Wayne McCauley v City Steelfixing (ACT) Pty Ltd and Australian Post Tensioning Systems Pty Ltd
[2013] ACTSC 185
WAYNE MCCAULEY v CITY STEELFIXING (ACT) PTY LTD and AUSTRALIAN POST TENSIONING SYSTEMS PTY LTD
[2013] ACTSC 185 (9 September 2013)
NEGLIGENCE – personal injury – where plaintiff sustained back injury in course of employment as steel fixer – previous back injury – no issue of principle
Civil Law (Wrongs) Act 2002 s 45
No. SC 558 of 2008
Judge: Master Mossop
Supreme Court of the ACT
Date: 9 September 2013
IN THE SUPREME COURT OF THE )
) No. SC 558 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:WAYNE MCCAULEY
Plaintiff
AND:CITY STEELFIXING (ACT) PTY LTD
First Defendant
AND:AUSTRALIAN POST TENSIONING SYSTEMS PTY LTD
Second Defendant
ORDER
Judge: Master Mossop
Date: 9 September 2013
Place: Canberra
THE COURT ORDERS THAT:
Judgment for the plaintiff in the sum of $930,795.
There is the usual order as to interest.
Unless any party notifies my associate within 7 days of the publication of these reasons that the party wishes to be heard in relation to costs, the defendant is to pay the plaintiff’s costs of the proceedings as agreed or as assessed.
Introduction
The plaintiff’s claim in negligence for personal injury against his former employer, the first defendant, arises principally out of an incident which occurred on 27 September 2005 when the plaintiff was injured while working as a steel fixer on a construction site in Gungahlin. There is also a claim arising out of an assault by an officer of the first defendant. Finally there is a third cause of action relating to an assault alleged to have occurred on 18 July 2005 when the plaintiff was assaulted by another employee of the first defendant. For reasons associated with the fact that a different insurer was on risk when that event is alleged to have occurred, the parties asked me not to deliver a judgment in relation to that cause of action at this stage.
A claim against the second defendant was settled.
Chronology
The plaintiff was born on 17 January 1972, making him 41 at the time of the hearing. He has a long term partner, Cherie, and two children, Matthew and Jesse aged 17 and 15 respectively.
The plaintiff attended Lyneham High School. He left school at the end of year 10. From about the age of 14 years he worked part-time after school at a local butcher. While at school he also worked at the Lyneham bike shop which was, until recently, located next to the service station in Lyneham and participated in a work skills program at a florist warehouse unloading and loading trucks of flowers.
He was interested in sport while at school. He was a North Canberra representative in cross country, rugby league, rugby union and Australian rules football. After leaving school he continued to play rugby league for East Canberra for two or three years.
When he was 16 and 17, he had an interest in ju-jitsu and obtained a black belt. He was also interested in trail bike riding, pushbike riding, snowboarding, fishing and pig hunting. Those interests continued up until he was at least 20 years old. He continues to pursue his interest in fishing with his sons.
Since the age of six he had ridden motorcycles. That interest started with what he described as a step-through postie scooter and moved on to trail bikes. He currently rides a Harley-Davidson motorcycle.
In 1988, at the age of 16, he commenced working as a labourer and brick maker for Clifton Nubrick in Mitchell. In December 1988 he had a motorbike accident and dislocated his shoulder. He has had continuing problems with his left shoulder since then, suffering a second dislocation in 1989 and a third dislocation in 1994.
In about 1990 or 1991, he commenced employment as a furniture removalist for Ansett Wridgways in Queanbeyan.
On 3 December 1991 he suffered from lower back pain as a consequence of lifting furniture at work. The piece of furniture that he and another worker were lifting had twisted, leading to a sudden increase in the weight that the plaintiff was required to support. He saw his general practitioner, Dr MacIver, on 17 December 1991. He was referred for physiotherapy. He returned to work on 20 January 1992. Dr MacIver thought that the injury involved some “facet joint derangement” and that he would make a “full and complete recovery”. The plaintiff described his back as getting back to normal.
