Tupanceski v Hajje

[2006] NSWDC 24

CITATION:	Tupanceski v Hajje [2006] NSWDC 24 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 August - 3 August 2006
JUDGMENT DATE:	21 September 2006
JUDGMENT OF:	Rolfe DCJ
DECISION:	Verdict and Judgment for the Plaintiff against the Defendant in the sum of $132,945.
CATCHWORDS:	Professional Negligence - Action against Solicitor - Determination of what advice ought to have been given to the plaintiff about his rights to recover modified common law damages - Loss of Chance - Assessment of Damages at Notional Trial Date - Factors to Consider - Allowance for vicissitudes in valuing future workers compensation rights including taxation impact
LEGISLATION CITED:	Workers Compensation Act 1987 - ss 151G & 151H Civil Liability Act 2002
CASES CITED:	Chamberlain v Ormsby (T/as Ormsby Flower) CA 21 December 2005 BC 200511171 Dell v Dalton (1991) 23 NSWLR 528 Johnson v Perez (1998) 166 CLR 351 at 372 Jones v Dunkel (1959) 101 CLR 298 Medcalf v Perry (2002) 50 NSW LR 211 Southgate v Waterford (1990) 21 NSWLR 427 State Rail Authority v Smith (1998) 45 NSWLR 382 Tipper v Williams (No 2) CA 6 May 1994 BC 9404994 Williams v Bodewes (1997) Aust Tort Rep 81/449
PARTIES:	Zdravko Tupanceski (Plaintiff) John Hajje (Defendant)
FILE NUMBER(S):	2550/06
COUNSEL:	D Kennedy SC with A Porthouse (Plaintiff) D Priestley (Defendant)

JUDGMENT

1 The plaintiff in these proceedings, Zdravko Tupanceski, was born in Macedonia on 30 July 1959. He came to live in Australia in 1975. In 1976 the plaintiff commenced employment with BHP Steel (AIS) Pty Limited, which remained his employer until 6 April 2004.

2 During the course of the plaintiff’s employment, he was injured at work on 24 April 1996.

3 On or about 6 September 1996 the plaintiff consulted the defendant in these proceedings, John B Hajje, who is a solicitor of the Supreme Court of New South Wales. The plaintiff consulted the defendant concerning the injuries he had sustained on 24 April 1996 whilst lifting palettes in the course of his employment. The defendant admits this consultation took place.

4 The defendant also admits that between 6 September 1996 and 20 March 2003 the defendant acted for the plaintiff “with regard to the matter and provided him with legal services and advice in that period” (para 6 of Ordinary Statement of Claim filed on 18 April 2005).

5 The defendant admits that he owed the plaintiff a duty of care to act in accordance with recognised and accepted standards of professional care, skill and responsibility of a solicitor and that it was an implied term of his retainer that the defendant would provide the plaintiff with accurate and proper advice as to the plaintiff’s legal entitlements and would act in accordance with recognised standards of care, skill and competence as a solicitor.

6 In paragraph 6 of the Ordinary Statement of Claim the plaintiff pleaded that he had a cause of action in negligence for damages against BHP arising out of the circumstances of the accident on 24 April 1996. The particulars of negligence are set out in sub-paragraphs (a) – (i) (inclusive).

7 As between the plaintiff and the defendant, it has been agreed that, in respect of the plaintiff’s cause of action in negligence for damages against BHP, that the plaintiff had an 80% chance of succeeding against BHP if such proceedings had been instituted and gone to trial.

8 In these proceedings the plaintiff alleges that the defendant breached his duty of care to the plaintiff and breached his retainer in that (refer para 7 of the Ordinary Statement of Claim) he:

a. Failed to advise the plaintiff of his rights to claim damages for negligence

against BHP.

b. Failed to advise the plaintiff that any cause of action in negligence against BHP

expired on 24 April 1999 and that proceedings had to be commenced prior to

that date.

c. Failed to commence proceedings on behalf of the plaintiff for damages against

BHP prior to 24 April 1999.

9 Mr Priestley of counsel appeared for the defendant. The essential thrust of Mr Priestley’s oral submissions, which I will return to in more detail later in this Judgment, was that the plaintiff had not established that there was any “relevant negligence by the defendant” which had caused the plaintiff loss. Mr Priestley submitted that the question was not whether the defendant should have filed a statement of claim, but what his advice to the plaintiff ought to have been, and in this context, the Court had to be satisfied that the plaintiff would have instructed the defendant to institute proceedings against BHP for modified common law damages.

10 The plaintiff’s evidence was that from 1976 until 1994 he worked as a labourer on the tin mill shear line at BHP. In 1994 he started doing work as a team leader. The evidence establishes that the plaintiff did a lot of overtime, particularly as a labourer.

11 On 24 April 1996 the plaintiff was working on the shear line. He had to lift palettes weighing about 26 kilograms from the factory floor onto a bench and then onto a conveyer belt. The work involved a lot of twisting and stretching as well as lifting. On the day in question the plaintiff said he was in the process of lifting a particular palette from the floor to the bench, when he felt a crack in his back. He immediately stopped the conveyer. He said the crack in his back was just above the belt line and in the middle part of his back. The plaintiff said the palette in question was being packed with tin plate.

12 Exhibit A consists of three photographs showing the sort of palettes which the plaintiff had to lift and the location where they were to be placed on the conveyor belt. The plaintiff said he arranged for these photographs to be taken on the advice of the defendant.

13 The plaintiff said he immediately consulted his general practitioner, Dr Sharma. His back felt bad and he could not go to sleep. Dr Sharma prescribed medication and the plaintiff took a number of days off before going back to work on light duties. The plaintiff explained that he went back to work after only taking a few days off because that was all that Dr Sharma had certified for him to take off.

14 When the plaintiff went back to work he did the tallyman’s job which involved light duties and he was recording orders sitting down on a chair. The plaintiff said that he continued to have back pains. Although he was given physiotherapy treatment, this did not help. He also tried some hydrotherapy, but that was no use either.

15 The plaintiff said that he kept taking time off work intermittently because of the back pain. He was unable to be specific about the amount of time taken off because it was more than ten years since the accident occurred. However, he remembered aggravating his back in June 1996 whilst bending down, when he was showing another worker how to perform a particular task.

16 The plaintiff said that as a result of hurting his back he started to get pains in his legs all the way down. He said that since the date of the accident the back pain would always be there and it would get worse if he tried to do various things, and he included by way of example, sitting down for a long time in the car.

17 The plaintiff said that before the accident he had never had any back pains or leg problems and had been a very active person. He used to play soccer with his workmates at BHP once a week in the two years prior to the accident. He also used to muck around in the backyard with his two children (now aged 23 and 21 respectively and working full time), kicking the ball with them. The plaintiff said that prior to the accident he also used to go fishing in Lake Illawarra with family and friends and would go out dancing with his wife to clubs and visited friends at their homes. The plaintiff has stopped fishing, he no longer goes out dancing and he has minimal activity with friends, all of which he put down to the consequences of the accident.

18 At the time of the accident the plaintiff’s wife was working in a full time basis. More details of her employment were given by Mrs Tupanceski in her evidence.

19 The plaintiff recalled a specific occasion when he had been admitted to Figtree Hospital because he was in so much back pain. He said it was so bad that he was worried about walking and so he went and saw Dr Sharma who advised that one week’s recuperation in hospital might assist. The plaintiff was given injections during this period of time and told to take Panadeine Forte. The pain was so bad that the plaintiff was crying. He wondered how on earth he was going to keep on going and what he was going to be able to do with his life. Every day seemed to be worse.

