwise attended to household chores to the extent of 5 or 6 hours a week, which he said he would have been able to fit in after work or at weekends. He said that he would also have found time to perform gardening, handyman tasks and car washing as they are “things I love doing”. Where he lives now has lawn and garden, back and front. Sometimes, one of his brothers who lives nearby attends to it, other times he pays someone to do it. He estimated that his brothers devote 5 or 6 hours per week to work which he otherwise would have done himself.

65 The Plaintiff also said that he is not able to participate in looking after his son, as he would have wished. Virtually everything required is done by his wife, although he is able to wheel him in a stroller if his wife loads and unloads him. He is unable to place him in, or take him out of a car seat because this involves painful stretching and lifting and for similar reasons he is unable to bath him. When his son wakes at night and needs attention, the Plaintiff, as I understand his evidence, does not hear him if he is in a deep sleep induced by the insomnia medication, which he takes each night. He said that the child, who was only about 6 weeks old when the evidence was given, cries frequently and this makes him irritable to the extent that he will leave the room. He said that he feels “disappointed” that he cannot make a greater contribution to his son and fears that the situation will become worse as the boy grows older and bigger. He estimated that, if he were able, he would spend 2 to 3 hours a day assisting his wife with the child.

66 He continues to take a considerable amount of prescribed medication - Stilnox for insomnia; the antidepressant Cipranol, which also eases feelings of light-headedness; Epilim, a mood stabiliser; Oxycontin, a pain reliever; and Panadol or Panamax several times a week as needed. He said that medication costs of the order of $90 per fortnight, although documentary material tendered shows that the actual cost is much less than that.

67 He also continues to see the psychiatrist, Dr Tint Way once every three weeks and finds the sessions helpful. He consults Mr Herrera every two weeks. Twice a week he has physiotherapy, which consists of a gymnasium program and exercises in a hydra pool but he doubts the benefits of these exercises which significantly increase the level of his pain. However, the treatment was recommended and arranged by the “case manager”, appointed by Active and he feels obliged to continue to the end of the program

68 He told Mr Semmler that he was examined by Dr Roldan, a neuro-psychologist, on behalf of Soliman on 21 November 2005. Dr Roldan conducted neurological tests over some hours, in respect of which he said he participated to the best of his ability. He also agreed that he was examined by Dr Gibson, a plastic surgeon, and by Dr Bodel, an orthopaedic surgeon, on behalf of Chubs.

69 Mr Semmler took the Plaintiff, in some detail, through his complaints as at August 2007 when he gave evidence. He still has double vision when he looks to the left out of his left eye. Images overlap. He has an obvious scar from ear to ear across the top of his head. This scar, he said, is the subject of frequent comment and questioning which embarrasses him.

70 He suffers from headaches starting from behind his left eye which last some hours and occur a few times a week. One activity which produces them is operating a computer for more than about half an hour. The frequency and length of the headaches has been virtually unchanged since he left hospital.

71 He believes that his two eyes now differ in appearance as a result of facial surgery and that the appearance or shape of his chin, underneath which there is a scar, has altered. Generally, he said that his face appears “bloated”, but was unable to say whether this was simply the result of a general weight gain.

72 He continues to have a feeling of numbness over much of his face which he said is “itchy and annoying”. Sometimes he has severe facial pain from his jaw, extending into both cheeks and intermittently there is a twitching in his right cheek, which, he said is visible to observers and lasts about 2 hours. Episodes of facial pain, in frequency and severity, have also largely remained unchanged since he left hospital.

73 As indicated earlier, the Plaintiff lost a tooth in the accident, which was replaced with an implant. He said that he suffers “sore teeth” brought on by drinking anything hot or cold. He cannot chew “hard food” such as steak, apples, carrots, because “my jaw gets tired”. Such food has to be chopped into small pieces for him. Sometimes after he has been eating and chewing his mandibular joints, “crack”. He is unable to open his mouth as wide as before the accident. He had plastic plates inserted in his mouth following the accident, which were removed in August 2004. While he had the plates they were uncomfortable.

74 He said that his worst continuing problem is the restriction in movement of his right arm and elbow, which he cannot completely straighten, although it has improved since the surgery of September 2005. Apart from the fact that he cannot straighten the arm, the elbow is the site of pain and numbness, which he experiences once or twice a day and which lasts several hours. The pain seems to result from weather changes, from his elbow being bumped or knocked, and from writing. The nature and extent of this pain has been static for some time.

75 As a consequence of the disability in his elbow and right arm he is unable to perform carpentry work; he find it difficult to reach a comfortable sleeping position; he cannot extend his arm to reach for things; and he cannot cut his toe nails or carry anything heavy. There is also scarring which troubles him.

76 He has what he believes is a permanent deformity in his right little finger and a feeling of numbness which extends from that finger into his right arm. He said that he believes the grip of his right hand is not as strong as it used to be, although it is still stronger than the grip of his left hand. He assessed that his right hand grip is between 50% and 75% less than it was before the accident. As a consequence, he has leaned to use his left hand more, despite being right hand dominant.

