Sampson v Prest and O'Connor Pty Ltd

[2004] NSWSC 318

CITATION:	Sampson v Prest & O'Connor Pty Ltd & Anor [2004] NSWSC 318
HEARING DATE(S):	5-8, 14 April 2004
JUDGMENT DATE:	23 April 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	Counsel are to bring in a short minute of quantified findings and of order as to verdicts and judgments.
CATCHWORDS:	Negligence - employer's liability - occupier's liability - no question of principle
PARTIES :	Errol Clyde Sampson Prest & O'Connor Pty Ltd A J Lucas Networks Ltd & Downer Construction (Australia) Pty Ltd t/a Lucas Downer Joint Venture
FILE NUMBER(S):	SC 20015/02
COUNSEL:	Mr W P Kearns SC with Mr R Foord for the Plaintiff Mr P R Arden SC with Mr P N Khandhar for the First Defendant Mr A P Coleman with Mr D M Jay for the Second Defendant
SOLICITORS:	Kingston Swift Solicitors for the Plaintiff Turkslegal Solicitors for the First Defendant Hunt & Hunt Lawyers for the Second Defendant

- 29 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Friday, 23 April 2004

20015/02 Errol Clyde Sampson v Prest & O’Connor Pty Ltd & Anor

Judgment (No. 2)

1 His Honour: The plaintiff, Errol Clyde Sampson, sues the first defendant, Prest and O’Connor Pty Limited, and the second defendant, A J Lucas Networks Limited and Downer Construction (Australia) Pty Limited trading as Lucas Downer Joint Venture, for damages for personal injury received by him on 12 November 1999. The injury was received at Dubbo in the course of the plaintiff’s employment with the first defendant. The plaintiff was, at the time, on the premises of the second defendant in Dubbo.

2 Both defendants asserted contributory negligence on the part of the plaintiff. The defendants also cross-claimed against each other claiming indemnity or contribution, but there was no claim made at the trial for a contractual indemnity.

3 On 8 April 2004, I gave my decision that the first defendant was liable, that the second defendant was not, and that the plaintiff was not guilty of contributory negligence. My reasons follow.

Incontrovertible facts

4 The first defendant had been engaged by the second defendant to lay underground telecommunication cables at the Richmond Estate, a new housing development in Dubbo. The work included the installation of pits of varying sizes. Materials for the work were supplied by the second defendant and distributed from its depot at Dubbo where the plaintiff’s injury occurred.

5 The plaintiff was classified and paid as a leading hand, but worked as a labourer and gofer under another leading hand from time to time, as was the situation in relation to the Richmond Estate contract.

6 On 12 November 1999, the plaintiff was working as a labourer and gofer with a small team under a leading hand, Mr J Hogan. He was sent with a fellow worker, Mr A Mackie, to collect a pit from the second defendant’s depot.

7 The pit was variously referred to as an L9 or a P9 pit. I will refer to it as a #9 pit. The pit can best be described as a large plastic tub, with a length and breadth approximating that of a domestic bathtub, but deeper. At the top of the pit, the edges folded back, forming a flange about 1” wide around the top edge of the pit. The weight of the pit is not critical, but appears to have been in the order of 35kg.

8 When the plaintiff and Mr Mackie arrived at the second defendant’s depot, there was only one #9 pit there that the plaintiff could see. Possibly, it was the only #9 pit there, at all. It was located on top of a pallet of other pits stacked against a wall. There was a pallet of smaller pits in front. Pits were also stacked, two pallet loads high, on either side. The smaller pits had a narrow flange edge, similar to that on the #9 pits.

9 The only way to access the #9 pit manually was to clamber onto the smaller pits in front of the #9 pit. That involved standing on the edges of the smaller pits.

10 The plaintiff and Mr Mackie proceeded to remove the #9 pit in this way. They clambered onto the pits in front of the #9 pit, standing on the edges of them. They commenced to drag the #9 pit forward. While doing so, the plaintiff slipped from the edge of the pit on which he was standing. His left leg went down into the pit. He fell backwards, ending up with his right leg and body hanging outside the pit, nearly touching the ground.

11 The plaintiff felt immediate pain in his back and left buttock. He walked around for a bit. He was limping.

12 Mr Mackie succeeded in removing the #9 pit from the stack on his own and loaded it onto the truck. The two men returned to the Richmond Estate where the plaintiff reported the accident to Mr Hogan.

13 The foregoing account of events was either common ground at the hearing or so plain as not to be contestable.

Further evidence in relation to liability

14 The second defendant employed a number of people at the depot. One of them was Mr R J Dunn, known as Tiny. He was, in effect, the second defendant’s storeman.

15 The plaintiff said that, until a couple of weeks before the accident, the system for collection of materials was as follows. He was given a piece of paper by his leading hand on which the materials required were recorded. He gave that to Mr Dunn. Mr Dunn would then walk around the depot with them, pointing out the materials to be collected. The plaintiff and his fellow worker would then put the materials onto their vehicle.

16 The plaintiff said that a couple of weeks before the accident the system for collecting materials changed.

17 A senior employee of the first defendant, Mr D K Gemmill, was in a position of authority, below the directors of the first defendant but above the level of the leading hands. According to the plaintiff, there was a meeting at the first defendant’s work shed at which Mr Gemmill told the plaintiff and other leading hands that, as the plaintiff put it, they were “not allowed to go and torment Tiny any more cause he – virtually he’s got the shits because we’re pulling him away from his work”. The plaintiff went on to say that they were “just to go there, grab the gear and hand the sheet of paper to whoever was in charge of that job site and they hand it in like a stocktake at the end of the week to David Gemmill”. The plaintiff explained that “whoever was in charge of that job” was a reference to the leading hand on the job, such as Mr Hogan in relation to the Richmond Estate contract.

18 I take this to have been an instruction not to inform anyone in the second defendant’s employment that they were there to collect materials when they were taking materials from the depot. They were just to “grab the gear” and the paper work would be fixed up later.

19 After that, according to the plaintiff, he and fellow employees went to the second defendant’s depot from time to time and collected materials. They did not inform anyone on the second defendant’s staff that they were there. They handed the list of materials collected to their leading hand when they returned to the site as Mr Gemmill said they were to do. Conformably, on the occasion of the accident, Mr Dunn was unaware of the plaintiff and Mr Mackie’s presence or of the removal of the #9 pit at that time.

20 There was nothing inherently implausible about the plaintiff’s account of what occurred in these respects. His evidence in that regard was not challenged. Mr Mackie was not called. There was no occasion for the plaintiff to call him as a witness.

