Veevers v Coleman
[2013] NSWDC 210
•25 October 2013
District Court
New South Wales
Medium Neutral Citation: Veevers v Coleman [2013] NSWDC 210 Hearing dates: 21/10/2013 - 23/10/2013 Decision date: 25 October 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the third and fourth defendants
Catchwords: Personal injury, pedestrian use of an adjoining property driveway by a tradesman Legislation Cited: Civil Liability Act 2002 Category: Principal judgment Parties: Alan Lee Veevers (Plaintiff)
Christopher Lambie (Third Defendant)
Katherine Lambie (Fourth Defendant)Representation: A Lidden SC and P Kintominas (Plaintiff)
R Gambi (Third and Fourth Defendants)
Brydens Law Office (Plaintiff)
Gadens Lawyers (Third and Fourth Defendants)
File Number(s): 2012/00206356 Publication restriction: No
Judgment
The plaintiff was born in England. He left school after completing his 'O' Levels. These seem to be the rough equivalent of the School Certificate. The plaintiff became a carpenter. He emigrated to Australia in 1994. He carried on work as a carpenter on a self-employed basis.
On 17 May 2010 the plaintiff was injured in the course of his work at No 25 Loombah Street, Bilgolah ("No 25"). The specific place of his injury was on the adjoining property, No 27 Loombah Street ("No 27"). The plaintiff sued the respective owners of No 25 (first and second defendants) and No 27 (third and fourth defendants). The plaintiff resolved his differences with the first and second defendants by way of a Consent Judgment filed on 1 October 2013. The third and fourth defendants will now be referred to as the defendants.
The plaintiff says his injuries were caused by the negligence of the defendants. The action falls under the Civil Liability Act 2002 (the "CLA"). The plaintiff has claimed damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and future paid domestic assistance. The last head of damages was ultimately abandoned.
The defendants denied liability. They also alleged contributory negligence. There is no distinction to be made between the defendants. They were not in residence at the time of the plaintiff's injury. The property was rented to tenants.
The plaintiff's pre-existing health condition
The plaintiff's evidence in chief was generally to the effect that prior to his injury he was quite well, suffering only the occasional "niggle" in his neck and back. He did give evidence of some scans in 2009 but painted a picture of a well man not suffering any impediment that might affect his ability to work.
Under cross-examination the background picture changed somewhat with the revelation that the plaintiff had made, over the years, a number of complaints concerning his neck, back, shoulders and knees.
The following arose from cross-examination based on Exhibit 5: In 1997 the plaintiff saw a doctor and had an x-ray on three occasions in respect of his right knee. In 1998 there were two complaints relating to low back pain including a notation that the plaintiff was "attending chiro for back pain which is improving ...". In 2002 there was a further attendance on the general practitioner for low back pain followed by an x-ray of the lumbar sacral spine. Later in 2002 the plaintiff complained about a swollen left knee.
In June 2004 the plaintiff complained of an injury to his right shoulder. The next day he had an x-ray of his cervical spine. About a month later he returned to the doctor complaining about recurring left knee swelling and pain. This was followed by an x-ray of that knee. In 2006 the plaintiff was back at the doctor complaining about right knee pain. He had an x-ray of both knees and an ultrasound of the right knee. The latter test confirmed a Bakers Cyst. In November 2009 the plaintiff had x-rays of both of his shoulders together with an ultrasound of the left shoulder and a CT scan of his neck. He also had an ultrasound of the right shoulder the following day. In November 2009 the plaintiff had a CT scan of his left shoulder which revealed osteoarthritic changes. The doctor did, however, comment that he had a full range of movement without pain.
I did not, however, form an impression that the plaintiff had been deliberately hiding these matters but rather that he had forgotten them because they were either short-lived or of no major effect on his daily and, especially, working life. I do however think his repeated description of his previous complaints as "niggles" was perhaps giving them less weight than their frequency and description deserved.
The accident
The plaintiff began work at No 25 about five or six weeks before his injury. His work concerned tasks both inside and outside the property. The outside work included the replacing of a deck.