77 There remains a degree of stiffness and lack of flection in his left wrist, which still contains plates and screws. He has scarring about 10cm long on the wrist and the grip of the hand is weak. The wrist is also the source of pain, “whenever I use it”. Again, the condition of the wrist seems to have reached a plateau.

78 He described his second worst problem as his right knee. He cannot extend his leg or bend it without significant pain and as a consequence cannot bend, kneel or squat. He experiences pain in the knee after “a lot of walking, a lot of standing. Pretty much using it”. If he sits for any time he has to stretch the leg and rub his knee as he said he did in the course of giving evidence. The knee aches when he is in bed at night, particularly in cold weather. It also gives way on occasions, which are unpredictable. He said that he can walk normally but after a while starts to limp.

79 He suffers intermittent pain in his lower back, which compares in intensity to the pain in his right arm and knee, particularly when it extends down his right leg. He first noticed this pain when he commenced to weight bear after being discharged from hospital. The present situation is that the pain, “comes and goes”, but there is never a week when he does not experience it. He also, sometimes experiences pain from the centre of his shoulder extending into his neck.

80 He gave a deal of evidence about his attempts to rejoin the work force, such attempts being overseen by Active from its office at Liverpool. On the face of it, at least, it took its responsibilities quite seriously. Unfortunately, however, neither Active nor the Plaintiff through his own devices has been able to find suitable employment.

81 His contact with Active seems to have commenced with a vocational assessment on 21 March 2006, when he saw a Dr Girdler. Since then he has unsuccessfully applied for about 5 jobs a week. When asked whether he would like to be working now, he replied:

“I’d love to. I used to love always working, love always being out of the house. It's just stopped me, just sitting there and seeing always doctors and having appointments. I'd just like to be out there and do my own thing.”

82 He identified the log of jobs applied for and said that he accompanied his applications with a resume which Active helped him to prepare. It also gave him advice and instruction as to how best to go about seeking employment, advice which he said he followed.

83 He has also attended twice a week what Active calls a “job club”. The “job club” is a room at the office of Active, where the Plaintiff and others sit around a table for about 2 hours and with the assistance of “case managers” and newspaper advertisements, make applications for employment by telephone, the internet, fax and email. He still attends these twice weekly sessions,

84 After objections as to the generality of the Plaintiff’s evidence regarding his unsuccessful job applications, Mr Semmler, in effect, asked him to be more specific and there was this exchange:

“A. They're my job logs that I used to fill out.

Q. What information did you put in those documents?
A. It's people that I've called or emailed or faxed, resumes, their names and their numbers, the dates, how I approached them.

Q. You mentioned resumes; did the Active people help you to create a resume?
A. Yes, they did.

Q. Did they give you advice and instructions how best to go about seeking a job?
A. Yes, they did.

Q. Did you follow their advice and instructions?
A. Yes, I did.

Q. Did they give you pamphlets on how to seek work and work trials?
A. Yeah.

Q. Is there a thing called the Job Club?
A. Yes, I used to attend that.

Q. What is that?
A. A Job Club where you got to go twice a week for two hours a day.

Q. That's four hours a week?
A. That's correct. Where you go in and there's other people sitting around a table. You read through papers, you go through the Internet, call people, fax people, email them looking for work.

Q. Is this at the premises occupied by Active at George Street, Liverpool?
A. That's correct.

Q. Was there a big room, was there?
A. Yeah, smaller than this room.

Q. Do you still go to that Job Club?
A. Yes, I do. “

85 Later in his evidence, the Plaintiff said that he had entered into an agreement with Active whereby he was bound to make at least 5 job applications per week, on pain of having his compensation payments reviewed. This agreement and his job logs were admitted into evidence as exhibits F and H, as was a Rehabilitation Progress report by Active, exhibit G.

86 The Plaintiff testified that in addition to assisting with job applications Active arranged for him to have 2 specific work trials, one at Bunnings Warehouse at Bonnyrigg and the other at the Caltex Service Station at Padstow.

87 He commenced the first trial at Bunning’s in August 2006 and remained for 6 to 8 weeks with periods of absence. The work was part time, 3 days a week, 5 hours a day but, nonetheless, according to his testimony, the work was productive of such a degree of pain that he was obliged to take time off. His duties required him to stack shelves with items of hardware, some of which he was unable to lift. Throughout the work trial, he said that he experienced back pain, knee pain, wrist pain, headaches and some dizziness. He said that he was very enthusiastic about the work and hoped to be appointed to the position of cashier but at the end of the trial he was told there was no position available.

88 Active sent to WorkCover a “Closure Report” in respect of the Bunnings trial, part of which read:

“The host employer Bunnings Bonnyrigg concluded that despite Mr Chamma putting in a great effort, there are too many restriction s for his to enter the workforce and sustain work, due to observed pain symptoms. Mr Chamma is currently job seeking for cashier positions.”