21 Mr G A Thornbury was the second defendant’s manager at Dubbo. He said that, at the commencement of operations with the first defendant, he instructed Mr Dunn that no materials were to be removed from the depot without Mr Dunn or himself booking the materials out to the particular project. Mr Thornbury said that he also told Mr Gemmill that the first defendant’s employees were to report to Mr Dunn or himself before any materials were removed and that materials removed from the depot were to be booked out either by Mr Dunn or himself.

22 Mr Thornbury said this is what was then done. If he rather than Mr Dunn signed materials out, he would leave a note on Mr Dunn’s desk so that the materials could be booked by Mr Dunn to the relevant project. Mr Thornbury made clear that, as far as he was concerned, that system did not change at any stage. It did not appear, however, that he was personally involved in these procedures with any frequency.

23 Mr Gemmill was stationed at the second defendant’s depot, in effect to facilitate the operations as between the two defendants. There was more than one contract with the second defendant at various locations in the Dubbo district. He was not continuously at the depot. He was in the field for some of the time.

24 Mr Gemmill’s account of the collection system was scant. He said that he would speak to the man in charge of each job at the end of each day to ascertain any materials required. He would then liaise with Mr Dunn who would ensure that the materials were available for collection as required.

25 No evidence was adduced in chief from Mr Gemmill about what was to happen or what in fact happened when his men came to collect to materials. In particular, he was not asked whether Mr Dunn was to be informed that they were there or as to whether any such arrangement was changed. In cross-examination, he said that he did not know of or did not remember any such arrangements. The following is an extract from his evidence given in that regard in the course of cross-examination by the second defendant’s counsel:

Q. I want to suggest to you that Mr Thornbury told you that when the Prest & O’Connor employees came to the site to collect equipment the system was to be together with Mr Dunn and another Lucas & Downer employee, they would go and collect the equipment that you had arranged to be ready for collection?
A. I don’t know of that, I don’t remember that. [Tr 108]

………

Q. You knew that Prest & O’Connor employees were not to take equipment without first notifying yourself or a Lucas & Downer employee that they were on-site for the purpose of obtaining equipment, did you not?
A. No.
Q. The system was, you say, that the person who took the equipment would report to you that he had taken the equipment?
A. Sometimes that was the case.
Q. How else would you know that the person had taken the equipment?
A. By the leading hand at the end of the day, or it might have been the next morning. [Tr 109]

26 Be that as it may, no evidence was adduced from Mr Gemmill challenging the plaintiff’s account of the instructions allegedly given by Mr Gemmill to the leading hands a couple of weeks before the accident, directing them to collect materials without informing the second defendant’s staff that they were there or what they were taking.

27 Mr Dunn gave evidence. Conformably with Mr Gemmill’s evidence, Mr Dunn said that Mr Gemmill would inform him of what materials were required and when they would be required. Mr Dunn said that he would then ensure that the materials were available for collection. He went on to say that his instructions were that the contractor’s staff were to come to him for the collection of the materials, that he would check off what was taken at that time and would assist to load their vehicle. If he was not available, another employee of the second defendant would attend to the collection and would let him know what had been taken.

28 That was substantially the initial system described by the plaintiff. However, Mr Dunn said that the system did not change at any time. He said he had no recollection of any conversation with Mr Gemmill authorising removal of materials without contacting him. He said he did not tell Mr Gemmill that the first defendant’s employees were not to contact him or to bother him. According to him, things just went on in the same way.

29 The second defendant did not have a forklift. However, according to Mr Dunn’s evidence, which I accept in this respect, a forklift was available on hire at short notice and was hired whenever that was necessary in order to move materials which could not be readily moved by hand.

30 Mr Dunn worked long hours. He found that necessary to get through his work. He worked an extra hour each workday for which he was only sometimes paid. He worked a full weekend every month to carry out stocktaking, for which he was not paid at all. He acknowledged that he was sometimes frustrated when someone came in for materials and the pressure of work was building up. He acknowledged that he needed additional assistance, but he said he accepted the situation because he was grateful to have the job. Mr Dunn said that other employees of the second defendant also worked long hours. Asked whether he apprised Mr Gemmill of his sense of frustration he first said no, but then said he did not remember.

31 It is consistent with Mr Dunn’s evidence that Mr Gemmill may have observed the situation for himself and may, accordingly, have instructed his men not to trouble Mr Dunn or anyone else on the second defendant’s staff in order to relieve the pressure on them.

32 As mentioned above, Mr Dunn said he was unaware, on the occasion of the plaintiff’s injury, that the plaintiff and Mr Mackie were on the premises and that they had removed a #9 pit. He said that somebody had to record the stock going out. But that did not happen on this occasion. That was consistent with the plaintiff’s evidence that, on earlier occasions, no-one on the staff of the second defendant was present when materials were collected by the first defendant during the two weeks before the accident. In that event, Mr Dunn would then have been informed afterwards of what had been collected, presumably by word or note from Mr Gemmill, who came to know of collections made by his own people in the way Mr Gemmill described.

33 A further implication of the plaintiff’s account of events is that Mr Dunn would, at least, have become aware – if he was not overtly complicit in the arrangement – that the first defendant’s employees were collecting materials from the depot without letting him or any of his fellow employees know that they were there and without giving the second defendant the opportunity of supervising the collection of the materials.

34 On the other hand, the mere fact that the pit was collected on the occasion of the plaintiff’s injury does not necessarily imply that anyone on behalf of the second defendant had been notified in advance that a #9 pit was required and would be collected. According to Mr Gemmill and Mr Dunn, advance notice of collections was given through Mr Gemmill. But, for all one knows, Mr Hogan may, on this occasion, have found that he needed the pit at short notice and may have sent the plaintiff and Mr Mackie to collect it without Mr Dunn being informed in advance, through Mr Gemmill, that they were coming for it.

Reconciliation

35 How is this evidence to be reconciled?

36 Allowance has to be made for the fact that the events occurred some four and a half years ago. Memories fade. According to the plaintiff, the new system had been in place for only a couple of weeks prior to the accident.

37 Then there is human nature. If there was a change in the system, that resulted, as I will elaborate, in the injury received by the plaintiff. People remember what it suits them to remember and forget what it suits them to forget. That does not necessarily involve dishonesty. Assuming that Mr Gemmill changed the system to ease the burden on Mr Dunn and his fellow employees, that Mr Dunn thankfully went along with that and that the change of system resulted in injury to the plaintiff, it is understandable that neither Mr Gemmill nor Mr Dunn now remember that such a change in the system occurred.