There is a steep driveway for vehicular access to No 27. As at 2010 it was constructed of a concrete and stone mix. The plaintiff called it "pebblecrete". The driveway can be seen in the photographs that were tendered (Exhibits 1, 2 and A and B). The angle of the gradient changed over the length of the driveway but seems to have been about 30 degrees in the relevant area (Exhibit 11, page 8).
Prior to his accident the plaintiff had walked on the driveway on two or three occasions. He had not encountered any difficulties.
On 17 May 2010 the plaintiff was working on the deck. He was wearing "trainers". It was not raining. The plaintiff did not think it had rained the day before. The plaintiff needed to go underneath the deck to inspect the joists. He exited through the gate, which is best seen in Exhibit 1. He walked across a short patch of garden onto the driveway, then downhill and made a left turn to go under the deck. He worked under the deck for about 15 minutes and then emerged as shown by the arrow in Exhibit A and Exhibit B1. Once again he crossed a short patch of garden onto the driveway.
The plaintiff's intention was to return to the deck by walking back up the driveway and through the gate. Contrary to this intention he walked about two metres into the driveway, coming to a standstill within the circle marked in Exhibit B2. He turned and faced downhill. He then felt his feet slipping downwards as indicated in Exhibit B3. He continued down the driveway for three or four metres (T 17.21). I suggested to senior counsel for the plaintiff that his movement at this stage was as if he was on skis. Senior counsel agreed.
As the descent continued over the three or four metres the plaintiff found the speed of his progress was increasing and then his feet went "out from under" him. He fell backwards onto his right buttock and then his right arm and shoulder. He immediately felt a sharp agonising pain in his right shoulder.
The plaintiff was able to get to his feet and then returned to the deck and attempted to continue working.
A significant issue arose during the plaintiff's evidence about whether or not the surface of the driveway was damp. During his evidence in chief he gave this evidence:
"Q. The surface of the pebblecrete driveway, what was it like so far as the moisture was concerned?
A. Dry, as far as I can remember." (T 17.5)
Senior counsel for the plaintiff did not seek any elucidation of this evidence, despite the fact that a damp surface was an integral part of the plaintiff's case. The allegation is contained in the Further Amended Statement of Claim and is also central to the opinion of the plaintiff's expert, Mr Adams (Exhibit F). On the day following the completion of the plaintiff's evidence, with senior counsel now absent, an application was made on behalf of the plaintiff for him to be recalled in respect of the condition of the driveway surface. The application was opposed but I allowed the recall (see my separate judgment).
When back in the witness box the plaintiff's evidence was confused and, to some extent, lacking in apparent credibility. For example, when asked why he had made the error he said that he thought the question related to the weather. Looking at the above quoted passage of evidence there can be no doubt that the weather did not form any part of the question.
As the cross-examination continued, however, it became evident to me that the plaintiff was confused and somewhat flustered by the staccato style of questioning to which he was being subjected. I do not mean this comment by way of criticism of the cross-examiner but simply to explain the course that I then took. I decided to ask the plaintiff some questions giving him ample time to understand what he was being asked and provide an answer. This passage of evidence then occurred:
"Q. Mr Veevers, is your memory that the driveway was damp--
A. Yes.
Q. Let me finish. Just listen carefully. Is your memory that the driveway was damp based on the fact that when you got back up to the deck the deck was damp?
A. No. It's based on the fact that I was stood on the deck and I slipped.
Q. No, you didn't slip on the deck.
A. Sorry.
Q. Driveway.
A. Yes.
Q. Well, we know you slipped, but are you concluding that it must have been damp because otherwise you wouldn't have slipped? Is that the way your mind is working it out?
A. Yes.
Q. Okay, listen very carefully to this question, all right? Because it's important, and if you don't understand please tell me, okay?
A. Yes.
Q. Either when you walked down the driveway to get under the deck or when you went back onto the driveway on your way back up or after you slipped, did you notice anything on the driveway that would suggest it was damp? Putting aside the fact that you slipped. You with me?