89 The second trial in the Star shop at the Caltex Service Station occurred in April 2007. For most of the time, he stacked shelves and refrigerators but he was, for short periods over a few days, given the opportunity to work as a cashier. He worked altogether 3 days a week, 5 hours a day for about 6 weeks. During this period he said that he had some time off because of pain in his back and leg. He said that he enjoyed the work but while working as a cashier needed someone overseeing him. He served some customers during quiet periods and was able to sit down when experiencing pain. He gave this evidence to Mr Semmler:

“Q. How bad was the pain?
A. Do you want me to give you a number?

Q. Please.
A. Probably about a five.

Q. Did you take the money and the credit cards from the customer?
A. Yes, I did.

Q. How did you cope with handing out the change and swiping the credit card and so on?
A. I did a few mistakes. Couldn't do all the credit cards.

Q. Why not?
A. Because I couldn't remember how to do them exactly.

Q. Why not?
A. Forgot how to do them.

Q. Didn't you have someone there sitting with you?
A. Yes. That's when he came in and took over.

Q. What are you like generally with figures?
A. Before the accident?

Q. Yes.
A. No problems.

Q. Was mathematics your strong suit in year 10?
A. Not very strong, but it was okay.

Q. How did your arm respond to the work that you were required to do?
A. I suffered a lot of pain in my elbow and my wrist.

Q. Could you sit down when you were doing the cashier's work?
A. Not at the time I was serving, no.”

90 He asserted that his trial as a cashier was delayed because he did not have a white shirt, a curious situation to which I will return. After 6 weeks when the trial ended he was not offered a position and this disappointed him.

91 Despite many disappointments, as I have indicated, he has continued to attend the job club at Active twice a week and to make, so far, unsuccessful job applications. Unfortunately, his computer skills, despite temporal opportunities to improve them, remain limited and he can still only type with one finger. He said that sitting at a computer, as stated earlier, for more than a short period is productive of headaches.

92 Away from the job club, the Plaintiff said that he looks in local papers for suitable job opportunities. He has had some responses to his applications but nothing has led to a job offer. He has, as I understand his evidence, usually disclosed his injured state, which has likely been unhelpful to success but nevertheless, probably inevitable, given that the scar on his head and the disability in his right arm are quite obvious.

93 He explained his reaction to his failures to obtain employment:

“A. They have affected me in a big way to my future. Just makes me see there is no hope for my future. I have been trying so hard to find a job. Just because of my injuries, no-one wants to employ me. It's pretty hard. “

94 He outlined the restrictions which he saw as affecting his employability as including, inability to lift heavy items; inability to stand or sit for lengthy periods; inability to kneel, squat of bend; inability to drive a motor vehicle for a lengthy time; difficulty walking on uneven ground; inability to climb ladders; and fear of working at a height.

95 As to other problems which the Plaintiff claims are causally connected to the accident, he listed short term forgetfulness; inability to concentrate for any length of time; nightmares and intrusive thoughts about the accident; enhanced startle response; a feeling of depression resulting from his changed lifestyle; thoughts of suicide; the fact that he is easily annoyed or irritated; the fact that he has changed from a happy person to one who lacks animation and is “full of anger” and “upsetting thoughts”; the impact upon his relationship, both sexual and otherwise, with his wife; and what he sees generally as a bleak future.

96 He said that Mr Herrera is attempting to address some of these problems, including his short-term memory difficulties and is also encouraging him to resume a social life. According to the Plaintiff, he became withdrawn after the accident and lost a lot of friends.

97 He claims lack of concentration manifests itself in his inability to follow films and television programs and even such things as games of football. He said that he spends his days mostly at the job club, at home looking for job opportunities, attending medical appointments and undergoing physiotherapy, all of which he finds, ”not satisfying at all”.

98 Sometimes he goes fishing, but he has been unable to return to social football, nor has he been able to do other than limited exercises at a gymnasium, “no weights like I used to do”. About once a week, he visits a friend at Minto, about which I will make later reference.

99 As to his sexual relationship with his wife, he said he has lost a lot of his libido and, in addition (or more probably because) sexual intercourse causes him pain. This coupled with his anger and general irritation or moodiness has caused strains in the marriage. Sometimes, after arguing with his wife, he leaves home and spends some hours away “to cool down”.

100 He summarised the change in his life a the conclusion of his examination in chief:

“Q. Just finally, Mr Chamma, how would you compare your life now to what it was like the day before this accident?
A. Do you want a number scale from one to ten?