38 The plaintiff’s account of the change in system was given in a forthright manner. It was not challenged in cross-examination. Indeed, the plaintiff’s credibility and reliability were not challenged in any respect, either in cross-examination or in counsel’s submissions. I do not doubt the veracity of his account and I accept it. That necessarily means that Mr Dunn is understandably mistaken in his recollection of and Mr Gemmill has, understandably, at least an incomplete recollection of events.

First defendant liability,

39 The plaintiff was sent by his leading hand to collect a #9 pit from the second defendant’s depot. It was a cumbersome article. There is no evidence of advance notice to the second defendant. I believe that, if Mr Dunn had been told that the #9 pit was required that day, he would have called for a forklift to get it down and would have had it on the ground ready for collection. I would infer from the fact that it was not ready for collection that there was no such advance notice.

40 The plaintiff was under standing instructions not to trouble employees of the second defendant. He and Mr Mackie were to collect the pit from wherever it happened to be and to do so on their own. The plaintiff attempted to carry out his instructions in the only way that he could. It was risky but that was unavoidable.

41 Counsel for the first defendant submitted that the plaintiff should have used a piece of wire or some other implement to pull the pit forward. There was no evidence that any such implement was available or that it would have worked. The only true alternative was to abandon the assignment and return to the site empty handed. That was not an option because, as the plaintiff disarmingly put it, he “would have got [his] arse chewed off”.

42 A situation where employees of the first defendant were required to collect materials from the second defendant’s depot without ensuring that the materials were safely accessible gave rise to a foreseeable risk of injury.

43 It is more likely than not that the #9 pit was required at short notice on this occasion. Otherwise, Mr Gemmill’s system of providing advance notice (based on the information he received at the end of each day) would have resulted in the pit being ready for collection. Mr Gemmill’s system did not provide for advance notice of materials required at short notice. Then there was the instruction not to trouble the second defendant’s staff. In the result, there was the prospect of a situation arising as occurred on this occasion.

44 There were reasonably practicable means of avoiding that risk, involving no additional expense or inconvenience to the first defendant. Either the first defendant should have had a system for notifying the second defendant whenever materials were required, including materials required at short notice, or the first defendant should not have changed the pre-existing arrangements under which the second defendant’s staff were informed whenever the first defendant’s employees arrived at the depot to collect materials. Both those courses of action by the first defendant would, independently, have avoided the risk, either by ensuring in advance that the required materials would be safely accessible or, alternatively, that any necessary assistance would be provided when the men arrived.

45 The plaintiff’s injury accordingly resulted from the first defendant’s unreasonable failure to take reasonable care to avoid foreseeable risk of injury to the plaintiff.

46 For these reasons, there must be a verdict for the plaintiff against the first defendant.

Second defendant not liable

47 For this purpose, I affirm my finding that Mr Dunn must have been aware, during the two weeks prior to the accident, that materials were being collected by employees of the first defendant without his being informed in advance that the men were there to collect the materials and, accordingly, without the second defendant having the opportunity of ensuring that the materials were safely accessible or of assisting with the collection of the materials.

48 However, it is not established as against the second defendant that it was aware, through Mr Dunn or anyone else, that employees of the first defendant had been instructed not to trouble the second defendant’s employees in relation to the collection of materials.

49 It was one thing for Mr Dunn to know that, contrary to the pre-existing arrangements, the first defendant’s employees had apparently been told that they could collect materials without notifying him in advance and without informing him that they had come to do so. It is quite another thing, however, to say that Mr Dunn must have been aware that the first defendant’s employees had been instructed not to trouble the second defendant’s employees in relation to collection of materials. That was not a necessary inference to be drawn from what was happening to Mr Dunn’s knowledge and there is no evidence that Mr Dunn, or anyone on behalf of the second defendant, was informed of the instructions not to trouble the second defendant’s employees which had been given by Mr Gemmill to his people.

50 There was no negligence in storing the #9 pit where it was. Mr Thornbury said the #9 pits were usually stored at the back because they were rarely required. Mr Dunn had not been notified (as I find) that the item was now required. And he had no reason to think that he would not be asked for assistance if the first defendant’s men came unannounced to collect such an item. I do not doubt that, if he had been informed in advance or asked for assistance later on, he would have ordered in a forklift to assist with the operation.

51 It follows that there was no negligence on the part of the second defendant, through Mr Dunn, in implicitly acceding to a change in the pre-existing system for the collection of materials. His complicity went no further, so far as the evidence establishes, than the second defendant’s employees being free to collect materials without the second defendant being informed that they were coming or that they were there to do so. He had every reason to think that if an article could not be accessed safely he would be told and would have the opportunity of providing the necessary assistance.

52 A case has not been made out against the second defendant.

Contributory negligence

53 As I have said, the plaintiff and Mr Mackie went about the task of implementing their instructions to obtain the pit in the only way that was available to them, having regard to the general instruction that the second defendant’s staff were not to be troubled.

54 The only alternative available to the plaintiff was to abandon the task and return to the site empty-handed. That he chose to run the risk, such as it was, rather than fail to do what he had been instructed to do, was not unreasonable in the circumstances.

Decision on liability and apportionment

55 The plaintiff is entitled to a verdict against the first defendant but fails against the second defendant. There is to be no deduction for contributory negligence. The cross-claims will be dismissed.

The evidence in relation to damages, in summary

56 The plaintiff’s evidence in relation to the causation and quantification of damages consists of his own evidence, that of Mr G J Nolan, an employment co-ordinator with Aboriginal Employment Strategy at Dubbo, and reports by the following persons:

Dr Boa, GP
Dr Stratton, treating orthopaedic specialist
Dr Matthews, x-ray
Dr Slack-Smith, CT scan
Dr Luca, MRI
Dr Harrison, orthopaedic specialist
Dr Darveniza, neurologist
Dr Dinnen, psychiatrist
Dr McEwin, consultant physician and surgeon
Ms White, occupational therapist
Ms Maher, physiotherapist
Ms O’Leary
Ms Davey, rehabilitation consultant.

57 The defendants’ evidence on these issues consisted of reports by the following persons:

Dr Lim, occupational physician
Dr Lovell, psychiatrist
Dr McClure, psychiatrist
Mr J Raue, vocational psychologist
Ms Staracek, occupational therapist

58 None of the foregoing authors were required for cross-examination.

The plaintiff’s evidence on damages and that of treating professionals

59 The plaintiff was born on 26 May 1966. He was 33 at the time of the accident in November 1999 and is now 37.

60 The plaintiff described his performance at school as “average, a bit probably below, not real good”. He left after Year 10 because he “wasn’t real academic”.