In March 1995 he was injured at work when he twisted his right ankle after jumping or slipping off the back of a truck. In May 1995 he had a right ankle reconstruction by Dr Gillespie.
In September 1996 he suffered an injury at work to the anterior cruciate ligament of his right knee. In December 1996 he had a right knee reconstruction with Dr Woods.
Both of these operations were successful and he continued working as a removalist with Ansett Wridgways. He did however have some ongoing symptoms, particularly in the colder months.
In 1995 and 1996 the plaintiff took up an interest in tenpin bowling. He was a competent player, winning a number of trophies and medallions.
In October 1997 he suffered an injury to his left knee while lifting a piano with another worker. He had previously been treated for damage to that knee in 1992. His 1997 injury involved jarring to the knee and left it with a degree of instability. Dr MacIver diagnosed an anterior cruciate ligament tear and suggested that his prognosis was good if he underwent anterior cruciate ligament repair. The plaintiff was not able to continue with his normal duties and his employment was terminated in December 1997.
After that he obtained work as a labourer with Kane Constructions. That work involved taking copper sheets off the roof of the Australian War Memorial. It was heavy work involving angle grinding the copper and transporting it off the roof. The heaviest type of weight that he would lift would be 60 or 70 kg.
In 1998 the plaintiff made a common law claim against Ansett Wridgways arising out of his injuries at work. This led to a settlement in 1999 of $128,000 of which he received approximately $86,000 in the hand.
In 2000 and 2001 he worked for Rumbles Cranes as a dogger. He did not have problems with his lower back during the period when he was working with Rumbles.
In November 2001 to October 2002 he obtained work with Totalcare erecting road signs. That involved digging holes using a crowbar or a shovel. He did not have trouble with his lower back doing those activities.
In the 2002-2003 financial year his employment then turned to steel fixing. His first employer was S&B Reo which was operated by Stephen Budge. He did this for a little bit longer than a year.
After the catastrophic bushfires in 2003 there was repair work being done on a water facility at Mt Stromlo. The plaintiff was only getting two or three days work per week and, when offered a full-time job with City and Country Reinforcement working on the same facility, he took it. He worked there for seven or eight months. After that he moved to City Steel Fixing (ACT) Pty Ltd, the first defendant.
Steel fixing involves fixing the steel reinforcing required in the construction of buildings prior to the pouring of concrete. It involves bending, lots of low-level work and heavy lifting and carrying. The reinforcing mesh needs to be moved from where it is placed on the site and spread out appropriately in the area where the concrete is to be poured. The standard dimension for the sheets of mesh is 6m long by 2.4m high. Depending on the thickness of the steel such a sheet can weigh up to 100kg. After the mesh is put in place the sheets need to be tied to each other and to the “reo bars” coming out of the concrete. That tying process involves bending over for a long time.
On 18 July 2005 there was an incident where the plaintiff was assaulted. He was training a younger worker and one of the other employees, “Whitter”, walked over and abused the younger worker. The plaintiff told Whitter that it had nothing to do with him, that the junior employee was only a trainee and that he was trying his best. The plaintiff continued working and he saw a hardhat bounce past him and looked up and Whitter swung a punch at him. The plaintiff leant back to dodge it and then Whitter grabbed him by the throat and pushed him backwards. Whitter then pulled out his “nips” (wire cutting tool) and hit him on the back of the head.
The plaintiff attended Calvary Hospital where he had five or six stitches. The incident was reported to police. Subsequent to that the plaintiff was threatened by Whitter.
After the incident the plaintiff made a claim for workers compensation and received some counselling from a rehabilitation consultant. He subsequently returned to full-time duty with City Steel Fixing.