Q. Yes. Depends on what the scale is.
A. One being the lowest?

Q. Yes.
A. One.

Q. How was it the day before your accident, your life?
A. Possibly a nine or a ten. I had ambitions, I had things that - goals that I was trying to get to and investments, investments to get in and just things like that, but now it's just all shattered. “

101 The Plaintiff was searchingly and comprehensively cross-examined by both Mr Jones and Mr O’Dowd. Mr Jones commenced by taking the witness’s acquiescence to the proposition that at nearly 3 pm on the second day of the trial, he had been in the witness box since 11 am the previous day. The Plaintiff agreed that the only time he had stretched his limbs was as the cross-examination commenced. He also agreed that during the course of his evidence, he had been able to remember recent events as well as events which occurred some time ago. He explained that his short term memory problem relates to minor things such as whether he has locked his car:

102 He told Mr Jones that before the accident his normal weekday working hours were 7am to 3pm. Once or twice a week he worked overtime, not finishing until 4pm or 5pm. He also worked on Saturdays, either from 8am to 1pm or 7am to 3pm. In order to start work at 7am, normally he had to leave home about 6.20am or earlier depending on the location of the job. He denied to Mr Jones that given his work commitments, weekend sport, regular gymnasium workouts and time spent with Sharmaine and other social activities, he had exaggerated the extent to which he assisted his parents before the accident in, performing domestic chores and providing other household assistance. He said that he could not remember telling an occupational therapist at St George Hospital in July 2004 that his mother did all the cooking, cleaning, laundry and shopping. He conceded, however, that she did most of it, with his help. He agreed that before the accident his mother and father looked after the garden but said that he mowed the lawns.

103 As to the accident, itself, the Plaintiff agreed with Mr Jones that he was at first reluctant to work on the balcony because he regarded it as dangerous. He said that he felt pressured to do the job, as I understand his evidence, both by Mr Boswell and by his own employer, Mr Ibrahim.

104 The Plaintiff conceded that he did not mention his conversation with Mr Boswell when on 22 September 2004 he gave an account of the accident to a WorkCover Inspector. He explained, in effect, that he was not asked about such details. There was this exchange:

“Q. If indeed you had been told by Mr Boswell to go up and work on the eaves this day and you had been ordered to do a job that you weren't happy about doing, here was your perfect chance to bring this to the attention of the very inspectors that were investigating this accident, that's right isn't it?
A. Yes, but like I said, he wasn't, didn't want me to get into the story. He didn't ask me who I spoke to when I arrived there and who I spoke to and why I had to finish this job. He didn't ask me those kind of questions.

Q. He asked you the events leading up to and at the time of the accident occurring?
A. That is correct.

Q. That was your perfect opportunity to tell those investigating this accident about Mr Boswell speaking to you and ordering you up to do the eaves that day?
A. At the time he had seen me, I'd just come out of hospital as well, so I was still a bit grogged up and not feeling too well, so.

Q. At no stage did you say to the investigators: Look, I have just come out of hospital. I am a bit grogged up and I can't really recall things, did you?
A. No, I didn't say that, no.

Q. You had enough recall to speak to them about the person working on the fascia?
A. Yes.

Q. You had enough recall about Mr Ibrahim telling you to do the job, didn't you?
A. Yes.

Q. Do you say you just simply forgot to tell them about the conversation and the orders from Mr Boswell that day?
A. Not forgot, but if I'd been asked, I would have told them.

Q. Well, they did ask you, didn't they, to the extent they asked you to tell them about the events leading up to the accident?
A. Okay, but what I felt was comfortable was just like to tell them briefly how the accident happened. I didn't get fully into it.

Q. They did ask you when they asked you who instructed or directed you to carry out the task?
A. I was referring to my boss Charlie who sent me there.

Q. Can I suggest this to you, that you have made up this account of Mr Boswell speaking to you and ordering you to go up and do the work on the eaves this day? You have made it up, haven't you?
A. No, I haven't. I've got witnesses as well.”

105 Mr Jones cross-examined the Plaintiff on his TAFE record and suggested that he had failed or withdrawn from a number of courses. He accepted the accuracy of the records and that sometimes he had trouble passing subjects but said:

“I'm not going to say I was the smartest one in the class but I was working my way through it and I was trying by best.”

106 Cross-examined about the stability of the ladder from which he fell, the Plaintiff said, in effect, that he was aware of the dangers of a ladder toppling and of the desirability of a stepladder being held. He said that at his request, Mr Sarkis had held the ladder at some stage while he was on it, but was away cutting a piece of timber when he actually fell. He indicated that he did not apply his mind to the possibility of tying the ladder in some way to the wall of the building.

107 As to his short term memory, the Plaintiff agreed with Mr Jones that in March 2005, he told Dr Fearnside at Westmead Hospital that his memory was quite good:

“A. Yeah. Like I said before, I didn't have a major issue with my memory. It's just the little facts I forgot, yes.

Q. Is it the situation that your memory remains quite good?
A. Yes, it's pretty much come back to me, yeah.

Q. And did you tell him that you didn't feel that there was any impairment or problem of your activities with daily living with regard to your memory?
A. Probably at that time, yes, I did say that.

Q. I think you told him that on occasions you might forget if you'd locked your car or not, but otherwise you didn't feel there was any impairment or problems of your activities with daily living with regard to your memory?
A. Yeah, at that time it was probably right, yes.

Q. Well, that remains the situation, doesn't it?
A. Beg your pardon?

Q. That remains the situation? In other words, as the position was in March 2005, some nine months after your accident, namely, you didn't feel there was any impairment of your activities with daily living with regard to your memory but on occasions you might forget if you'd locked your car or not, that remains the situation, doesn't it?
A. Now?