61 The plaintiff did labouring work of various kinds in country New South Wales after he left school. At one stage, he started an apprenticeship course at Dubbo TAFE, but he failed computers in his first year. He continued to do labouring work until the accident, apparently without any significant periods of unemployment between jobs.

62 The plaintiff has been in a de facto relationship since 1984. There are three children, presently aged 18, 16 and 4.

63 For some time, the plaintiff has lived with his family in Dubbo.

64 The plaintiff owns his own home in Dubbo and was paying it off at the time of the accident. He mowed the lawns, did the edges, dug flower beds and so on. The lawns required cutting once a week in summer and once a month otherwise. That took about an hour each time.

65 There were two motor cars in the family which he serviced himself every six months, which took half an hour a time. He washed the cars once a week and that took about an hour.

66 He used to do the painting for the house and that took about a week each time.

67 He did his share of the housework, including vacuum cleaning, making beds, cooking and the laundry. That took an hour or two a week.

68 He was keen on sport, playing rugby league (second division), touch football, motorbike riding, tennis, cricket and fishing.

69 He used to collect firewood from a mate’s property once a fortnight during the winter.

70 He had an active and enjoyable sexual relationship with his de facto wife.

71 Immediately following the accident, he continued to do his normal work until December 1999. Until that time he had pain, on getting up, across his back, the top of his buttocks and a shooting pain down his buttock and leg. The pain would go away when he started to work but at the end of the day the pain would come back.

72 He commenced pre-arranged annual leave from early December 1999. At that stage, his back was deteriorating with the pain becoming more severe. While on leave, he did ten days’ work cotton chipping at Narromine with members of his family, using a long-handled hoe. That caused a lot of pain, just walking up and down the rows. The pain was across the top of his buttocks and shooting down the back of his leg to his knee. Most of the work was carried by the members of his family with whom he was doing that work.

73 The plaintiff saw his general practitioner, Dr Boa, on 20 December 1999. By then the pain was bad. He could not sit down comfortably or stand for long. Whenever he sneezed a sharp pain would shoot down the back of his leg.

74 Dr Boa’s reports confirmed that the plaintiff had first consulted him on 20 December 1999 with a history of low back pain since a fall at work, worsening over the ensuing weeks, with radiation into the left buttock and left thigh.

75 Early in 2000, the plaintiff reported to Mr O’Connor, a director of the first defendant. He told him that he was in a lot of pain and would not be able to do the work. He did not resume work.

76 The plaintiff consulted Dr Boa again, who sent him for physiotherapy and radiological investigation. Dr Boa confirmed in his reports that there was little or no improvement with conservative treatment and physiotherapy. A CT scan on 10 February 2000 had revealed a large posterior disc protrusion at the L5 / S1 level. Dr Boa referred the plaintiff to Dr Stratton, orthopaedic surgeon of Dubbo.

77 At that stage, the plaintiff said, he could virtually do nothing. He could not wash himself, dress himself or wipe his bottom on the toilet without causing himself severe pain. Walking, sitting, standing, sneezing and coughing exacerbated the pain. He would nearly fall down with pain if he sneezed. He was unable to bend or lift. Stairs aggravated the pain.

78 The plaintiff was seen by Dr Stratton on 22 February 2000. According to Dr Stratton’s reports the CT scan of 10 February 2000 showed a huge lumbosacral disc prolapse centrally and to the left side with sequestration.

79 On 21 March 2000, Dr Stratton carried out a laminectomy and lumbosacral discectomy. There was intra-operative bleeding. On 22 May 2000, the plaintiff was declared fit by Dr Stratton for selected duties for a two month period. He was to be reviewed on 19 July 2000. A subsequent report by Dr Stratton is referred to in one of the defendants’ medical reports but it was not in evidence before me. Dr Stratton has since died.

80 Following his discharge from hospital, the plaintiff was not able to look after himself completely. He needed assistance in washing, dressing and so on for two to three months. His wife attended to him for about an hour a day. Before the operation he needed similar assistance for about an hour a day for about two weeks.

81 The plaintiff’s wife went back to work about six weeks after his operation although she would otherwise have remained off work until the youngest child went to school. The plaintiff’s mother-in-law then looked after the child while the plaintiff’s wife was at work.

82 According to the plaintiff, the operation gave him some relief. About three months after the operation, the pain in the leg was gone but he still had pain in the back. He was able to get about better. The pain was not as severe. He had been in constant pain before the operation and, while that continued to be the case, the pain was not as bad.

83 The plaintiff said that about 12 months after the operation he started to get worse.

84 The plaintiff received physiotherapy on a number of occasions between March and June 2000. When last reviewed by the physiotherapist on 20 June 2000, the plaintiff reported intermittent left leg pain and lumbar region discomfort and stiffness. He was able to sit for 20 minutes in a chair but only upright on the edge of the chair and was able to walk for 20 minutes.

85 In July 2000, the plaintiff was seen by another physiotherapist, Ms Davey, who practices as a rehabilitation consultant. She specified some limited elements in the plaintiff’s pre-accident work which she designated as proposed suitable duties.

86 The plaintiff resumed work for three or four days at the end of July 2000. This was on restricted duties, sweeping and sorting nuts and bolts. The sweeping aggravated his back. Twisting and reaching to put nuts and bolts in their containers also aggravated his back pain.

87 In January 2001 an MRI was carried out. The findings included epidural fibrosis around the S1 nerve root related to the previous surgery. There was slight enlargement of the left S1 nerve root indicating swelling. Persistent left disc protrusion at L5 / S1 displaced the left S1 nerve root slightly with associated minimal epidural fibrosis related to the left S1 nerve root at the site of the previous laminectomy.

88 The plaintiff’s history of a partial relief of symptoms following the surgery but getting worse again about 12 months after the operation is consistent with the formation of fibrosis as reported on the MRI.

89 Dr Boa saw the plaintiff on three occasions between September and December 2001. He reported that the plaintiff was unable to do any labouring work and got about with difficulty and pain with the aid of a walking stick. The plaintiff was doing back-strengthening exercises at that stage and attending a hydrotherapy pool. The doctor said no other future treatment was advised. He said that counselling and a pain management course might be helpful but that return to the plaintiff’s pre-accident duties was not feasible and that the plaintiff should be re-trained for an occupation of a sedentary nature.