20 The plaintiff said that he told the defendant about all of his physical problems. One of these included not being able to have sexual intercourse with his wife. He said the feelings were absent and he experienced problems getting an erection. The plaintiff said that prior to the accident his sex life with Mrs Tupanceski was normal, but because of the accident, his relationship with her has become difficult. He said he is very upset about this and it was apparent that it is disturbing him from the way in which he gave evidence about it in the witness box. Clearly the plaintiff feels very emotional about this part of his life and the problems he has encountered.

21 The plaintiff said he hoped that the defendant would help him and get him his entitlement under the law. The plaintiff said he left everything to the defendant. He wanted to get on with his life. The defendant did not speak the plaintiff’s language so they had to communicate in English. In my assessment, although the plaintiff’s English is very poor, it was just sufficient for him to have given evidence in English without the aid of an interpreter.

22 The plaintiff experienced further difficulties at work when an incident occurred in about November or December 1996. The plaintiff said he was lifting a plastic roll and experienced back pains.

23 The plaintiff said another incident occurred in 1998 when, while lifting some small palettes, he experienced back pains. The plaintiff said that on the occasion in question he had been told by his boss to lift the palettes and he felt he had no choice other than to do so. The plaintiff said this made his back worse, although it later calmed down.

24 The plaintiff said that on Dr Sharma’s advice he has been taking Panadeine Forte, Zoloft and Efflexor. Although Dr Manohar suggested that the plaintiff try swimming, he did so for a week, but it did not help. Essentially, the plaintiff said that between 1996 and 2002 he continued doing light duties work at BHP and having time off intermittently.

25 The plaintiff said that he kept seeing Dr Manohar occasionally. Dr Manahar is a rehabilitation specialist. The plaintiff said he regularly saw Dr Sharma. He gave up having physiotherapy because he said it did not help; in fact he thought it made things worse.

26 The plaintiff said he saw a psychologist, Liam Guilfoyle, in the year 2000. The plaintiff had a number of consultations and he said that the counselling he received from Mr Guilfoyle helped him a lot.

27 As mentioned, the plaintiff only did light duties after the accident. In this context, there was no overtime available to the plaintiff. Prior to the accident, the plaintiff said that two or three times a week he used to do a double shift of 16 hours. Basically, this overtime work had always been available to the plaintiff since he started work at BHP. The overtime was very important, especially after he got married, bought a home and had children, with the consequence of increased financial responsibilities.

28 It was obvious from the plaintiff’s evidence that he was very upset about not finding work since his employment with BHP was terminated. He said he had wanted to continue to work for BHP.

29 The plaintiff’s present position is that he is in pain all the time, he cannot sleep properly and has to take medication to assist him to do so. He said his legs shake, he is in pain when bending, he cannot bend down without holding onto something and the pain shoots all the way down from his low back to the lower part of his limbs. It is not possible for the plaintiff to lift anything weighing more than two to three kilos and he is restricted in walking. After ten minutes he said that he has to stop.

30 The plaintiff said he is not able to run and cannot kneel. The plaintiff said he can squat on his haunches providing he is holding onto something. When sitting down for more than ten minutes the plaintiff finds it hard to get up and I observed that this was the case whilst he was in the witness box.

31 The plaintiff said that after he was sacked by BHP he got some financial assistance from his father, principally in the form of an inheritance when his father died. The plaintiff said that he has been trying to find other work since he left BHP. They told him that the tallyman’s job was no longer available to him when they sacked him. Although at one point he had been a team leader, the section that he had been leading got closed down so that position was no longer available either. Prior to being sacked, the plaintiff said he applied for the operator’s job in the control room, but was unsuccessful.

32 The evidence in Exhibit B discloses that on, 11 July 2002, when the plaintiff arrived for work, he was informed that there was no suitable work available for him at that time due to the restrictions on what he could do as certified by his doctor. On 23 March 2004 BHP sought to review the plaintiff’s position because there was no indication that he was going to be able to return to work to perform his pre-injury duties. BHP told him that he could return to those duties if he was able to get a medical clearance from his doctor, which clearly he was not going to be able to do.

33 BHP terminated the plaintiff’s employment by its letter dated 6 April 2004, in which it informed him that BHP could not find suitable light duties for the plaintiff to perform. Therefore, BHP said they had terminated the plaintiff’s employment due to his incapacity to perform the full range of duties required in his pre-injury position.

34 Admitted into evidence as exhibit E were the PAYG Summaries for the plaintiff for the financial years 2001, 2002, 2003 and 2004.

35 The plaintiff has applied for a number of jobs as a cleaner. He disclosed to the prospective employers that he had back problems, and unsurprisingly, he was unsuccessful in getting the job in each case.

36 Exhibit C contains documentation from some of the companies which the plaintiff applied to for employment, including Steel City Beverages, De Santis Marble & Granite, Tabak Cement Rendering Pty Limited, GM Fabrication and Kara’s Smash Repairs Pty Ltd.

37 In cross-examination the plaintiff agreed that after the accident he became a team leader and when he did so he worked full time, but without any overtime. However, as mentioned earlier, the team leader’s position became redundant. The plaintiff had been able to perform it because it was not a heavy job.

38 In cross-examination the plaintiff agreed that he experienced back pains again at work on 26 April 2002 and had to stop work straight away and get medical treatment. After that, although the plaintiff tried to go back to work, he said that there was no work available for him. This made him feel bad and sad and he cried a lot. He did not go back to work after that incident.

39 It was abundantly clear from the evidence given in the plaintiff’s cross-examination, and I am so satisfied, that he relied entirely on the defendant to give him proper advice about his rights arising out of the accident. The plaintiff’s evidence was that he was always asking the defendant what his rights were “under the law”. The plaintiff said his solicitor, the defendant, told him that “the papers” had been sent to BHP. Regarding workers compensation payments, the plaintiff said he consulted the defendant and the defendant kept telling him not to worry because “the papers” had been sent to BHP. The plaintiff was unsure precisely when he first saw the defendant and on his evidence, it was somewhere between three to five months after the accident occurred on 26 April 1996.

40 In my assessment, the plaintiff is a man who had a strong work ethic, as evidenced by his record in working and being employed by BHP for 28 years. Indeed the plaintiff said he would not have been very happy losing his job if that had been a consequence of obtaining money from BHP. Having said that, however, the plaintiff said he has always believed that BHP should have paid him what he was entitled to. This is because from day one he had the sort of problems mentioned in this judgment, all of which he attributes to the accident. As I understood his evidence, which I accept, the plaintiff always wanted to obtain whatever he was entitled to receive in accordance with his legal rights and he made this abundantly clear to the defendant.

41 When it was put to the plaintiff that he spoke to the defendant about a commutation of his workers compensation rights, the plaintiff said that he did not remember talking to the defendant about this. Rather, he clearly recalled the defendant telling him that he would get $220,000 from BHP. The plaintiff himself put forward figures of $240,000 and $250,000 to the defendant, but left it to the defendant to see what he would get for the plaintiff. The plaintiff further said the defendant was talking to him about amounts of $220,000, $240,000 and $250,000 and mentioned these in the context of cases similar to the plaintiff. In this respect, the plaintiff said in re-examination that when he saw the defendant he had no idea as to what his entitlements were.

42 Similarly, when asked why it was that he went to see various doctors, the plaintiff said he went to all of them to get treatment, including those doctors he saw for medico-legal purposes.