Q. Yes?
A. Like I said, as I got out there and started doing more kinds of stuff, yes, I noticed some stuff, yes.”

108 In March 2005, the Plaintiff told Mr Jones that he was contemplating undertaking a TAFE computer course. He made some enquiries but did not pursue the matter.

109 It emerged from Mr Jones’ cross-examination that, from at least June 2005, the Plaintiff was driving himself quite long distances to medical appointments in unfamiliar locations. In that month he drove from Bonnyrigg to Maroubra Junction to see Dr Athanasou, a drive one way of about 45 minutes. He agreed that he would have had to locate Dr Athanasou’s address with the aid of a street directory. He added “I usually got lost going to doctors”. He agreed that by the time he saw Dr Athanasou he could use the Internet, email, a word processor, and other office equipment. He also agreed that he expressed to Dr Athanasou a wish to return to the workforce. There was this exchange with Mr Jones:

“Q. Are you interested in perhaps doing a course to see if you could pick up some further skills and get back into the workforce?
A. Yes, I am. It's just my concentration and my disability about doing that side of the - kind of work is - keeps holding me back.

Q. Well, your concentration in the last few days in Court has been pretty good, hasn't it?
A. Yes, it has. I've been trying my best and I've been suffering from headaches.

Q. Well, surely in your course with something as important as getting back to work you would be trying your best too, wouldn't you?
A. Yes, that's right. That's why I try my best to get a job at the moment.

Q. Well, if you are trying your best to get a job at the moment might it improve your chances if indeed you underwent a course?
A. Well, that's the thing. I'm looking for a cashier job, it's not that I need to do a course to get a job, to get that job as to my understanding.

Q. Well, what happened such that two years ago you were interested in doing a course such as a computer course or can I suggest to you to Dr Athanasou a course associated with building or architectural field at TAFE, what's happened such that two years ago you were interested in doing that and now you are not interested in doing it?
A. Just pretty much the way I've been feeling. My moods, my mentally wise, just the way I've been - my depression.

Q. Well, it wouldn't be a situation, Mr Chamma, of perhaps putting off those courses until after the conclusion of this case?
A. No, no.

Q. That's not a decision that you have made?
A. No, it hasn't, no.

Q. Well, people have recommended to you that you perhaps undertake some courses, haven't they?
A. Oh, yes, they have. “

110 It was suggested to the Plaintiff that he is capable of clerical work:

“Q. Well, in those circumstances wouldn't it be possible to do the sort of work I was just suggesting where you were seated, you could move, straighten your right leg as you needed to, as you have done in the witness box. If you needed to get up you could get up from your seat for some time and then sit back down. We know your writing is okay. We know that you can use a computer.
A. Yep.

Q. Wouldn't it possible for you to do that sort of job?
A. It could be possible. I am just saying, like, me being a person, like, being out doors and doing things keep me, keep my mind busy kind of thing. I am not saying it can't be possible at all.

Q. And in terms of yourself as an individual you have been here for a few days and would it be correct to describe you as a personable sort of person, that is someone that can relate to other people. You can relate and deal with other people, you have some person to person skills, don't you?
A. Yes, I am not saying I am completely disabled and I can still communicate and talk to people, yes.

Q. You are not an unlikable person are you?
A. What do you mean by that?

HIS HONOUR: Might be for somebody else to make that assessment.

SEMMLER: We concede he is not unlikable, your Honour.

JONES

Q. You are a person that can deal with other people, that's what I am putting to you?
A. Yes, like I said I can. Like I said before I get my moods, I get my ups and downs, yes, I am not saying I can't. I am saying, yes, I can.

Q. For instance, if you were in a customer service position where people came and spoke to you about matters that needed some service or attention and you might have to refer them on to others or something of that nature, once again if you are in a position where you were seated, where you could stretch out your right leg or occasionally you could get up, you would be able to do that, wouldn't you?
A. Um, like I said to you, I am not saying I can't. But what through my past experience I have been trying to get a job and no one has allowed me to do that kind of stuff. No one said I can do that kind of stuff. Even the work trial they didn't allow me sitting behind the register and things like that. I am not saying it is impossible, it is hard to find someone to give me that kind of job, do those kinds of things.”

111 He also agreed with Mr Jones that he would be capable of performing simple factory processing work. Indeed, he admitted to Mr Jones that on occasions while driving a car he is able to take a call on his mobile telephone, held in his left hand, while at the same time continuing to steer with his right hand, as the transcript records:

“Q. See, it would be wrong to suggest, would it not, that your right arm, or hand, and your left wrist, or hand, were such that, really, you had great difficulty doing tasks with either hand, or arm; that would be a wrong suggestion, would it not?
A. Yes, it will be, your Honour. I am not saying that I can't use my hands, or I do not use my hands. I am not suggesting that at all. There is lots of things I try to do, and probably one of them is trying to drive, trying to use the mobile. There is a lot of things. “

456 The Plaintiff’s evidence was that at the date of the accident he was earning $956 per week gross, which represents, according to Mr Neilson, approximately $725 net of income tax.