A. Yes.
Q. What's your answer?
A. No, I didn't notice anything.
Q. That includes after you had slipped?
A. I don't, I don't remember anything after I slipped.
Q. You were in too much pain?
A. Yes." (T 105)
The new evidence did not substantially advance the plaintiff's case. After he left the witness box there was yet another application to recall him. I again allowed this to happen and he gave the following evidence:
"Q. Do you recall that his Honour asked you whether you noticed anything about the driveway? Do you recall that?
A. Yes.
Q. Is there anything you can tell his Honour as to how you concluded the driveway was damp?
GAMBI: I object, your Honour.
HIS HONOUR: I'm not allowing that question.
Q. Is there anything you want to add to what you said before, Mr Veevers?
GAMBI: Well, with respect, sorry, your Honour.
HIS HONOUR: I know you could object to it but I allow it.
Q. Is there anything you want to add to what you said before?
A. I did, when I eventually got up off the floor and went to wipe myself down, I did notice that the back of my shorts were damp." (T 109)
I found it very difficult to come to a firm conclusion on the plaintiff's evidence about whether or not there was moisture on the driveway surface. The only suggested origin for the moisture was overnight dew. The fall seems to have occurred at about 10am on a dry day so that one would not normally expect the presence of dew to be still on the ground. In addition, the plaintiff's initial answer at page 17.5 of the transcript was clear and given in response to a clear question. The later attempts to rectify the position were replete with confusion and contradiction.
The plaintiff mentioned the dampness in his initial instructions to his solicitor on the telephone (Exhibit G, paragraph 6). However he said that after the conversation he did not go to the solicitors' office but rather went to see Mr Lidden, his barrister. I gathered this led to the production of the Statement of Claim, which did not mention a damp driveway. The same applies to the Amended Statement of Claim. The allegation did however surface in the Further Amended Statement of Claim filed earlier this month.
The onus is always on the plaintiff to prove his case. I do not think, as was suggested by the defendants, that there were deliberate acts of fabrication on the plaintiff's part. However, I cannot find that his evidence about there being moisture on the ground is reliable enough to be accepted on the balance of probabilities. It is also surprising that having noticed the dampness the plaintiff then walked back up the driveway, even if on the edge.
I told junior counsel for the plaintiff during addresses that I did not think his client was dishonest but that I had significant doubts about his reliability. This was not only derived from his evidence about the fall but also his description of his pre-existing conditions. Mr Kintominas responded that the plaintiff's evidence about noticing his shorts were damp could only be a matter of honesty and that if I had concluded that the plaintiff was an honest witness then I must accept this evidence. I do not agree.
In my view there was a significant element of reconstruction in the plaintiff's evidence, which probably played a part in his recollection of events. In addition, even if he noticed his shorts were damp after he fell, this fact of itself does not establish that he slipped because of a damp surface or that the surface was damp where the slip began. The origin of the moisture was said to be overnight dew. Assuming, with considerable difficulty, that it was still present at 10am then one must also consider the extent of moisture that was on the ground. There was no evidence about this or of the amount of moisture that would have been sufficient to cause the plaintiff's feet to come out from under him. It is to be recalled that he was standing still when the slide down the hill began.
When one considers his evidence that he slid on both feet down the hill for a number of metres it seems extraordinary that this could have taken place on a very thin film of moisture. He did not notice any substantial dampness when he walked down the driveway, nor did he notice any when he walked back up after his fall.
The evidence about dampness also adds to the general mystery about the plaintiff's actions immediately before the fall. There is no explanation for the plaintiff, intent on retracing his path up the hill, proceeding across the driveway for about two metres, then coming to a standstill facing down the hill and then sliding on both his feet for three or four metres down the driveway.
It was submitted that it was not necessary to explain his actions. Whatever the reason was, the only important fact was that he fell. I disagree with that submission.