43 In my assessment the plaintiff gave his evidence in a straightforward way. He was a very honest man. I am satisfied the plaintiff was entirely truthful when giving evidence, that he did not exaggerate in any way, shape or form and I accept that he has suffered from the beginning in the way that he gave evidence about. Indeed, counsel for the defendant did not really make any submissions to the contrary. In any event, the evidence given by the plaintiff’s wife merely reinforced the assessment I had made of him.

44 Cvetanka Tupanceski gave evidence that she came to Australia in 1974 and met and married the plaintiff in 1979, whilst he was working at BHP. She described him as a dedicated worker who frequently worked overtime. Mrs Tupanceski said the plaintiff suffered no physical or emotional problems before the accident at work on 24 April 1996. When the accident occurred the plaintiff told his wife that he had injured his back. He took some days off work and had some physiotherapy, hydrotherapy and was given medication.

45 Mrs Tupanceski said the plaintiff went back to work on light duties but was always complaining about his back and started to get cranky. Unfortunately, normal things that Mrs Tupanceski did or said sometimes upset the plaintiff, who became emotional and withdrawn. This affected their sexual relationship and it deteriorated pretty much in the way that the plaintiff had described in his own evidence. Mrs Tupanceski said that before the work accident she and her husband had a normal, healthy sexual relationship.

46 At the time the plaintiff was admitted to Figtree Hospital, Mrs Tupanceski said that he became very withdrawn. She also said that at different times after the accident the plaintiff had to be taken to the casualty department because of the pain that he was in. Mrs Tupanceski also confirmed the plaintiff’s evidence that he no longer participated in family functions. He did not do any dancing and there had been no recreational activities that he had participated in since the accident.

47 Accepting the defendant had failed to properly advise the plaintiff about his rights in relation to both workers compensation and common law damages, Mr Priestley’s core submission was that, first, the Court has to determine, on the balance of probabilities, what that advice should have been. Secondly, he submitted that the Court has to be satisfied, on the balance of probabilities, that the plaintiff would have instructed the defendant to commence proceedings against BHP claiming modified common law damages for negligence in failing to provide a proper system of work.

48 As to the first matter, Mr Priestley relied on the evidence of Mr David Stanton, expressed in his two reports dated 25 November 2005 and 27 June 2006. These can be found in the defendant’s tender bundle, exhibit 1.

49 Mr Stanton has been a barrister for fourteen years. He said he had considerable experience in personal injury litigation in cases in the Supreme Court of New South Wales, in this Court and in the Compensation Court and this was not challenged. Mr Stanton also gave oral evidence and said that between 1999 and 2004 he spent between 60 to 70% of his time appearing in this Court in personal injury cases. His evidence was that if the plaintiff had commenced proceedings in this Court in early 1999 against BHP, based on his experience, (then as a junior of seven years standing), the matter would have proceeded to a hearing before a Judge of this Court within two years.

50 In expanding on his first point and relying on Mr Stanton’s report, Mr Priestley submitted that if the Court was satisfied that whilst the plaintiff’s cause of action against BHP remained on foot that his potential damages claim against BHP was obviously much more valuable than any other rights he might have had, then it would be an easy decision for the Court to determine that the defendant had failed to give the plaintiff proper advice, which the plaintiff would clearly have elected to follow. However, Mr Priestley submitted that, based on Mr Stanton’s report, this was not the case at all. Rather, the Court would not be satisfied that the value of the plaintiff’s common law claim was worth more than his workers compensation benefits and that the Court would take into account the potential of the plaintiff losing his job if he sued BHP, with the consequence that the Court could not be satisfied that the plaintiff would have instructed the defendant to commence proceedings for modified common law damages against BHP.

51 In his expert reports, Mr Stanton said he had been asked to opine on the following matters:

a. The prospect of the plaintiff overcoming the thresholds under section 151G and

section 151H of the Workers Compensation Act 1987.

b. Whether a reasonable solicitor in the position of the defendant would have

advised the plaintiff, based upon the evidence that was available or ought to

have been available, with reasonable diligence prior to 24 April 1999, to

commence proceedings for modified common law damages against BHP.

52 Mr Stanton agreed that in paragraph 3 of his report he had mistakenly recorded the figure for a most extreme case as $236,450, whereas it should have been $220,100. This error was elicited in cross-examination and had not been picked up by the plaintiff’s own expert.

53 After considering the medical evidence referred to in his reports, Mr Stanton expressed the following opinion (refer paras 23, 24, 25 and 26 of his report dated 25 November 2005):

“23. … I believe in the circumstances of this case that the plaintiff’s likely non-economic loss damages would have been between 15 to 20%. On one view of it, the plaintiff had a soft tissue injury which has left him with a minor impairment of his back. On another view of it, the plaintiff has some disc impairment which has prevented him performing full employment. I therefore believe that the range of impairment that I have assessed is an appropriate one.

24. Pursuant to section 151G of the Workers Compensation Act , such a range of impairment would result in an award of non-economic loss damages of between $33,015 and $44,020.

The first amount does not exceed the threshold under section 151G(4). In that circumstance, the plaintiff would recover no damages against his employer. Further, the plaintiff would by reason of commencing the common law proceedings also have elected to forego any lump sum entitlement that the plaintiff had pursuant to sections 66 and 67 of the Workers Compensation Act 1987.

25. The second amount exceeds the threshold under section 151G(4) but not section 151H(2a)(b). As referred to earlier, the plaintiff’s potential award pursuant to s 66 of the Workers Compensation Act would also not exceed the threshold referred to in s 151H(2a)(a). This would then result in the plaintiff’s damages being limited to damages for non-economic loss only. The monetary amount of such damages assuming the plaintiff is 20% of a most extreme case is $20,680.

26. In light of the range of damages that I have assessed and indeed the prospect that the plaintiff would not exceed the section 151G(4) threshold, I believe the plaintiff had a 50% chance of exceeding the section 151G(4) threshold on the evidence that was available prior to April 1999 (and even on the evidence that was subsequently available to Mr Hajje.).”

54 Mr Stanton then dealt with the question of what advice would have been given by a reasonable solicitor in the position of the defendant based on the evidence then available, or which ought to have been available with reasonable diligence prior to 24 April 1999, to commence proceedings for modified common law damages against BHP. Under the heading “Conclusion” on page 17 of his report of 25 November 2005, leaving aside matters relating to BHP’s breach of duty of care and contributory negligence, which are no longer relevant matters in this Court’s determination by reason of the parties agreement, Mr Stanton expressed the opinion that a reasonable solicitor would have advised the plaintiff on the following matters identified as paragraphs 3, 4, 5 and 6 in his opinion as follows:

“3. The plaintiff’s damages for non-economic loss would range between 15 to 20%.

4. If found to be 15%, then the plaintiff would recover no damages against his employer as such an amount for non-economic loss is not greater than the section 151G(4) threshold.

5. If the amount for non-economic loss was 20% of a most extreme case, then the plaintiff would recover damages of $20,680. The plaintiff would not be entitled to damages for economic loss in this circumstance as the amount recovered was not in excess of the section 151H threshold.

6. The chance of the plaintiff exceeding the threshold under section 151G (4) on the evidence available by April 1999 (and the evidence that was subsequently available) was not more than 50%.”