457 I am not prepared to find on the evidence that the Plaintiff would by now have become a project builder. I do accept, on the balance of probabilities however, that sometime in the period since the accident he would have become a contract carpenter, working on his own account.

458 In light of the evidence of Mr Sarkis Ibrahim as to his income in 2007, the absence of any records of the earning of comparable employees produced by Chubs despite a subpoena requiring such production, and other evidence of the earnings of carpenters, including the evidence of his brother Michael and the expert evidence of Mr Stinson, I think it would be reasonable to assume that but for the accident, the Plaintiff over the period since 18 June 2004, would have averaged a net income loss of $850 per week. On that basis his loss to 1 March this year is $164,050. I am satisfied that for the whole of that period the Plaintiff has been wholly incapacitated by the accident from earning income.

LOST SUPERANNUATION BENEFITS:

459 The Plaintiff is entitled to lost superannuation on past earnings. It is impossible to be precise for reasons which include the fact that during the period, as I have found, the probability is that he would have become self employed and responsible for his own superannuation. Doing the best I can, I allow $13,000.

LOSS OF FUTURE INCOME EARNING CAPACITY:

460 Although evidence in the trial to which I have referred was to the effect that the Plaintiff has a residual income earning capacity, the evidence also indicated that his present physical limitations are unlikely to improve, that the prognosis for his mental illness is, to say the least, guarded and that despite very considerable professional assistance by Active, he has been unable to find employment. I am satisfied that before the accident, he was highly motivated towards his career as a carpenter and in the building industry and that he was a willing and competent worker. I am also satisfied that he is anxious to return to the work force, although his motivation is probably affected by mental illness. For the purposes of s13 of the Civil Liability Act, I make the findings or assumptions that, but for the accident, the Plaintiff would have worked as a carpenter or otherwise in the building industry until retirement at age 65, and that he is permanently incapacitated from pursuing that occupation. On the other hand, Mr Jones submitted that the Plaintiff has a significant residual earning capacity in some other field, which he quantified at a little over 40%. He referred to expressions of opinion by medical experts, including Dr Mills. However, Dr Mills himself listed a number of restrictions which he regarded as appropriate and which, by their nature, I think, cast considerable doubt upon his optimistic outlook. Mr Semmler submitted that I should find that the Plaintiff is, in effect, unemployable on the open market. In all the circumstances, I think a realistic assessment of the Plaintiff’s residual earning capacity is 20%.

461 I do not think the evidence is sufficient to warrant a conclusion that the Plaintiff, despite his stated ambition, would have become a successful self-employed builder. However, as indicated, I am satisfied he had aptitude as a carpenter and that sometime, between 1 January 2005 and the date of this judgment, he would have become self-employed as such. Having regard to the evidence referred to in paragraph 458 above, I think it reasonable to base a calculation of his loss upon the sum of $1300 per week reduced by 20% to $1040. Applying 5% tables to that loss for the period until 9 January 2048 when he attains 65, using a multiplier of 894.4 produces $930.176.

462 There should be a deduction for vicissitudes which Mr Jones submitted, having regard to the vagaries of the building industry, should be 20%. However, while that is true and there are periods of recession, there are also periods of boom, I see no reason why the normal deduction of 15% should not be applied. On that basis I would award $790,650 compensation for future diminished earning capacity.

INTEREST:

463 Interest is payable in accordance with s18 of the Civil Liability Act on the allowance for past economic loss, less the reimbursable payments made to the Plaintiff. I am unable to calculate the figure accurately from the evidence but doing the best I can, I allow $10,000. The parties will be given leave to apply in respect of the adjustment of this figure.

PAST GRATUITOUS SERVICES:

464 I was informed that the parties have agreed upon the amount claimed by the Plaintiff viz $37,014.

FUTURE DOMESTIC SERVICES:

465 There was a large measure of disagreement between the parties on this issue. I am satisfied that the Plaintiff to a greater extent than his siblings contributed to household chores both inside and outside when he was living with his parents before the accident. However, at least in the period immediately before the accident the other demands upon his time suggest that his recollection as to what he actually did is somewhat exaggerated.

466 However, its importance is that I accept his evidence that he and Sharmaine intended to share the household chores between them and that he would have played his part of the bargain. To a significant extent he is now unable to perform his share.

467 I am not persuaded that the Plaintiff needs anything like the 10 hours per week domestic assistance claimed. He lives in a small unit with a small garden. In my view, he is physically capable of performing some household chores which he apparently does not now attempt, particularly if he paces himself and uses appropriately designed implements. It would, however, I think be reasonable to allow a degree of paid domestic and garden assistance which he seems likely to require for the rest of his life. I would allow 3 hours per week at the hourly rate of $35, suggested by Mr Semmler. On the basis that he has a life expectancy of a further 61 years, the amount I award is $100,957.