90 No pain management course was in fact arranged. The plaintiff knew of none being available in Dubbo. Dr Boa did not specify the kind of sedentary occupation that he believed the plaintiff might be fit to perform with re-training, nor the kind of re-training that he had in mind.

91 The plaintiff now has constant pain in the back. The more active he is the worse it is. It is aggravated by bending or lifting. He also gets pain in the leg and pain in both feet with further activity. Pain is aggravated by stooping. It is also aggravated by walking; pain in the back is increased by walking a block or two, that is, about 300m.

92 The plaintiff walks with a pronounced limp, using a walking stick which was supplied by one of the doctors.

93 Earlier, he tried a number of medications to relieve the pain but it did not help. He now uses cannabis a couple of times a week to obtain a night’s sleep. Otherwise, he is kept awake by the pain. When he can’t sleep he lies down on a mattress and watches television.

94 While giving his evidence in court, the plaintiff found it necessary to sit and stand alternately. It was apparent that he could not sit comfortably and could not stand comfortably either.

95 The plaintiff said he is now severely limited in the way in which he can play with his daughter.

96 He said that his mood has been up and down. To use his words, he “gets the shits with the pain”. He says he then gets a bit nasty towards his family which causes problems, although that is infrequent. From time to time he goes away for two or three weeks to ease the family situation.

97 The plaintiff said that his sexual relationship with his wife has suffered. He said, “I can’t sort of do the job”.

98 There is a hob to the shower recess at home on which he has nearly tripped a couple of times and which should be removed. Once he is in the shower recess he is not steady and could do with a shower stool.

99 In cross-examination, the plaintiff agreed that he did not intend to stay at home and do nothing for the rest of his life and that he wanted to find something to do as soon as he could. Asked if he intended to seek some sort of re-training once the case was over, he agreed that he did. Asked what he had in mind to do about that, he said, “To be honest with you, I really haven’t got a clue, mate”. Asked if he was going to get some assistance to deal with the pain, he said that Dr Stratton had changed the medication three times and none of that had done anything for him. He said that the only relief he got from the pain was lying down and there was pain when he did that.

100 Asked about using a computer, he said he would not be able to sit at a computer for any length of time.

101 Asked about working as a console operator at a service station, he said he was concerned about crime and that he wouldn’t be able to do anything to protect himself. In re-examination, he said that he would not be able to do the work of stacking shelves and handling cartons of goods as a service station console operator.

102 In cross-examination, he was asked about working as an Aboriginal youth worker. He said he would love to do that and would give it a go. In re-examination he said he did not know anything about what that kind of work would involve.

103 In re-examination, the plaintiff said that he continues to see his general practitioner for certificates for workers’ compensation every three months.

104 In cross-examination, the plaintiff was asked about further surgery. The following is an extract from the evidence in that regard.

Q. Did you know further surgery has been suggested? You understand that, don’t you? Just further surgery been recommended?
A. Been suggested.
Q. Yes, what is your attitude to that?
A. Well, virtually they should have got it right the first time. Like I don’t want to come out in a bloody wheelchair. That’s my thinking of it. At least I can still get around now without depending on something like that. I couldn’t want that. They can’t guarantee me that I won’t.
Q. What if you got worse?
A. Well, if I got worse I’d have the operation.

The evidence of consultants

105 I have dealt with the evidence concerning the plaintiff’s treatment. I will now deal with the expert evidence which has been generated for the purposes of the case in the order in which it has come into existence.

106 Dr Lovell, psychiatrist, examined the plaintiff for the first defendant on 29 January 2001. Dr Lovell said that some vocational training and assistance in terms of pain management would benefit the plaintiff. In Dr Lovell’s opinion the plaintiff probably met the criteria for an adjustment disorder with depressed mood being an emotional response to his current predicament.

107 On 8 August 2001, the plaintiff was examined by Dr Dinnen, psychiatrist, at the request of the plaintiff’s solicitors. He agreed with Dr Lovell’s diagnosis of adjustment disorder with depressed mood. He said that he did not suggest any intensive counselling or psychiatric management at that stage.

108 On 3 September 2001, Mr Raue, vocational psychologist, reported on a vocational assessment of the plaintiff. The report was tendered by the defendant but it is not apparent who procured the report or to whom it was addressed. Mr Raue was of the opinion that certain occupations should be suitable for the plaintiff, based on what he described as “the assessment findings”. It is not apparent what the findings were or who had made them. The occupations specified were courier driver, forklift driver, front-end loader operator, backhoe operator, service station console operator, enquiry clerk, despatch clear, sales assistant, youth worker, teacher’s aide, Aboriginal and Torres Strait Islander education worker, purchasing officer.

109 Dr Lim, consultant occupational physician, first examined the plaintiff for the defendant on 4 September 2001. Dr Lim reported on 10 September 2001 that the plaintiff was not able to resume his pre-injury duties but was fit to undertake work which involved no heavy lifting, lifting from a bent position, prolonged continuous standing (in excess of 30 minutes at a time) or prolonged periods of continuous sitting (for more than an hour at a time). He said that the incident of 12 November 1999 was a substantial contributing factor to the L5 / S1 disc protrusion.

110 Concerning the MRI performed on 11 January 2001, Dr Lim said that the degenerate protruded disc did not appear to be impinging on any nerve roots. That appears to have been contrary to the reading by the radiologist, Dr Lucas, who reported that the S1 nerve root was slightly displaced by the protrusion. Dr Lim did not refer to the further finding by the radiologist of epidural fibrosis around the S1 nerve root or the slight enlargement of the left S1 nerve root indicating swelling. Notwithstanding these findings by the radiologist, Dr Lim said that, although there was ongoing back pain, it was without radiculopathy.

111 Dr Darveniza, neurologist, examined the plaintiff at the request of his solicitors on 12 September 2001. In his opinion, the plaintiff was suffering from work related symptomatic traumatic lumbosacral spondylosis with a left S1 radiculopathy, confirmed on imaging, requiring surgical intervention, leaving the plaintiff physically restricted. The imaging was a reference to the MRI of 11 January 2001 to which I have referred. In the doctor’s opinion the plaintiff was fit for light, sedentary duties in which he was relatively free to move about, but was permanently unfit for heavy duties. Retraining in a sedentary occupation was strongly recommended. The doctor said that, apart from a home-based physical programme, he did not think any other treatments would be helpful. He said there was no doubt about causation relative to the work injury.