55 In his second report of 27 June 2006, Mr Stanton expressed the opinion that a solicitor acting reasonably would advise the plaintiff that if he failed to prove breach of duty of care by BHP he would be required to pay BHP’s costs, but Mr Stanton himself believed the risk of an adverse costs order was not very high. Mr Stanton also expressed the opinion that the plaintiff would have needed to have been informed of the impact of solicitor/client costs upon any verdict, expressing the following opinion in para 1b:

“In light of the small potential common law verdicts available in this case, it would be proper to advise the plaintiff that any damages he obtained from his employer may ultimately be consumed by the extent of the solicitor/client costs involved in pursuing the action.”

56 In paragraph 1c of his report, Mr Stanton also expressed the opinion that a solicitor acting reasonably in the position of the defendant would have needed to have advised the plaintiff of the very real risk that if he had sued BHP his employment would have been brought to an end, particularly where he was unable to attend to his normal duties, noting that it was not uncommon in settlement of industrial accident claims that a plaintiff be requested to resign from his employment as one of the terms of settlement. In the circumstances, these matters ought to have been drawn to the plaintiff’s attention by a reasonable solicitor acting in the defendant’s position.

57 Mr Stanton also expanded further on matters raised in his earlier report concerning the plaintiff’s Workers Compensation Act rights. He stated as follows in paragraph 1d:

“(1) d. The value of the plaintiff’s ongoing compensation rights
As indicated in my earlier advice, the plaintiff had a number of rights that were available to him under the Workers Compensation Act. They were the right to receive weekly payments of compensation for periods of incapacity, payment of medical expenses for treatment of his injuries and lump sum compensation for permanent impairment and pain and suffering.

A solicitor acting reasonably would advise the plaintiff that in pursuing a claim for damages he would give up his right to receive lump sum compensation.

As I formed the view that the plaintiff’s non-economic loss damages would not be greater than the section 151H threshold, then the plaintiff would retain his right to receive weekly payments and payment of medical expenses after the successful completion of a workers compensation claim.”

58 The balance of Mr Stanton’s report of 27 June 2006 dealt with the plaintiff’s residual workers compensation rights.

59 On the other side of the equation, the plaintiff relied on the expert report of Mr H N Kelly SC dated 19 May 2006. Mr Kelly was admitted to practise as a barrister in July 1974 and took silk in October 2003, so in 1999 he would have been a senior junior of fifteen years standing. Mr Kelly SC has practised extensively in personal injury litigation since being called to the bar.

60 Before providing his report, Mr Kelly SC had read Mr Stanton’s report dated 25 November 2005. Mr Kelly said that he had also read the medical reports referred to by Mr Stanton in paragraphs 8-22 of Mr Stanton’s opinion dated 25 November 2005 at pages 9-13. Mr Kelly assumed that Dr Sharma’s reports dated 16 January 1997 and 19 October 1998 would have been available to the defendant prior to 24 April 1999.

61 Mr Kelly SC concluded that the defendant was aware of the plaintiff’s complaints as recorded in the medical evidence to which he referred, in relation to matters of pain and suffering, disability, restriction of movement and work capacity. Whether or not the defendant was, in fact, aware of these matters is not necessary for the Court to determine. The Court concludes that a reasonable solicitor acting for the plaintiff at the relevant time ought to have been aware of the matters alluded to by Mr Kelly SC, including the fact that there had not been any improvement in the plaintiff’s condition during the period of time the cause of action was still available to the plaintiff. Mr Kelly SC also noted that, on his reading of the medical evidence, Dr Sharma had accepted the plaintiff’s complaints. Mr Kelly SC expressed the opinion that, as at October 1998, the plaintiff was significantly disabled because his problems had remained since his first consultation with Dr Sharma. Mr Kelly SC therefore concluded in his report:

“14. I am of the opinion that had proceedings been commenced and the plaintiff accepted by a court in relation to his complaints even with some degree of discount on the question of the actual degree of pain and suffering, disability, restriction of movement, work capacity etc. he would have satisfied the appropriate threshold both as to entitling him to damages for non-economic loss and economic loss.

15. In the circumstances of this case the assessment of a most extreme case as far as the plaintiff is concerned would be in the order of at least 25% assuming there was an acceptance by the trial judge as to the plaintiff’s evidence.

16. The ultimate assessment of an entitlement to damages for both non-economic loss and economic loss is not a matter for expert opinion I believe, but rather a judicial determination in accordance with ordinary principles specifically those considered in Southgate v Waterford (1990) 21 NSWLR 427 and Dell v Dalton (1991) 23 NSWLR 528.

17. Nonetheless I am of the opinion that on the basis of the material available to the defendant (ie the plaintiff’s instructions as to his complaints about pain and suffering, disability, restriction of movement, work capacity and the qualified medical evidence from both treating and medico-legal medical practitioners) there were reasonable prospects of the plaintiff overcoming the threshold under s 151G and S 151H of the WCA as it was enacted prior to 27 November 2001.”

62 In order for the Court to determine what advice ought to have been given by a reasonable solicitor to the plaintiff, it is necessary to consider the medical evidence.

63 In the report from Illawarra Radiology Group dated 2 August 1996, Dr Li said there was a small mid-line posterior disc protrusion of L4/5, with mild indentation onto the anterior aspect of the theca. He also said there was a mild degree of broad posterior disc bulge at L5/S1 without compression of the neural contents.

64 In the report from South Coast X-Ray of 6 March 1998, Dr Levitt recorded a history of bilateral leg pain and a bulge at L4/5 as had been demonstrated on 2 August 1996. He confirmed that there was a minor mid-line posterior protrusion of the L4/5 disc, indenting the adjacent lumbar theca, although that did not appear to cause any further focal neural compromise.

65 There is a further radiological report from Dr Chapman of the Illawarra Radiology Group dated 29 March 2000, which of course post-dates the expiry of the limitation period. In that report, Dr Chapman states as follows with regard to the results of the MRI scan:

“At L4/5, there is an area of high signal intensity lying beneath the lower aspect of the disc annulus centrally. These appearances are suggestive of an annular tear. There is some fatty marrow replacement in the adjacent vertebral end plate (modic type 2).”

66 This caused Dr Chapman to conclude and comment as follows:

“Desiccation of the intervertebral disc at L3/4 and L4/5. Central annular tear at L4/5. No other abnormality.”

67 Although the two CT scans referred to contained expressions of medical opinions, I am nevertheless comfortably satisfied that a reasonable solicitor in the position of the defendant would have been alerted to the possibility of the plaintiff having suffered a serious injury because, as a matter of commonsense, such a solicitor would have been familiar with the terminology in the reports and would have had a basic understanding of what they meant. Otherwise, such a person could not reasonably hold himself or herself out as a practitioner in the area. To illustrate the point, the workers compensation insurer was advised by Dr Silva, in his report of 2 August 1996, that an MRI scan should be obtained if the plaintiff continued to have time off work. Whilst this was the view of a doctor, it is very much commonsense thinking, and something that ought to have occurred to the defendant.