HOME MODIFICATION:

468 Evidence was given as to the cost of modifying the Plaintiff’s present home to meet his accident caused requirements. As the home is rented, it seems more likely that the Plaintiff will buy a new home and modify it. The cost quoted by Mr Strachan for the present house seemed somewhat excessive in the light of the cross-examination. I would allow, $10,000 for necessary modifications, which seems to be within the general range suggested by Mr Strachan.

FUTURE MEDICAL TREATMENT and MEDICATION:

469 There was evidence that presently the Plaintiff pays about $30 per week for prescribed medication and Panadol. The prescribed medication comprises Cipramil, Epilim, Oxycontin and Stilnox.

470 Mr Semmler submitted that a sum should be allowed for the rest of the Plaintiff’s life while Mr Jones submitted that the allowance should be for 10 years only. There seems to me no particular reason for restricting the Plaintiff’s need to 10 years, but I think it reasonable to discount appreciably the sum of $30,660 claimed to $20,000. The Plaintiff’s claim of 4 visits per annum to a general practitioner was accepted by Mr Jones and $4,212 should be allowed.

471 The Plaintiff claims one orthopaedic attendance per annum for his elbow and one for his knee at a total cost of $132 per annum. There was no evidence that he has been regularly consulting an orthopaedic surgeon, and I accept Mr Jones submission that one visit per annum would be reasonable. I allow $1,289.

472 In relation to psychiatric treatment, Mr Semmler submitted:

“There is abundant evidence in this case that the plaintiff will require an enormous amount of psychiatric assistance and support, not only to maintain his current diminished level of functioning, but also to treat deterioration in his mood, which may well occur because of the likelihood of long term unemployment and the real possibility that his wife may leave him.”

473 A claim was made for regular psychiatric consultations as recommended by both Dr Tint Way and Dr Jungfer, for the rest of the Plaintiff’s life. A costing of Dr Jungfer’s recommendation is $40,190 and of Dr Way’s $51,125.

474 Mr Jones submitted that the Plaintiff did not consult Dr Way until March 2007 and thereafter on an irregular basis. He proposed a global allowance of $5,000.

475 I agree that there should be an allowance for future psychiatric treatment, but I think it unreal to do so on the basis that the Plaintiff will continue to have treatment for the rest of his life expectancy, a period of more than 60 years. I allow $15,000.

476 The Plaintiff has been consulting Mr Herrera on a regular basis but his evidence was that the Plaintiff will only need therapy for another 6 to 8 months following the termination of the litigation. I agree with Mr Jones that some such limitation should be placed on the claim. The present cost per visit is $192. I will allow for 20 visits, namely $3,840.

477 Dr Buckley suggested that osteoarthritic changes in the Plaintiff’s knee will ultimately bring him to knee surgery. I think this prospect is more than speculative and, moreover, the multiplicity of the Plaintiff’s orthopaedic and other injuries persuades me that on the probabilities, he is likely to require further surgery at least once. I would allow $25,000 against the possibility of future surgical intervention.

478 Dr Eikens suggested that because of the medication he ingests, the Plaintiff should consult a gastroenterologist from time to time. On the basis of one consultation a year $3, 907 was claimed. Mr Jones pointed out that the Plaintiff has never seen a gastroenterologist but I think a small allowance is reasonable. I allow $2,000.

479 In light of my assessment that the Plaintiff has residual income earning capacity, there should be an allowance as sought by Mr Semmler for vocational rehabilitation. I would allow $5,000 as claimed.

480 Dr Jungfer suggested that the Plaintiff would benefit from attending a pain management course costed at between $7,000 and $8,000. Pain is clearly, in my view, one of the Plaintiff’s main problems and I think it would be beneficial for him to attend such a course. Mr Jones suggested instead that the “land based psychology/counselling course” suggested by Dr Mills would be more appropriate. Dr Mills did not accept that the Plaintiff suffered chronic pain.

481 In my opinion, the Plaintiff does suffer chronic pain and I do not accept Dr Mills’ opinion to the contrary. I think some allowance for pain management should be allowed, although the Plaintiff himself did not give firm evidence on the subject. I would award $5,000.

482 Regular blood test were suggested by Dr Tint Way to monitor liver functioning, having regard to the medication which the Plaintiff takes. A relatively modest amount of $8,240 is claimed. I think it is reasonable to make some allowance but there should be a substantial discount as the Plaintiff has not been having regular blood tests and may well decide not to have them on a regular basis in the future. I would allow $2,000

483 There is a claim for future physiotherapy. The Plaintiff presently attends twice a week to participate in a gymnasium program and hydrotherapy. The cost has been about $100 per week. The Plaintiff accepted that he is unlikely to continue the program for the rest of his life and it was suggested by Mr Semmler that an allowance of $20,000 would be reasonable.

484 In his evidence the Plaintiff doubted that the physiotherapy was helping him but, nonetheless, said he would continue the program arranged and would follow medical advice.

485 There should, I think, be some allowance for future physiotherapy but a relatively small one having regard to the Plaintiff’s attitude. I would allow $5,000.