112 In his report of 19 October 2001, Dr Lim reviewed Mr Raue’s vocational assessment. Mr Raue had said that, in his opinion, the plaintiff was fit to undertake the duties of courier driver and forklift driver but should avoid the long periods of vibration which would be associated with working as a front-end loader operator or backhoe operator. Dr Lim agreed with that and the vocational assessment that other suitable options were service station console operator, enquiry clerk, despatch clerk and sales assistant, and that the plaintiff was physically able to perform work as a youth worker, teacher’s aide, Aboriginal and Torres Strait Islander education worker and purchasing officer.

113 In May 2001, the plaintiff was examined by Dr J M Harrison, orthopaedic surgeon, at the request of the plaintiff’s solicitors. In Dr Harrison’s opinion, the plaintiff sustained a posterio-lateral disc protrusion at the L5 / S1 level lateralised to the left resulting from injury at work in November 1999. The MRI suggested clinical changes of disc protrusion or re-protrusion and minor compromise at the L5 / S1 nerve root on the left and lateral recesses, raising the question of whether further spinal surgery should be attempted to try and relieve the symptoms in the left leg. The nature of any such further surgery was described and the cost was assessed.

114 In Dr Harrison’s opinion, the plaintiff was unfit for work as a labourer. Courier work might be within his capabilities following any further surgery. He needed to avoid prolonged sitting, standing, repeated bending and heavy lifting and carrying. He needed a job that gave him the option to sit and stand, shift and change position frequently. Light stores work would only be within his capacity if he were helped by further surgery.

115 In his report of 31 May 2001, Dr Harrison, as I have mentioned, posed “the question of whether further surgery should be attempted to try and relieve those leg or radicular symptoms in the left leg”. However, he did not provide an answer to that question in his report. The most he said was that the plaintiff “may well have to contemplate secondary surgery”.

116 Dr Harrison did not say what, in his opinion, were the prospects of a successful result from further surgery or of the plaintiff being no better or even worse off as a result of such surgery.

117 On 15 April 2002, the plaintiff was examined by Dr McEwin at the request of the plaintiff’s solicitors. Dr McEwin is a fellow of the Royal Australasian College of Physicians, the Royal Australian College of Surgeons and the Australian College of Rehabilitation Medicine. In Dr McEwin’s opinion, the plaintiff still had neural pressure on the nerve root at L5 / S1 and fibrosis of that nerve root, causing left sciatica. The condition was due to the work injury.

118 In Dr McEwin’s opinion, further surgery needed to be considered to release the fibrosis which had developed around the S1 nerve root and to remove the protruding L5 / S1 disc. That, he said, was a contentious decision. There was the risk that he might get a poor result from the operation because of the fibrosis. That was because removing fibrosis sometimes induces further fibrosis to occur. Dr McEwin recommended surgery but stressed that in-depth discussion was needed with the operating surgeon concerning the risks.

119 Dr McEwin was of the opinion that the plaintiff was unfit for any work at present. One had to be guarded, he said, in suggesting to the plaintiff that, with further surgery, he might become fit for light duties. Dr McEwin said he did not think the plaintiff would ever be fit for medium or heavy work. He left open the possibility that at some stage in the future the plaintiff might become fit for light work.

120 Ms J White, occupational therapist, made an assessment on 10 October 2002 which was the subject of a report to the plaintiff’s solicitors of 14 November 2002. She assessed the plaintiff’s requirements for personal care, domestic assistance, handyman assistance, equipment, home access and childcare. Following what appears to have been a careful physical assessment of the plaintiff, Ms White was of the opinion that the plaintiff did not have the physical capacity to undertake any sustained paid employment.

121 She thought that, if surgery were undertaken successfully, the plaintiff would then only be able to undertake light work where he could alter his posture frequently. Some storeman jobs might then be suitable. He would not be able to undertake processing work and would be unlikely to be able to work in driving jobs or office jobs. In any event, it was most likely that the plaintiff would only ever be able to work part time, up to four hours per day, four or five days per week, on a sustained basis. He would require formal retraining to obtain the skills for an occupation such as storeman, most likely two years’ part time training at TAFE. In her opinion, the plaintiff’s chances of obtaining employment in the future were minimal even if surgery could reduce his pain levels.

122 On 15 January 2003, Ms S Staracek, occupational therapist, reported to the first defendant. She assessed the plaintiff’s capacity for various daily tasks. In her opinion, the plaintiff required on-going assistance in relation to some of these. Ms Staracek said that the plaintiff’s current vocational potential could not be determined at this assessment. She recommended vocational assessment to explore future vocational options and opportunities for re-deployment and re-training.

123 The plaintiff was re-examined by Dr Lovell, psychiatrist, for the defendant, on 25 February 2003. In Dr Lovell’s opinion, the plaintiff had made good adjustment since the last examination by him. He no longer considered that the plaintiff met the criteria for any psychological condition. No psychiatric intervention or cognitive behaviour treatment was required.

124 The plaintiff was re-examined by Dr McEwin, at the request of his solicitors, on 6 May 2003. The plaintiff told Dr McEwin that most of the doctors he has seen have told him that further operations should not be contemplated as the prospects of success were too small. He had obtained some relief after the operation which was performed but that only lasted a few months. He thought now that his back pain was about the same as it had been before that operation.

125 In Dr McEwin’s opinion, the plaintiff continued to suffer from disc protrusion at L5/S1 with left sciatica. He had gained no relief from surgery and he still had nerve root pressure which was the cause of the sciatica.

126 In Dr McEwin’s opinion, no further progress would be made by conservative treatment. Further surgery could not now be recommended because of the fibrosis surrounding the nerve root with the risk of fibrosis reforming after surgery.

127 In Dr McEwin’s opinion, the plaintiff was permanently unfit for any work. He did not think rehabilitation could successfully lead to re-employment. Dr McEwin specifically disagreed with Dr Lim’s opinion that the plaintiff was fit for limited employment.

128 In his further report of 1 July 2003, Dr McEwin substantially supported the recommendations by the occupational therapist, Ms White, concerning the plaintiff’s need for assistance and equipment of various kinds. He expressed his disagreement with observations by Ms Staracek to the contrary.

129 Dr Lim re-examined the plaintiff for the first defendant on 12 March 2004. In Dr Lim’s opinion the physical signs at the examination indicated that the plaintiff’s symptoms should only cause modest disability compatible with most aspects of normal daily activities, including non-strenuous work duties. In Dr Lim’s opinion, the plaintiff was fit for work which did not involve heavy lifting, strenuous pushing or pulling actions, or prolonged work postures requiring significant bending of the back. Ideally, the plaintiff should be able to alternate between sitting and standing so as to avoid prolonged and continuous spells of either. As a general guide, the plaintiff should not stand for more than 30 minutes at a time and should not sit for more than an hour at a time. Dr Lim said that such restrictions were compatible with the normal duties of a community service worker, shop attendant, customer service officer or petrol station console attendant. In this report Dr Lim went somewhat further than previously in dissociating the plaintiff’s condition from the work accident.