68 I now turn to the evidence of the treating doctors and medico-legal practitioners.

69 Initially, Dr Sharma did not think the plaintiff’s injury was as bad as it had turned out to be. In his report of 16 January 1997, Dr Sharma said, however, that between the date of the accident up until 16 January 1997, the plaintiff complained of back pain, stiffness in the back, sore lumbar spine, difficulties in performing his job, a deterioration in his sex life and a stiff neck. Dr Sharma diagnosed:

“Lumbar spine disc injury L4/5 disc bulge causing disability and flare up and inability to do his duties at work and interfering with his personal life …
He would perhaps be left with residual disability .” (Emphasis added)

70 In his next report of 19 October 1998, Dr Sharma said that between February 1997 and the date of this report the plaintiff had complained of pain, stiffness and tenderness in the back region, an aggravation which had occurred in March 1997, pain whilst walking, deterioration in the plaintiff’s sex life, swelling and tenderness in the lumber spine and right sacroiliac joint, left leg pain, a stiff neck, pain in the back when moving and twisting, the aggravation of the plaintiff’s condition after he had hydrotherapy, pain in the right sacroiliac joint and referred pain to the back of the right leg, shaking legs, difficulties sleeping, an admission to hospital under the care of a specialist Dr Maloney, a lot of pain in the back if the plaintiff worked too much including stiffness and sore with spasms with the need for painkillers, and problems standing up.

71 At that point, Dr Sharma was of the opinion that the plaintiff’s back condition was not improving and was getting worse.

72 The defendant referred the plaintiff to a neurosurgeon, Dr Dan, who saw the plaintiff on 14 October 1996 but did not provide a report until 20 October 1998, in which Dr Dan recorded, consistently with what the plaintiff had told Dr Sharma and the evidence he gave to the Court, the plaintiff’s complaints of limited walking and standing capacity, bending being a big problem, pain in the low back region and at the base of the neck, pain in both buttocks and the legs being shaky after standing for a time, with pain radiating down the front and back of the thighs at times.

73 With regard to the CT scan dated 2 August 1996, which showed a modest L4/5 disc bulge, Dr Dan said this could contribute towards the explanation of the plaintiff’s pain, but he did not consider surgical management at that time. Dr Dan attributed the plaintiff’s back dysfunction to the accident at work on 24 April 1996 and there was no aggravation of any pre-existing or constitutional disorder.

74 Importantly, Dr Dan made the following statement in his report:

“I believe that the major component to his back dysfunction when he was seen in October 1996 was the soft tissue injury but that the disc was a possible contributor to the symptomatology. When seen he was fit only for activities which did not involve heavy lifting or repetitive bending or which allowed him to move around from time to time. This limitation from work is attributable to the incident of 24.4.96. As he was only seen once it is difficult to determine whether his condition had stabilised . If he had remained at a similar level of dysfunction I would assess a 16% permanent impairment of his back as a consequence of the described injury.” (Emphasis added).

75 The above makes it clear, and I so find, that a reasonable solicitor in the position of the defendant would have arranged for the plaintiff to have been re-examined by Dr Dan and to obtain another report prior to 24 April 1999. In fact, the defendant arranged a report after the limitation period had expired. In that report dated 15 August 2000, Dr Dan said the plaintiff had suffered a soft tissue lumbar injury. He did not think surgery was appropriate.

76 The complaints recorded in Dr Dan’s report of 15 August 2000 are essentially consistent with the plaintiff’s evidence about how he was in 1996, 1997, 1998 and 1999. It is reasonable to conclude, therefore, that, in or about April 1999 Dr Dan most likely would have expressed a similar opinion as that expressed in the final paragraph of the report of 15 August 2000 as follows:

“On his complaints he was completely unfit for work. On objective grounds he would be fit for light sedentary duties, at least. There is a significant functional component to his disability. Mr Tupanceski has a 10% permanent impairment of his back which I think is stable and there is no organic prospect of further improvement or deterioration. On the basis of the history, his incapacity for work is associated with his work injury.”

77 Dr Dan was not called to give evidence and so there is no explanation as to why he moved away from the 16% permanent impairment back assessment expressed in his report of 20 October 1998 and reduced it to 10%.

78 The defendant also sent the plaintiff to see Dr Andrew Chan, a medico-legal specialist. Dr Chan examined the plaintiff in October 1998 and his report is dated 13 October 1998. Again, the report contains a record of complaints consistent with those made by the plaintiff about the circumstances of his accident and what happened to him thereafter. Under the heading “Work History”, Dr Chan recorded the following:

“He has been an operator for BHP since 1976 and still works there, but on light duties. He says he is incapable of doing anything except what he has been doing. When asked whether he is happy with the situation, he was noncommittal. He says he can wake up with his pain. He is also worried that that particular job cannot be given to him on a permanent basis . In the job he is doing now, he says he can sit down if he has pain and nobody says anything.

There are many days when he needs to leave work and at some stage had to go to hospital for treatment of his back pain.” (Emphasis added)

79 This bit of information contained a warning signal for the defendant in that it made clear that the plaintiff could not do his old job and would not be offered a permanent position in the job he was undertaking at the time the plaintiff was examined by Dr Chan.

80 Although Dr Chan stated that he was not sure if the 1996 accident caused the back problem, a reasonable solicitor in the position of the defendant would have realised that all the medical and other evidence on this point was overwhelming. Moreover, Dr Chan could have been given more information and asked to provide a further report.

81 In November 2002 the defendant arranged for the plaintiff to see a urological surgeon, Dr Dean, to whom he complained about sexual dysfunction problems. Dr Dean, in his report of 25 November 2002, concluded that the plaintiff suffered from impaired sexual function due to a low back disorder. He believed the plaintiff was likely to continue to suffer from sexual dysfunction. Dr Dean also thought the plaintiff should see a psychologist.

82 The uncontroverted evidence of the plaintiff was that he told the defendant before the limitation period expired of his problems regarding sexual dysfunction. Therefore, a reasonable solicitor in the position of the defendant should have arranged for the plaintiff to have been seen by Dr Dean or someone with like qualifications prior to 26 April 1999.

83 In a report dated 5 June 2003, Dr Giblin, an orthopaedic surgeon, said that, although surgery was unlikely, there was a possibility it could take the form of a discectomy at L4/5, which would cost $10,000. I am not satisfied that such evidence ought to have been marshalled by a reasonable solicitor in the position of the defendant prior to 26 April 1999, but I am satisfied that it should have been obtained before the notional trial date (see later).

84 Dr Manohar, the rehabilitation specialist, first saw the plaintiff on 23 March 2000. The plaintiff’s complaints were consistent with what the plaintiff told Dr Sharma and the evidence that the plaintiff gave the Court. It is apparent from the report that Dr Manohar was responsible for getting the MRI scan done of the plaintiff.

85 Dr Manohar saw the plaintiff again on 6 April 2000. Again, the complaints recorded were consistent with what Dr Sharma had been told and the plaintiff’s evidence to the Court. The same is true about what appears in Dr Manohar’s subsequent reports of 4 May 2000, 20 June 2000, 2 November 2000, 30 November 2000, 30 January 2001, 20 March 2001 and 8 May 2001.

86 Dr Manohar provided a medico-legal report to the defendant dated 12 March 2001, which effectively summarised the contents of all of the reports referred to above.

87 In my opinion, it follows as a matter of commonsense that a reasonable solicitor in the position of the defendant would have realised, in view of all the complaints of the plaintiff, that he should have been referred to someone like Dr Manohar for medico-legal purposes before 24 April 1999.

88 Dr Manohar referred the plaintiff to a psychologist, Liam Guilfoyle. The plaintiff saw Mr Guilfoyle on 5 July 2000 and Mr Guilfoyle concluded that the plaintiff was suffering from high levels of depression and stress and had high anxiety. He concluded that the plaintiff required emotional support, assurance and encouragement through regular counselling. Five sessions of therapy were recommended.

89 Based on what the plaintiff told him, the defendant was and ought to have been aware of the plaintiff’s psychological problems before 26 April 1999. In my opinion and assessment, a reasonable solicitor acting in the place of the defendant ought to have taken steps to have referred the plaintiff to either Mr Guilfoyle, or someone with his qualifications, prior to 26 April 1999.