On 26 September 2005 he had been working at a job at the Australian National University. That evening he received a call from Tony, a supervisor employed by the first defendant, asking him to attend a different building site the next day, 27 September 2005. This was not unusual as the company had five or six different job sites and he would, on occasion, be told to change sites in order to assist with the work required at a different site.
The site which he was asked to attend was an Aldi supermarket development. It was a single site but there were different buildings being built on that one site. He had worked on a part of the site a couple of months before.
On 27 September 2005 he turned up at work. Work started at 7am but it was his usual practice to arrive 10 or 15 minutes before. Ian Thomson, known to the plaintiff as “Thommo”, was the supervisor on that job site. The two other employees of the defendant on that site were Stephen Morris and “Jay”. Stephen Morris was known to the plaintiff as “Bingles”. Thommo told them what they were going to do. He said they were going to lay mesh on the first level of the building. This level was accessed by going up scaffold stairs. The mesh was stacked up in the corner where it had been lifted by the crane. There were 30 or 40 sheets of mesh in a bundle. They were the usual dimension for this kind of mesh, approximately 6m long by 2.4m wide. The plaintiff was not sure how much they weighed but thought it was between 60 and 80kg. Thommo and Jay said they would tie in and the plaintiff and Stephen would carry the mesh over. Thommo directed them to start in the far corner and work their way back towards the pile of mesh.
The plaintiff did not observe anybody doing an inspection of the site before they started work.
The plaintiff and Bingles carried the sheets of mesh as they had been instructed to do. To carry a sheet of mesh the plaintiff and Bingles would pick it up. The plaintiff would be up the front, about a metre from the front of the sheet, there would then be a gap of two or three metres and then there would be Bingles. They carried it next to their bodies so that the plane of the sheet was vertical. One hand would be placed low down on the mesh and the hand from the opposite side would be placed higher on the mesh to balance it. At various points across the floor on which they were working steel reinforcing bars, “reo bars”, protruded from the concrete beneath. Reo bars were usually 600 mm high. The practice was to cover any protruding reo bars with a yellow cap. These caps were put on for safety reasons to improve the visibility of the protruding reo bars and have been used in this way on construction sites for around 15 years.
Two or three hours after starting work an incident occurred. As the plaintiff and Bingles were carrying a sheet of mesh across the concrete floor, Bingles tripped on an uncapped reo bar causing him fall to his hands and knees. This caused the sheet of mesh to fall on the plaintiff. The sheet fell over the top of him and made him bend forward so that he had the whole sheet on top of him. He felt pain in the bottom of his back. He did not fall completely to the ground but was bent over and trapped underneath the mesh. Thommo and Jay came over and lifted the mesh sheet off them. After the incident Bingles said he tripped over something and pointed to a reo bar that was sticking up from the deck. The reo bar that Bingles pointed to was only protruding between 100 and 150 mm out of the concrete instead of the usual 600 and had no yellow cap on it. Immediately after the mesh was taken off the plaintiff felt sore in the lower part of his back on the left side.
After the incident the plaintiff sat down for 10 or 15 minutes and had a smoke. He then kept working, carrying sheets of mesh. As the day went on his condition got worse but he did manage to finish the day. Thommo took him down and filled out a form or book in relation to the accident. When he got home at about 3.30pm he had a Radox bath. He thought he had just pulled a muscle in his back. His back was still sore the next morning. His wife put Deep Heat or Tiger Balm on his lower back.
The next day his back was still sore but he attended work as directed at the Australian National University site. At that site the job to be done that day was putting in footings for a lift shaft. That involved building a cage with “U bars” in the middle. It involved carrying 12 mm reo bars in six metre lengths. During the course of the morning the plaintiff’s condition deteriorated. He experienced shooting pain which got more intense as the day went on. He tried to stretch and sit down. At about lunchtime he phoned Tony to tell him that his back was hurt. He had got to the point where he could barely walk and was in such pain that he could not wear the steel fixing belt that he would normally wear. It is not clear whether he went home at that stage or whether he managed to complete the day. On a scale of 1 to 10 he described the pain as 10 out of 10.