The manner in which the plaintiff fell was very much in issue in the case. On the plaintiff's evidence he fell while standing still. Normally a person would not be expected to slip while in a standing position. I appreciate that this might be the general case on a level surface but even on an incline one would expect there to have been some movement to precipitate the plaintiff's feet commencing the slide. The description of the plaintiff slipping includes him sliding on both feet. Perhaps there was a clump of leaves or a pool of water. If so, there was no evidence to substantiate my speculation.
It is also noteworthy that the history given to Mr Adams (Exhibit E, paragraph 2.1.4) was that as the plaintiff "made the transition from the garden onto the pebbled surface of the driveway, he suddenly felt both of his feet start to slip down the sloping surface of the latter". This is very different to the plaintiff's description in the witness box.
The consequence of my doubts is that while I accept the plaintiff fell and was injured I am not satisfied that he fell in the manner and circumstances that he ultimately alleged. As I have already stated I am also not satisfied that the driveway was damp.
The defendants' oral evidence
The first of the defendants to give evidence was Mr Lambie. He is a Qantas pilot and was an impressive witness. Plaintiff's counsel joined in this observation (T 208.11). He was quick to agree with suggestions put to him in cross-examination where he felt they were correct and he stated clearly when he had no recollection of a matter being put to him.
The defendants had originally purchased No 27 in 2002. They resided, with their children, at the property until October 2005. Over this period the driveway was in the condition depicted in Exhibits 1, 2, A and B. Mr Lambie did not, however, recall the gate and steps being present. He thought these must have been erected after October 2005 when he and his family moved out and the property was rented. The Lambies finally sold the property in April 2012. Mr Lambie could not remember if the gate and steps were present when he inspected the property in 2008. Although the gate was not present up to 2005 there was a fence and access was available from the deck at the position where the gate now exists.
Mr Lambie said that during his residence he maintained the driveway with the occasional use of a gurney and a leaf blower. He accepted the driveway was steep and could be slippery when wet; however he had never slipped nor had he been made aware of any other person slipping. Although he agreed that the surface of the driveway was made up of stones embedded in concrete he did not think that they were particularly smooth or small pebbles. He said that when he walked barefoot on the driveway there was a certain roughness beneath his feet. He distinguished the surface from the small and smooth pebbles in the property's pebblecrete pool.
Mr Lambie said that he frequently took garbage bins up and down the driveway and had never had any difficulties.
In relation to Exhibit E Mr Lambie explained the history behind paragraph 1.7(h). He said there had been an occasion when the teenage son of his neighbours (at No 25) had, with some friends, been rowdy early one morning disturbing him and his wife. He had spoken to the teenager asking him not to use the driveway. He could not recall if he had spoken to the young man's parents. He was, however, aware that a younger brother sometimes used the driveway to access the main road where he caught a school bus.
In final submissions counsel for the plaintiff conceded that no adverse inference could be drawn from Exhibit E.
Mr Lambie said there were no signs warning of any danger but he did not consider that there was any danger requiring notice.
From October 2005 the premises were tenanted through a managing agent. No incidents concerning the driveway were brought to his attention and he left the maintenance of the driveway to the tenant. The inspection reports do not suggest any difficulties or complaints relating to the driveway (Exhibit 3).
Mr Lambie described an incident involving a vehicle. There is no basis upon which this incident could be seen as indicating that the driveway was dangerous for pedestrians.
Mrs Lambie also gave evidence. Her evidence was on similar lines to that of her husband. She said that she had taken bins up and down the driveway, that she had never experienced any problems and that she had allowed her, then two and three year old, children to play on the driveway. The latter point was taken up with enthusiasm in cross-examination. It was put to Mrs Lambie that it would be distinctly dangerous to allow children to play or run on the driveway. She repeated that she had never experienced any difficulties, although I gathered that the children had been supervised and were cautious.
Mrs Lambie described the texture of the driveway surface as "lumpy". She said that when not wearing shoes the surface felt rough underfoot.