90 In his second report of 8 May 2001, Mr Guilfoyle reinforced the conclusion he had come to in the earlier report.

91 Mr Guilfoyle’s third report dated 9 June 2001 was a medico-legal report provided to the defendant. It records that the symptoms reported by Mr Tupanceski were of severe sepority sufficient to diagnose as a chronic anxiety disorder complicated by recurrent depression of moderate severity and strong feeling of hopelessness. Mr Tupanceski felt a marked degree of displacement with his world given what he considered was his expected level of physical dysfunction for the rest of his life. Mr Guilfoyle considered that Mr Tupanceski had a bleak future. It is reasonable to conclude that, if proceedings had been commenced in, say, April 1999, a report along the lines of those dated 8 May 2001 and 9 June 2001 would have been obtained by the defendant before the notional trial date.

92 Although it was submitted by counsel for the defendant, in terms of the period between the date of the accident up until when the plaintiff became statute barred, that the evidence was all “one sided” and there was no evidence from BHP’s doctors, the submission was incorrect because Dr Silva’s report was obtained by BHP’s workers compensation insurer on 19 December 1996, after he had seen the plaintiff on that day. The information in the report is consistent with the plaintiff’s account to the Court of what happened to him at the time of the accident and subsequently.

93 BHP’s workers compensation insurer also obtained two reports from an orthopaedic surgeon, Dr Lyons, dated 8 March 1997 and 27 August 1997. In the first, Dr Lyons thought the plaintiff’s prognosis was reasonably good and he suggested more vigorous exercising. In the second, Dr Lyons seems to be suggesting that the plaintiff was, in effect, a malingerer. Clearly, this opinion was out of step with all the other evidence, and a reasonable solicitor in the position of the defendant would have so concluded.

94 Although there is no evidence that these reports were before the defendant, the Court infers that they would have been tendered in any proceedings instituted by the plaintiff against BHP.

95 I have taken into account the report of the neurosurgeon, Dr Maloney, dated 1 May 1998. Dr Maloney considered that the plaintiff appeared to be in good health with regard to his back and should start work on selected duties. Again, I consider the opinion about the plaintiff’s health to be inconsistent with other medical opinions and the facts known to the defendant, so I do not give it much weight. Moreover, in a later report, Dr Maloney said he believed that the problem which the plaintiff complained of was due to the nature and conditions of his work as a fork lift driver. Clearly, Dr Maloney had no real understanding of the circumstances relevant to the plaintiff.

96 As noted, there was a difference of opinion between Mr Kelly SC and Mr Stanton. As Mr Kelly SC said, the matter really rests with the Court: Southgate v Waterford; Dell v Dalton. Nevertheless, I have taken their reports into account. So far as Mr Stanton is concerned, I am of the view that he underestimated, first, the extent of the plaintiff’s problems with his back, secondly, the plaintiff’s potential loss of earnings and diminishment in earning capacity and, most importantly, the psychological impact that all this had on the plaintiff. I therefore prefer Mr Kelly SC’s opinion over that of Mr Stanton. More importantly, the judgment of the Court is that a reasonable solicitor in the position of the defendant would have advised the plaintiff no later than April 1999 that, if the plaintiff brought a modified common law action for damages against BHP, in all likelihood the plaintiff would recover an amount between about $250,000 and $300,000. In other words, the advice should have been that the plaintiff’s claim for damages for economic loss would most likely be assessed at between 25% to 30% of a most extreme case, based on all the available evidence of the plaintiff’s pain and suffering and disabilities and the medical evidence, including that which should have been obtained, as mentioned in this judgment. That evidence established that the plaintiff had a soft tissue lumbar injury which made him fit for sedentary work only, that he suffered sexual impairment and had high levels of depression, stress and anxiety. Therefore the plaintiff would have been advised that he would overcome the thresholds in section 151G and section 151H of the Act with the result that he would recover damages for actual lost earnings, namely, overtime and, most likely he would recover an amount by way of a cushion for future loss of earnings as well as the diminishment in his earning capacity. In this respect, Dr Sharma identified in 1997 the possibility of residual disability, in 1998 he said the back was getting worse and the overwhelming evidence available to the defendant during the limitation period was that the plaintiff was only fit for light work. Moreover, the plaintiff’s future was up in the air and a reasonable solicitor ought to have known that the plaintiff’s position might ultimately be terminated and he could be unemployed for substantial periods and even if employed he could receive less than he would have earned at BHP.

97 I have arrived at the round figure of $250,000 by taking into account the following. First, 25% of a most extreme case in round figures would have resulted in a figure for non-economic loss of $55,000. Next, an allowance ought to have been made for approximately three years lost overtime, say, 150 weeks @ $100 per week, resulting in an amount of $15,000, on top of which an allowance for $9 per week lost superannuation for the same period, amounting to $1400 (round figures), should have been included.

98 In terms of future economic loss, it would have been reasonable to assume an ongoing loss of $100 per week for overtime. The plaintiff would have been aged 39.8 years when he ought to have been advised by the defendant, so he would have had 25.2 years left in the workforce until he turned 65. For future lost overtime at $100 per week, using a multiplier of 753.6, the amount is $75,000 (round figures). I arrive at $63,750 after allowing 15% for vicissitudes.

99 Given the plaintiff’s earnings for the financial year ending on 30 July 2001 were $864 net per week, I have assumed in the period 1 July 1998 – 30 June 1999, (taking account inflation in the years 2000 and 2001) the plaintiff would have earned less, say $750 per week net.

100 In terms of arriving at a cushion, a reasonable solicitor in the place of the defendant would have had to take into account the possibility the plaintiff might have continued to work with BHPdoing light duties, but, on the other hand, his employment might well be terminated; thereafter, the plaintiff could have trouble getting a job or at least one that paid as much as BHP. It would not have been unreasonable, therefore, for the defendant to have arrived at a potential figure for lost earnings of at, the very least, $150 net per week, resulting in a cushion of $112,500 (round figures). I arrive at $95,600 after allowing 15% for vicissitudes. A further amount for a superannuation cushion of $10,000 ought to have been taken into account resulting in a figure of $8,500 after allowing 15% for vicissitudes.

101 In the plaintiff’s Amended Schedule of Damages (marked MFI 2 and placed with the papers in the Court file with the Defendant’s Schedule marked MFI 3), the plaintiff’s counsel identify weekly compensation payments as at 24 April 2001 in the amount of $7,360 and medical expenses in the amount of $3,341 paid by the workers compensation insurer. As far as the first figure is concerned, it seems most likely, and I therefore find that the plaintiff’s solicitor would have advised him, as at April 1999, that he would have had to credit BHP with three-fifths of this amount, namely, $4,500 (round figures). As I understood from MFI 2 that the medical expenses incurred by the plaintiff exceeded $3,341, the amount paid by the workers compensation insurer would have been cancelled out. However, the defendant ought to have advised the plaintiff that the Court would allow the plaintiff something for future medical expenses. At that point in time the available evidence, and the evidence that ought to have been available, would not have supported the possibility of surgical intervention, but it would have made out a claim for ongoing consultations with Dr Sharma, Dr Manohar and a psychologist or psychotherapist such as Mr Guilfoyle. It would have therefore been reasonable to allow $10,000 for such expenses.