130 On 17 March 2004 Dr McClure, psychiatrist, examined the plaintiff for the first defendant. His report added nothing to the earlier psychiatric opinions. In this doctor’s opinion, there was a past history of probable adjustment disorder with depressed mood to which the back injury in November 1999 was substantially contributory. However, the current situation was that no specific psychiatric diagnosis could be made. The plaintiff was not in need of any specific psychological or psychiatric treatment.

131 On 1 September 2004, the plaintiff was re-examined by Dr Darveniza, neurologist, at the request of the plaintiff’s solicitors. The plaintiff’s condition was unchanged. The doctor’s view of the case was the same. Dr Darveniza had now read Dr Lim’s three reports. He affirmed his own opinion that the back pain and subsequent sciatica were related to the work injury.

Mr Nolan’s evidence

132 Mr Nolan is one of four employment co-ordinators at the Aboriginal Employment Strategy, an office which has just been established at Dubbo. He has spoken to between 40 and 60 managers of potential employing companies in the district. The population of Dubbo is growing. The housing industry in the district is buoyant. There is a demand for skilled, semi-skilled and unskilled labour. Notwithstanding this, there are many young people looking for work in Dubbo.

133 Mr Nolan has no experience in trying to place someone for employment who suffered from a disability. He thought it would be very difficult to place such a person in employment in Dubbo because most employers are looking for healthy people.

134 In Mr Nolan’s opinion, work as a courier would not be an option for the plaintiff because of the distances required to be driven for such employment in the district.

135 He did not think employment as a forklift driver would be an option because of difficulty climbing on and off the machine and because such machines have no shock absorbers. He had a similar view about the plaintiff working as a front-end loader or backhoe operator.

136 Work as a service station console operator involved a lot of standing and also involved lifting weights for the purpose of stacking shelves. It involved stooping to check fuel levels.

137 Work as an enquiry clerk was not an option because of the length of time required either sitting down or standing up. It involved getting in and out of cars frequently and it involved computer skills.

138 There were similar problems associated with work as a despatch clerk or a sales assistant, which would additionally involve moving materials about.

139 Youth work would not be an option, according to Mr Nolan, due to the amount of travel, having to get in and out of cars frequently, carrying materials about and dealing with young people with behavioural, drug and alcohol problems. Such a job entailed accompanying such young people to courts across the state.

140 Working as a teachers’ aide would not be an option for similar reasons, according to Mr Nolan.

141 Computer skills were required for clerical work nowadays, such as a purchasing officer.

142 In cross-examination, Mr Nolan said it would be very hard to find employment for the plaintiff but, he agreed, not impossible. He agreed that it might be possible to find work for the plaintiff with re-training, depending on what the plaintiff was capable of doing. Asked if the plaintiff might be a useful employee in his own office, Mr Nolan said that was a possibility. He said his office could identify opportunities for the plaintiff in TAFE but it was another question whether the plaintiff had the capacity to undertake that sort of training.

143 In re-examination, Mr Nolan said that work in his office involved use of computers, correspondence, paperwork and a lot of travel.

144 I think such concessions as were made by Mr Nolan about the plaintiff’s potential capacity for employment were in the realm of the theoretical rather than the practical. I do not think Mr Nolan intended the concessions to be otherwise.

Evidence not tendered

145 The plaintiff was examined by Dr Cummine, Dr Fernside and Dr Bornstein for the defendants. The reports of these doctors were not tendered by the defendants.

Causation of damage

146 Apart from Dr Lim, the evidence is all one way. Dr Lim’s opinion in this regard has wavered somewhat. Even then, he has not at any stage completely dissociated the plaintiff’s physical condition from the work accident. At its highest in favour of the defendant’s, Dr Lim’s evidence is that the work accident rendered a pre-existing pathology symptomatic and has materially contributed to the plaintiff’s symptoms.

147 I have no hesitation in finding that the plaintiff’s physical condition since the accident has resulted from it.

Proposed surgery

148 As recorded above, the plaintiff gave Dr McEwin a fuller account of the advice he had received in relation to prospective surgery than appears in his oral evidence. Having regard to what the plaintiff said in evidence and what he told Dr McEwin, I find that there is no serious prospect that the plaintiff will undergo secondary surgery at any future time. In view of the advice to which I have referred, that is by no means unreasonable.

149 In any event, in view of the state of the evidence concerning outcome, I do not find that there is a likelihood that any such surgery would be successful.

150 In these circumstances, the plaintiff’s present condition has to be taken as permanent.

The prospects of retraining and re-employment

151 The plaintiff appears to me to be a person of normal intelligence, who has not had the advantage of as complete an education as others have had the good fortune to receive. As I have mentioned, he attempted an apprenticeship course at one stage, but failed in the computer subject. I was left with the impression that the subject dismayed him. I believe that retraining for today’s office work would be beyond him. Additionally, he lacks the social skills necessary for most kinds of white collar work. His way of speaking alone disqualifies him from most office work and from work which involves dealing with members of the public. Then there is his physical condition. He has continuous pain. He is unable to sit comfortably. He is unable to stand comfortably.

152 The plaintiff is, in my judgment, presently unfit for all work as Dr McEwin says. I regard the evidence that he is fit for selective employment with re-training as totally unrealistic.

Quantification of damages

153 I assess general damages for non-economic loss at the monetary equivalent of 60 per cent of a most extreme case.

154 Past economic loss is allowed as claimed, based on agreed actual nett earnings as at the date of injury with increases according to CPI.

155 Interest on past economic loss is allowed as claimed.

156 Similarly, loss of leave loading.

157 Future economic loss is allowed as claimed, being for total and permanent incapacity for employment, with a discount of 15 per cent for vicissitudes.