Mrs Lambie corroborated her husband's evidence about the background to Exhibit E. She said that there had never been any complaints about the driveway.
After the accident
The plaintiff is left-handed. He attempted to work using this hand only. He found the tasks very difficult and so left the job and sought medical attention.
The plaintiff attended his regular general practitioner who sent him for scans. He was later sent to an orthopaedic surgeon, Dr Sherlock, who ordered an ultrasound and MRI scanning. The plaintiff said he did not notice any low back problems at this stage but he did have a painful neck. He bought a neck brace.
Dr Sherlock suggested operative intervention, which took place at the Mater Private Hospital on 1 June 2010. The operation report is contained in Exhibit C. Dr Sherlock described the operation as an "arthroscopic biceps tenodesis and rotator cuff repair". After a period of recovery the plaintiff was referred for physiotherapy.
In his report dated 16 September 2010 Dr Sherlock noted that the plaintiff had "a degree of post operative adhesive capsulitis". He thought this would slow the plaintiff's recovery but he envisaged further strengthening occurring, which seems to have been the case.
The plaintiff did not work for about 15 months. He received income from a disability insurance policy with Tower Insurance. He was provided with rehabilitation by the insurance company and eventually returned to work in August 2011.
About a week after his return, in August 2011, the plaintiff was using a hand plane on the bottom of a wooden window. He suddenly felt a very sharp pain in his lower back and fell to the ground. He was off work for a few weeks. Since his second return to work the plaintiff has continued without interruption but with limitation in the degree of movement that he has in his right shoulder. As I understood his evidence the plaintiff has been able to work on a fulltime basis but experiences difficulties in the course of his work. There are times when he is unable to secure a heavy weight in order to work upon it or to lift heavy objects. On these occasions he requires assistance. He has not however employed that assistance but rather has sought it from others, such as homeowners, who are able to provide the help.
The plaintiff is currently working and has no retirement age in contemplation. He has, however, found the return to work difficult emotionally. This has arisen from his inability to return to his previous capacity. This has led him to be, in his words, "depressed" and to turn to alcohol for solace. He now drinks a bottle of wine every two days and also has some beer. Before his injury he drank two light beers a day.
The experts and some factual findings
As I have said, the plaintiff relied on expert evidence from Mr Adams. The defendants relied on reports from Mr Keirnan, a civil engineer. Mr Keirnan was cross-examined. Most of the cross-examination concentrated on his opinion at page 13 of Exhibit 11. He agreed with Mr Adams that the driveway was too steep to conform to pedestrian standards but made the point that it was a driveway, not a walkway. He also observed that separate provision had been made for pedestrians.
Mr Keirnan was asked to assume that the plaintiff was not wearing boots but rather was wearing rubber-soled "trainers". Quite properly Mr Keirnan was reluctant to give a firm opinion without detail of the actual shoes worn by the plaintiff but he said that if they had a rubber base which had some give in it then there would be a degree of grip rendering them safe provided the wearer took care on the obviously steep slope.
I have not found the experts' reports of great assistance. Clearly, as they both reported, the driveway was steep and not ideal for pedestrians. They could not comment on the surface because the driveway had been resurfaced by the time they had inspected it.
The experts did not address, no doubt, because of the different history provided to them, the mechanism for a slip that might occur to a person standing still on a sloping driveway.
Both experts were of the view that the driveway would be slippery when wet. I obviously accept that opinion but even if the driveway was wet there still needs to be some evidence of how the accident might have occurred with the starting point being the plaintiff standing still and facing downhill.
I was therefore generally left with the evidence of the witnesses (the plaintiff and Mr and Mrs Lambie) who had had personal experience of the driveway in order to reach any conclusions about its surface, its history of use and its general suitability as a walkway.
Mr and Mrs Lambie painted a picture of a much rougher textured surface than the plaintiff had portrayed. I prefer the evidence of the defendants. They lived on the property for some four years and owned it for over 10 years. Their close association and use of it makes their evidence significantly more reliable than that of the plaintiff whose contact with the driveway was brief and is no doubt coloured, quite understandably, by his unfortunate experience.