102 The difference between $250,000 and $300,000 is that, in arriving at $300,000, I have taken into account that 30% of a most extreme case would have resulted in a figure for non-economic loss of $73,000 and a potential figure for lost earnings of $200 net per week would result in a cushion of $128,000 and a cushion of $9,800 for superannuation.

103 A reasonable solicitor acting in the shoes of the defendant would have advised the plaintiff that if he decided to pursue a claim for damages, he would be giving up his rights to receive lump sum compensation. Based on Dr Manohar’s assessment the lump sum compensation under s 66 of the Act would have been worth $27,400. His claim under s 67 might have been $17,000 or thereabouts. The plaintiff also should have been advised he would be giving up his rights to weekly payments under s 37, s 38 or s 40 of the Act, as well as the right to payment of reasonable medical expenses.

104 A reasonable solicitor would also have advised the plaintiff that if he lost his case against BHP he would no doubt have to pay BHP’s costs. In the circumstances, however, it would have been pointed out that such result was most unlikely, a fact no doubt reflected in the defendant’s concession, accepted by the plaintiff, that the plaintiff’s prospects of success against BHP were 80%.

105 Although Mr Stanton said the plaintiff should have been advised about the impact of solicitor client costs, I do not accept this because there is not a skerrick of evidence about what costs arrangements were in place between the plaintiff and the defendant. The plaintiff was not asked about this in cross-examination and the defendant was not called. For all I know, the defendant could have been conducting the plaintiff’s case on a “no win/no pay” basis.

106 The plaintiff was not asked what he would have done if the defendant had advised him he would receive a certain amount of by way of modified common law damages. Both counsel agreed that such a question would not have been allowed by reason of s 5D(3)(b) of the Civil Liability Act 2002.

107 In light of all the relevant circumstances, I have no doubt whatsoever that the plaintiff would have commenced proceedings for common law damages on the basis set out above. Mr Stanton conceded in cross-examination that very many plaintiffs in these situations look for lump sum compensation. In my assessment, Mr Tupanceski was no exception. Indeed, he was very keen to receive a lump sum and he said he put forward figures of $240,000 and $250,000. The fact that the defendant mentioned figures to Mr Tupanceski of $220,000, $240,000 and $250,000, results in the Court drawing the inference that the defendant, in fact, was mentioning these amounts in the context of a claim for modified common law damages. In so far as counsel for the defendant submitted that the proper context of these discussions was that they must have been about the commutation of the plaintiff’s workers compensation right, I reject the submission. This was not the plaintiff’s evidence. There is no evidence before the Court about how a commutation of $220,000, $240,000 or $250,000 might have been arrived at. Moreover, the defendant was not called and it is appropriate to draw a Jones v Dunkel inference against him on this point.

108 Although I accept that a solicitor in the place of the defendant acting reasonably would have advised the plaintiff that he might lose his job if he sued BHP, I am satisfied that this would not have dissuaded the plaintiff from going ahead with a claim for modified common law damages because, first, I am satisfied the plaintiff wanted lump sum compensation in the order of about $250,000 and secondly, the plaintiff was worried about his prospects of permanent employment because of his disabilities, a fact he disclosed to Dr Chan in October 1998.

109 The Court’s next task is to put a value on the plaintiff’s lost cause of action against BHP. The Court is guided in its approach by the remarks of Brennan J in Johnson v Perez (1998) 166 CLR 351 at 372 as follows:

“If he would have failed in the original action, he has lost nothing; if he would have succeeded, he has lost what he would have received at the time he would have received it; if the action would have been compromised, he has lost what he would have been paid in settlement at the time when he would have been paid. Or, if it is doubtful whether or not he would have succeeded in the action and it is not probable that the action would have been compromised, the court assessing the damages must determine as best it can on the balance of probabilities whether the plaintiff would have succeeded (and, if so, to what extent) or failed.”

110 110As noted above, the parties have proceeded on the basis that the plaintiff would have had an 80% chance of succeeding in his action against BHP. In this regard, Mr Priestley correctly submitted that the Court’s determination of what had been lost should be made with reference to the notional trial date of his action against BHP. He submitted, based on Mr Stanton’s evidence, that the notional trial date should be no later than 24 April 2001. Although Mr Kennedy SC submitted faintly that a later date ought be fixed upon by the Court, both parties asked me to take judicial notice of my own experience with regard to the period of time taken in this Court to deal with personal injury claims arising out of industrial accidents when proceedings had been commenced in 1999. In this respect, my experience is that such claims were dealt with by and large within two years and therefore I accept Mr Priestley’s submission that 24 April 2001 should be treated as the notional trial date.

111 Taking into account the findings I have made of the plaintiff as an honest witness and the findings I have made about the plaintiff’s soft tissue lumbar injury, his impaired sexual function and the high levels of stress, anxiety and depression that he was suffering from based on the medical evidence, including what ought to have been available before 24 April 1999 and before 24 April 2001, I assess the plaintiff’s non-economic loss as 30% of a most extreme case, as at the notional trial date. This results in an amount of $73,000, being included in the plaintiff’s claim for damages.

112 In terms of past economic loss, an allowance ought to have been made for approximately five years lost overtime, say, 250 weeks at $100 per week, resulting in an award of $25,000, on top of which an allowance for $9 per week lost superannuation ought to have been included for the same period, amounting to $2,250.

113 In terms of future economic loss, it still would have been reasonable to assume an ongoing loss of $100 per week for overtime as at 24 April 2001. The plaintiff would then have been aged 41.8 years and so he would have had 23.2 years left in the workforce until he turned 65. For future lost overtime at $100 per week, using a multiplier of 721.2, the amount is $72,120. I arrive at $61,300 after allowing 15% for vicissitudes.A superannuation component referrable to this item should be added in the amount of $5,500.

114 Given the plaintiff’s earnings for the financial year ending 30 July 2001 were $864 net per week, I have made the same assumptions set out in paragraph 101 of this judgment, except that, being more robust about it, based on my own assessment of the plaintiff and the evidence which was or ought to have been available, I consider the figure for lost earnings which would have been accepted by a trial Judge as at 24 April 2001, would have been $250 net per week. I have taken into account inflation between April 1999 and April 2001 in arriving at this figure. In terms of a cushion, based on this figure, I arrive at $180,300, but allowing 15% for vicissitudes, the net result for a cushion for future lost wages and diminishment in earning capacity is $153,255. A further amount for a superannuation cushion of $13,800 (round figures) would have been added by the trial Judge, taking into account vicissitudes.

115 In terms of past medical expenses, the plaintiff’s counsel included an amount of $33,545 in their Schedule of Damages (MFI 2). However, this figure obviously covers medical expenses to date. The figure identified for medical expenses paid prior to the notional date of trial is $3,341 and that is the only amount that ought be included in the plaintiff’s award of damages in relation to past medical expenses.

116 In terms of future medical expenses, I consider there ought to have been available as at the notional date of the trial, evidence similar to that of Dr Giblin concerning the cost of surgical intervention. In addition, because of the plaintiff’s ongoing problems, it would have realistic to allow for consultations with Dr Sharma for the rest of the plaintiff’s working life, and consultations periodically with Dr Manohar and a psychologist or psychotherapist such as Mr Guilfoyle. The plaintiff claims an amount of $20,000 in this respect and I consider that is an amount that the trial Judge would have awarded him.