158 Past loss of superannuation, future loss of superannuation and past out of pocket expenses are allowed as claimed.

159 No allowance is made for the cost of future surgery.

160 Future GP visits. The claim is for twice yearly GP visits at $50 per visit ($1.92 per week for 924.8 weeks) making $1775 in total. The claim is not mentioned by Ms White. The claim is supported by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

161 Future specialist visits. The claim is for once yearly specialist visits at $120 per visit ($2.30 per week for 924.8 weeks) making $2127 in total. The claim is not mentioned by Ms White. The claim is not mentioned by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

162 Future physiotherapy. The claim is for four physiotherapy sessions per year ($3.00 per week for 924.8 weeks) at a total cost of $2774. The claim is not mentioned by Ms White. The claim is opposed by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

163 Future hydrotherapy. The claim is for four hydrotherapy sessions per year ($4.45 per week for 924.8 weeks) at a total cost of $4115. The claim is supported in part by Ms White, who recommends life membership of Dubbo RSL Club for the use of its heated pool, at a cost of $231 per year. The claim is not mentioned by Ms Staracek. It is supported in part by Dr McEwin who recommends membership of a hydrotherapy pool (as opposed to a heated swimming pool). There is no evidence of the availability of such membership. I allow this item as claimed.

164 Armchair. The claim is for $8407 for provision of a recliner style armchair to enable the plaintiff to alter his sitting posture and provide better back support. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

165 Back support. The claim is for $948 for additional back support for the plaintiff’s car. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

166 “Anchorpedic” chair. The claim is for $2110 for an “Anchorpedic II” office style chair so that the plaintiff can undertake certain leisure activities. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

167 Bed. The claim is for $4,960 for a bed which provides good lateral stability, to enable the plaintiff to sleep, and is of good height, to enable the plaintiff to transfer independently on and off. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

168 Shower chair and hand held hose. The claim is for $775 for a shower chair and hand held shower hose. The claim is supported in whole by Ms White. The claim is opposed by Ms Staracek. It is not mentioned by Dr McEwin. In view of the plaintiff’s evidence of instability in the shower and Ms White’s evidence, I allow this item in full.

169 Power operated recliner riser. The claim is for $315 for a power operated recliner riser armchair to enable him to transfer independently as his mobility is likely to decline. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

170 Wood for home heating. The claim is for $2127 for firewood ($2.30 per week for 924.8 weeks). The claim is supported in whole Ms White. The claim is supported by Ms Staracek. It is not mentioned by Dr McEwin. The plaintiff’s evidence supports this claim. I allow this item in full.

171 Shower recess. The claim is for $10000 for a purpose built shower recess in the existing garage, as removing the hob to allow the plaintiff unrestricted access to the existing shower may be too difficult. The claim is supported in principle by Ms White. The claim is opposed by Ms Staracek. It is not mentioned by Dr McEwin. I allow $2500 for this item, in the absence of costing.

172 Grab rail. The claim is for $44 for a grab rail for the plaintiff to hold onto when showering. The claim is supported in whole by Ms White. The claim is opposed by Ms Staracek. It is supported in whole by Dr McEwin. I allow this item in full.

173 Disabled armrest toilet surround. The claim is for $160 for a toilet surround to facilitate the plaintiff’s safe transfer on and off the toilet. The claim is supported in whole by Ms White. The claim is opposed by Ms Staracek. Dr McEwin suggests another grab rail. I allow $44 for the item.

174 Raised garden beds. The claim is for $500 for raised garden beds to provide the plaintiff with meaningful leisure activities. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. Dr McEwin suggests pot plants on a raised platform as a preferable alternative. I do not think the cost would be less. I allow the item in full.

175 Past personal care assistance. The claim is for past personal care assistance following the previous surgery for four weeks at half an hour per day at the rate of $17 per hour, to a total of $238. The claim is supported in whole by Ms White. The claim is supported by Ms Staracek. It is not mentioned by Dr McEwin. I allow this item in full.

176 Future personal care assistance. The claim is for future personal care assistance from the age of 55, for 23 years at the rate of $36.85 per hour at 45 minutes a day, to a total of $58,042. The claim is deferred for 18 years. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is supported in principle by Dr McEwin: “I find it very difficult to make specific recommendations on the amount and time of this help which will be needed … I do not regard the recommendation in … Ms White’s report … unreasonable”. I allow the item in full.

177 Past domestic assistance. The claim is for past domestic assistance for four hours per week at $17 per hour for 4.33 years, to a total of $15,310. The claim is supported in whole by Ms White. The claim is supported by Ms Staracek . It is supported in principle by Dr McEwin: “He cannot do any housework to help his wife”. I allow the item in full.

178 Additional domestic assistance following birth of daughter. The claim is for past additional domestic assistance following the birth of the plaintiff’s daughter, at nine hours per week at $17 per hour for three months, to a total of $1,950. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is not mentioned by Dr McEwin. The claim is reasonable. I allow this item in full.

179 Past domestic assistance following surgery. The claim is for past domestic assistance following the previous surgery, at 17 hours per week at $17 per hour for eight weeks, to a total of $2,312. The claim is supported in whole by Ms White. The claim is supported by Ms Staracek. It is not mentioned by Dr McEwin. I allow this item in full.

180 Future domestic assistance. The claim is for future domestic assistance, at four hours per week at $17 per hour for 924.8 weeks, to a total of $62,886. The claim is supported in whole by Ms White. The claim is supported by Ms Staracek. It is supported in principle by Dr McEwin. I allow the item in full.

181 Past handyman assistance. The claim is for past handyman assistance for work on lawns, gardens and home maintenance for 1.6 hours a week at $17.50 per hour for 4.33 years, to a total of $6,304.48. The claim is supported in whole by Ms White. The claim is not mentioned by Ms Staracek. It is not mentioned by Dr McEwin. The claim is supported by the plaintiff’s own evidence. I allow this item in full.

182 Future handyman assistance. The claim is for future handyman assistance for work on lawns, gardens and home maintenance for $43 per week for 924.8 weeks, to a total of $39,766. The claim is supported in whole by Ms White. The claim is supported in part by Ms Staracek, who states that $30 per fortnight in summer and $30 per month in winter, plus an additional four hours six monthly for heavy household maintenance, would be adequate. It is not mentioned by Dr McEwin. I allow this item as costed by Ms Staracek.

183 Home painter. The claim is for $18518 for home painting, based on a quote of $8525, less 20 per cent for materials, per job, deferred to various future years. The claim is supported in principle by Ms White and by a quotation as to quantum. The claim is not mentioned by Ms Staracek. It is not mentioned by Dr McEwin. I allow this item in full.

184 Fox v Wood. This claim is allowed in full.

Further exhibits

185 The plaintiff’s and first defendant’s schedules of damages should be marked as exhibits.

Orders

186 Counsel are to bring in a short minute of quantified findings and of order as to verdicts and judgments.

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Last Modified: 04/27/2004