I am satisfied that the driveway was "rough underfoot" and not made up of a smooth surface as described by the plaintiff. This is not to say that his description of it as "pebblecrete" is necessarily wrong, rather I simply prefer the description of the surface's texture as given by the defendants.
I also accept the defendants' evidence that neither they nor any other person, to their knowledge, had slipped on the driveway. In addition I accept that they had never received complaints about the driveway being dangerous.
I also accept, and it was not contentious, that the defendants had no notice of the specific use of the driveway by the plaintiff.
Liability
Counsel for the plaintiff, in final addresses, said that he did not rely on a "back up" case that the defendants were negligent even if I did not find that the surface was damp (T 203.21). Although counsel did not agree with the logic of the next step, namely that if I found otherwise the plaintiff must fail, I think that is the only reasonable conclusion. Taken with my rejection of the plaintiff's description of how the accident occurred it becomes more certain that the plaintiff must fail.
It is also important to remember that the plaintiff slipped on a driveway on an adjoining property to his place of work. He chose to use the driveway that he knew to be steep. He had in fact used it on a number of occasions before his fall.
The defendants were not in any way involved in his decision to use the driveway. Their permission had not been sought nor had they any reason to suspect that their driveway would be used as a means of thoroughfare for a tradesman working at No 25.
If I am incorrect in finding against the plaintiff because he has failed to establish that the driveway was damp or that he fell in the manner that he alleges (essentially to prove his case), then I think it necessary that I should consider certain provisions of the CLA.
Turning first to Section 5B I am satisfied that there was a risk of harm to a person who might slip on a steep driveway. I am not, however, satisfied, in this case, that the risk was foreseeable. Firstly, having accepted the evidence of Mr and Mrs Lambie, both as to their personal experience and the absence of any complaint about the driveway being dangerous, I am satisfied that the defendants did not know that the risk was foreseeable. They had lived there for some time, they had rented the premises for a further period and they had bought the house with the driveway in place. They had often used the driveway and seen others use it (for example the neighbour's children) and there had been no experiences that would have given them the knowledge that the risk of harm was foreseeable.
The next question is whether they ought to have known that the risk was foreseeable. At first sight, having regard to the extent of the slope, one might think that a reasonable person would conclude that there was a foreseeable risk of a person falling, in particular if the driveway was damp or covered with leaves or other matter. It is important, however, to recall that this was a driveway and not a walkway. This fact would legitimately affect the perception of the use of the driveway by pedestrians and the attendant risks. This perception would have been enforced by the absence of any problems over a number of years including the actual use of the driveway by pedestrians. I am therefore not satisfied that the risk was foreseeable.
In respect of Section 5B(1)(b), if there was a foreseeable risk then I think it was not insignificant. A person slipping, even on level ground, could well hurt themselves as has been seen in the many slipping cases that come before the courts.
If I had found that the risk was foreseeable I would also have found that the defendants acting reasonably should have taken precautions against the risk. These precautions might have included a sign between No 25 and No 27 warning against use of the driveway as a pedestrian thoroughfare. In reaching this conclusion I have taken into account the matters set out in Section 5B(2). (I note that on my primary findings Section 5B(2)(a) supports the defendants' position.)
If I had found that the plaintiff had satisfied Section 5B then I would have been satisfied that he had also met the requirements of Section 5D. Based on the findings that I am assuming I think that but for the negligence of the defendants the plaintiff would not have fallen.
If I had otherwise found for the plaintiff I would have found that the risk faced by the plaintiff was obvious within the meaning of Section 5F. The plaintiff said that he was familiar with steep driveways both generally and in the area and he had used this particular driveway on two or three occasions. It was obviously steep and if it was damp as alleged then this should have been apparent to him as he had descended the driveway to make the inspection under the deck. On this basis there would not have been any obligation on the defendants to warn of the risk.