117 In summary, therefore, the plaintiff would have been awarded the amount of $357,446 by the trial Judge as follows:

Non-Economic Loss $73,000
Past Economic Loss including Lost Superannuation $27,250
Future Economic Loss $233,855
Past Medical Expenses $3,341
Future Medical Expenses $20,000
Total $357,446

118 As conceded by the plaintiff, the following amounts would have to have been deducted from the award:

Weekly Workers Compensation payments made
prior to the notional trial date $7,360

Medical Expenses $3,341
Total $10,701

119 The next matter for determination is the valuation, as at the notional trial date, of the plaintiff’s future workers compensation entitlements. This involves valuing s 66 and s 67 entitlements not taken prior to the notional date of trial, but available to be taken thereafter and calculating the value of any future weekly payments. The latter calculation is to be done using the 3% tables: see Tipper v Williams (No 2) CA 6 May 1994 BC 9404994; Williams v Bodewes (1997) Aust Tort Rep 81/449; State Rail Authority v Smith (1998) 45 NSWLR 382; Medcalf v Perry (2002) 50 NSWLR 211 and Chamberlain v Ormsby (T/as Ormsby Flower) CA 21 December 2005 BC 200511171.

120 Based on Mr Stanton’s evidence, which I accept on this point, the s 66 entitlement was worth $27,400 as at the notional trial date. Although Mr Stanton considered the plaintiff would have received 25% of the amount under s 67, namely $12,500, in my assessment the plaintiff would have recovered $17,000, approximately one-third of a most extreme case. The total of these two amounts is $44,400. This should be deducted from the plaintiff’s damages.

121 Mr Priestley submitted that the Court should adopt a figure $347 per week for workers compensation payments as at the notional trial date. However, this is the current maximum statutory rate for a totally incapacitated worker without dependants under the Act. As the defendant conceded in his schedule of damages (MFI 3), the rate has been less than this but Mr Priestley urged the Court to adopt it because he said the Court should take into account that the figure of $347 per week ignored periods of higher entitlement due to dependants and the first 26 weeks entitlement under s 36. Mr Priestley submitted that the figure arrived at by the Court ought then be discounted by 15% for vicissitudes.

122 On the other hand Mr Kennedy SC urged the Court to adopt a figure of $200 per week. This was an arbitrary figure. Mr Kennedy SC submitted that the Court should discount his figure by 50% for vicissitudes.

123 As at the notional date of the trial, under s 37 of the Act, after the first 26 weeks, the amount of weekly workers compensation for a single worker was $291.10. The maximum weekly amount payable for a dependant spouse was $76.70. The maximum amount payable for a dependant child was $54.80. On the evidence the trial Judge would have been satisfied that there was only one dependant child who most likely would have ceased to be dependant in two years. Likewise, any dependency by Mrs Tupanceski on the plaintiff was likely to be short lived, as turned out to be the case. Mrs Tupanceski gave evidence that she only intended leaving the workforce for a short time whilst the younger child finished school. Such evidence would have been given to the trial Judge.

124 With respect to the submissions made by both counsel, it seems to me that neither approach is correct. Subject to what I set out below, there is no basis for using the s 37 figures because s 37 entitlements only apply to a case of actual total incapacity for work.

125 The evidence demonstrates the plaintiff was on light duties as at the notional date of the trial. Thereafter, I am satisfied that the plaintiff would have remained partially incapacitated for the reasons I have given. The s 37 figures could only be relevant to cap a weekly entitlement under s 40 of the Act, which I will deal with in a moment.

126 So far as s 38 is concerned, I have found that the probability is that beyond the notional date of trial the plaintiff may not have stayed on doing light duties. It is possible that, pursuant to s 38, the plaintiff may have been entitled to maximum payments of compensation for what could be called notional total incapacity. The maximum period allowable was 52 weeks and as the plaintiff had already received weekly payments of $7,360 up to the notional date of trial, it would seem that the plaintiff only had about 25 weeks of his entitlement under s 38 of the Act left over.

127 Upon the evidence it is not possible to say whether or not the plaintiff came within s 39 of the Act.

128 Subject to what I have said about s 38, it follows that the relevant provision for valuing the future weekly payments of the plaintiff as at the notional date of trial is found in s 40.

129 To the extent relevant, I consider it appropriate to apply my findings in respect of economic loss beyond the notional date of trial for common law purposes to the exercise of valuing the plaintiff’s s 40 entitlement. In the light duties that he had as at the notional date of trial the plaintiff was suffering a net loss compared with probable earnings of about $100 per week.

130 I have found that by reason of the plaintiff’s disabilities and problems, if thrust on the open labour market by virtue of the loss of his job with BHP, whilst he might obtain work, it would not be at the same level of earnings that he would have enjoyed uninjured and he may suffer periods of unemployment. Taking those matters into account I arrived at the figure of $250 per week which was reflected in the cushion awarded to the plaintiff to protect him against his diminished earning capacity.

131 Until such time as the plaintiff lost his job with BHP he would continue to suffer a net loss of $100 per week which would translate, for s 40 purposes, to a gross loss of about $150 per week before tax. During the period when the plaintiff earned nothing at all, he would have been entitled to use up the balance of his s 38 entitlement which would have been worth in round figures, about $7,500 gross. Thereafter, in periods when the plaintiff earned nothing at all, he would have had an accessible earning capacity for the purposes of s 40 of the Act and likewise for those periods of other employment when he earned something less than he would have received in his old job with BHP. The average net weekly loss of $250 per week upon which I based the cushion, translates, in my opinion, to an entitlement under s 40, looked at as an average over the period involved from date of notional trial to the date of the plaintiff turning 66 years, of about $320 per week gross. Using a multiplier of 896.9 and after allowing for the amount of $7,500 referred to for the balance of the s 38 entitlements, this results in a figure for the s 40 calculation of $279,500 (round figures). With regard to this figure, taking account of matters referred to in this judgment, it seems to me appropriate, just as Clarke JA did in Tipper v Williams (No 2), for this Court to make a significant deduction for vicissitudes to allow for the uncertainties concerning the amount of workers compensation payments which might have been received in the future. In this case, as well, I have taken into account the possibility, without knowing the exact financial position of the plaintiff, that he would have been liable to pay income tax on the workers compensation payments received by him. I therefore consider it appropriate to deduct 40% from the total figure for s 38 and s 40 entitlements of $287,000 to allow for vicissitudes resulting in the amount of $172,200.

132 A calculation ought be made as at the notional date of trial in respect of the plaintiff’s ongoing entitlement to recover medical expenses. There is no reason why the figure should be any different from the amount of $20,000 included in the assessment of the plaintiff’s modified common law damages.

133 In summary, the plaintiff’s award of damages at the notional trial date is:

Total Damages Assessed $357,446
Deductions
(a) Medical Expenses and Workers Compensation $10,701

(b) SS 67 and 67 entitlements $44,400
(c)Future Workers Compensation Payments $172,200
(d) Future Medical Expenses $20,000
Total Deductions $247,301
Net Award of Damages as at Notional Trial Date $110,145

134 As agreed, the amount of $110,145 is to be discounted by 20% on the basis of the plaintiff having an 80% chance of success against BHP. The result is a figure of $88,116.

135 Next, interest is to be awarded to the plaintiff on the amount of $88,116. The plaintiff claims 10%, the defendant says it should be 9.25%. I agree it should be 9.25% because this represents an average of the Court rates over the last five and half years. Thus, I arrive at a figure for interest for that period in the amount of $44,829.

136 In the result there will be a verdict and judgment for the plaintiff against the defendant in the sum of $132,945.

137 Costs should follow the event on the ordinary basis, but I will entertain submissions if either party wishes to contend for a different order.

138 I direct that the exhibits be retained in the registry for 28 days.

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