486 Finally there was a claim by the Plaintiff for future travel expenses. I agree with Mr Semmler that the Plaintiff will be put to expense potentially over the rest of his life in travelling to medical appointments, health professionals for treatment etc. I think the sum of $5,000 suggested is reasonable and I allow it.

487 In the result, therefore, I award a total of $93,341 for future out of pocket expenses and medication etc.

EQUIPMENT COSTS:

488 This subject was dealt with in the reports of Ms Walcot and Ms Sandford and has been partly dealt with under the heading of Home Modification above. In my assessment, the Plaintiff does not need and it would be unreasonable to require Soliman to pay for many of the items suggested by Ms Walcot and Ms Sandford. However, I agree with Mr Semmler that the need for a number of the items was established. I would allow from Ms Walcot’s report for a handheld shower hose, $70, an adjustable height shower stool $119, a long handled sponge $42, a long handled toe wiper, $27, a long handled shoe horn $8, a dressing stick $48, a laundry trolley $40, cook set $299, travel iron, $59, Homecraft cooking basket $85, long handled dustpan and brush $23, battery powered upright vacuum cleaner $129, peg less clothes line $20, kettle tipper $64, Etac relieve knife – smooth $49, Etac relieve knife serrated $49, Y peeler $10 Seiger can opener $69, and Dycem jar opener $149, Therapod height adjustable posture chair, $920, car accessories $1,000, and car seat insert $135. These items total $3,414. However, he will no doubt over the years identify other items which will assist his living requirements and have some causal relationship to the accident. I would allow a further $3,800 making in all an allowance for equipment of $7,214, which I round up to $7,250.

Non Economic Loss . . . . $331,500
Past out of Pocket Expenses . . . $178,136
“Fox v Wood” Allowance . . . . $ 11, 940
Past Economic Loss . . . . $164,050
Loss of Past Superannuation . . $ 13,000
Compensation Future Diminished
Earning Capacity . . . . . $790,650
Interest on Past Economic Loss . . . $ 10,000
Past Gratuitous Services . . . $ 37,014
Future Domestic Assistance . . . $100,957
House Modification . . . . . $ 10,000
Future Medical Treatment and Medication etc. . $ 93,341
Equipment . . . . . . $ 7,250

TOTAL:. . . . . . . $1,747,838

489 In accordance with my finding of contributory negligence, the above damages should be reduced by 10% to $1,573,054.

DAMAGES AGAINST CHUBS:

490 By virtue of section 151 G of the Workers Compensation Act, in his action against Chubs, the Plaintiff is only entitled to damages in respect of past and future economic loss which in this case are constituted as follows:

Past Economic Loss . . . . . $164,050
Interest on Past Loss . . . . . $ 10,000
Superannuation Loss . . . . . $ 13,000
“Fox v Wood” component . . . . $ 11,940
Future Economic Loss . . . . . $790,650
TOTAL . . . . . . $989,640

That sum would also be reduced by 10% for contributory negligence to $890,676.

CONCLUSION and ORDERS:

491 It follows from my findings that the Plaintiff is entitled to a verdict against Chubs for $890,676 less the payments it has made under the Workers Compensation Act as pleaded in paragraph 10 of its Defence.

492 Damages have been assessed against Soliman in the sum of $1,573,054 but those damages are to be reduced in accordance with s151 Z (2) (c) of the Workers Compensation Act. On the basis of my apportionment of liability as to 75% to Soliman and 25 % to Chubs. Soliman would be entitled to contribution from Chubs but for the provisions of Part 5 of the Workers Compensation Act in the sum of $393,263. However, for the purposes of s151 Z (2)(c), I must also calculate the amount of contribution to which Soliman is actually entitled, namely, in accordance with s151 Z (2)(d), “as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages”.

493 Soliman’s actual entitlement to contribution is therefore 25% of $890,676 viz $222,669. In accordance with s151 Z (2)(c) and authorities upon it, the Plaintiff’s damages against Soliman must be reduced by the difference between $393,263 and $222,690 viz $170,594 to the sum of $1,402,460 (See e.g. Leonard v Smith (1992) 27 NSWLR 5 and Goljak v Trivan Pty Ltd (1994) 35 NSWLR 82).

494 Contrary to what seems to be suggested in Mr Jones’ written submissions, the Plaintiff is entitled to a verdict for the full amount of the damages awarded against each defendant (Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203).

495 There should be a verdict against Soliman for $1,402,460 and a verdict against Chubs for $890,676, less the total of the payments made by it under the Workers Compensation Act.

496 On its Cross Claim, or pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946 Soliman is entitled to a verdict against Chubs for $222,669. Its Cross Claim against Atra should be dismissed with no order as to costs.

497 Soliman and Chubs should be ordered to pay the Plaintiff's costs. I would declare that as between themselves the costs should be borne as to 75% by Soliman and 25% by Chubs.

498 My provisional view is that there should be no order as to the costs of the cross claim by Soliman against Chubs, but I will reserve the question for further argument if the parties are so minded.

499 The only order I make now is that the matter stand over until Monday 10 March at 9.30 am. I invite the parties to agree in the meantime on minutes of order which reflect these reasons.

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