In conclusion, the plaintiff has failed both because he has not proved his case and, in any event, he has not met the requirements of the CLA.
Contributory negligence
If I had found liability against the defendants I would have found contributory negligence on the plaintiff's part. As I have said, the slope was obviously steep, the plaintiff was wearing apparently worn shoes and he chose to use the driveway as a means of access. However, based on the finding that the surface was damp, I would have assessed contributory negligence at 20%.
Damages
I will deal with damages briefly because of my finding on liability.
In relation to non-economic loss the plaintiff submitted that 30% was the appropriate percentage under Section 16 of the CLA. The defendant said 20%. In my view the two percentages suggested by the parties reflected the appropriate range of non-economic loss. I think the answer lies squarely in the middle at 25%. The plaintiff, no matter what pre-existing conditions he had, suffered a significant injury to his shoulder which caused him considerable pain for some time, led to surgery and has left him with a degree of restricted movement which affects both his social and working life. I do not accept the view of Dr Schutz that the plaintiff would have come to his current restrictions without the injury. I find that suggestion to be entirely inconsistent with the plaintiff being able to work freely before the injury and within a period of some three years having the severe restrictions that he now has. This is not to say that pre-existing conditions do not play a part but rather that the whole of his current condition cannot be attributed to any pre-existing problems.
To the extent that the plaintiff alleges his neck and back were injured as a result of the accident, in my view these conditions would have only been temporarily involved. I do not accept, as suggested by Dr Ellis, that the back injury in August 2011 was caused by the shoulder injury because the plaintiff was unfit not having worked for some 15 months.
Twenty five percent of a most extreme case is $36,000.
Past out of pocket expenses were agreed at $16,250.
The plaintiff submitted that $20,000 should be awarded for future medical expenses. However, in final addresses it was conceded that this figure was too high, although the $5,000 suggested by the defendant was said to be too low. The plaintiff is having minimal treatment at present but it must be recognised that from time to time he might need painkilling medication or perhaps some physiotherapy. I think the defendants' suggestion of $5,000 is appropriate.
The plaintiff submitted that past economic loss should be assessed at $60,000. The defendants' attitude was that they did not wish to be heard on the matter, which I took to be an acceptance that the plaintiff's figure was correct. Accordingly I would have awarded $60,000 for past economic loss. This loss is supported by the plaintiff's tax returns (Exhibit D).
In respect of future economic loss the plaintiff suggested a loss of $200 per week for the remainder of his working life reduced by vicissitudes of 15%. This produced a total of $64,600. The defendants submitted that there should be no future economic loss because even if the plaintiff had an incapacity it was not productive of economic loss. This was based on the plaintiff currently working fulltime and charging $60 per hour plus GST. The defendants' submission ignores the possibility of him having time off work periodically or from gradually becoming more restricted in the heavy duties associated with being a carpenter.
Had I found in the plaintiff's favour, then for purposes of Section 13 of the CLA I would have concluded that but for the accident the plaintiff would have continued to work until normal retirement age as a carpenter earning an income consistent with his pre-accident levels of income but that he would have been subject to a higher than normal level of vicissitudes as a result of his pre-existing conditions. This would have been 25%. I would however have concluded that because he is working fulltime at the moment that the appropriate way to have approached future economic loss was by way of a buffer. I would have awarded $40,000 to reflect the probability of him having losses in the future based on not being able to do heavy work and having periods of unemployment or less work caused by the shoulder injury.
A table of the damages I would have awarded the plaintiff is as follows:
Non-economic loss
$36,000
Past medical expenses
$16,250
Future medical expenses
$5,000
Past economic loss
$60,000
Future economic loss
$40,000
Total
$157,250
The above total would have been reduced by 20% to reflect my findings on contributory negligence leaving a final sum of $125,800.
Final orders
(1) Judgment for the third and fourth defendants
(2) The plaintiff is to pay the third and fourth defendants' costs of the proceedings
I will hear the parties on any special costs orders that may be requested.
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Decision last updated: 25 October 2013
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