When he got home he had a hot bath and was helped out of the bath by Cherie. He took Panadeine Forte.
He saw Dr MacIver the next day, 29 September 2005. Dr MacIver’s notes record in relation to 27 September “[increase] LBP that’s been present for several weeks”. They also record pain spreading to his buttock and left legs although the timing of that spread in relation to 27-28 September is not made clear in the notes.
He was then referred to physiotherapy treatment. He did not immediately lodge a workers compensation claim. The boss, Tom, who the plaintiff understood to be the owner of the company, said he would just pay for doctors and pay him cash in the same way that workers compensation insurer paid him for the time off work. That was apparently motivated by concern in relation to the effect of a claim on the first defendant’s workers compensation insurance premiums. The various reports of the injury required by the workers compensation insurer, QBE, were ultimately completed in October 2005 and submitted to QBE on 11 and 21 October 2005
The plaintiff continued to receive physiotherapy. He described his back as being “stuffed”. He experienced shooting pain down his buttocks and going down the back of his leg.
In the period from the accident until early November 2005 the plaintiff relied on Cherie to perform all normal domestic duties as well as assisting him with getting up and down from the bed, bringing in food, drinks and giving him assistance in going to the toilet.
With the assistance of his workers compensation insurer he received physiotherapy and consulted with Dr Eaton who described him as “very genuine and a keen worker [who] genuinely wants to get his back strong enough to resume his normal work activities”. He also received assistance from a personal trainer. He was treated in accordance with a written rehabilitation plan prepared by his case manager at QBE. He did exercises to strengthen his core muscles and described himself as about 70% better. Dr Eaton reported on 20 March 2006 he had “done extremely well with his strengthening program at the [Canberra Injury Management Centre]” and was ready for a graduated return to work.
On 3 April 2006 he returned to work. He understood that he was to be working with restrictions, doing a little bit of vertical tying, reading the plans and telling the other workers what to do, as well as doing the capping of the protruding bars. He did not understand that he was to be lifting mesh or other heavy lifting. In fact, the plaintiff’s understanding was accurate, the first defendant having suggested to the insurer the range of light duties that were available for him. The plaintiff arrived at work at the usual time of 7 am. The site on which he was to work was one of the Kingston Foreshore developments. He met Tom, whom he described as the owner of the company, at the site. He was pointed in the direction of six other workers who were hanging on to a 36 mm bar in one hand and bending over and tying it in. Tom said “go and tie”. The plaintiff said that he was not allowed to bend over and tie and that was the agreement reached in the document from QBE. Tom then said to him “You don’t want to fucking work. You’re good to take my money, you bastard. You piss off, you bludging”. The plaintiff said that he was not here to be abused, turned around and went to walk off the deck. Tom grabbed him by the back of the hair, spun him round and “kneed [him] in the nuts”.
The plaintiff went to see Dr MacIver that same day. Dr MacIver’s notes record:
As he left grabbed from behind by boss
Kneed [Wayne] in his testicles
V. upset. Anxious
The plaintiff then contacted QBE, the workers compensation insurer. He had a meeting the next day, 4 April 2006, with his case manager at QBE. The meeting was meant to also involve a representative of the defendant. One of the owner’s sons attended the meeting simply to say that the plaintiff was sacked. The plaintiff in fact signed a document indicating that he had resigned from his position with effect from 24 April 2006. He was told by the representative of the insurer that he would continue to get paid until he found a job or they found him a job.
The plaintiff was quickly successful in finding himself another job and on 24 April 2006 he commenced work at Australian Post Tensioning Systems (“APTS”).
The plaintiff got the job by going to see Wayne Hooper, the owner of the business. Mr Hooper knew about his back injury. Notwithstanding this, he offered him a job on a casual trial basis. The plaintiff described himself at the time of accepting the job with APTS as being “70-80%”. In the morning he would have a long hot shower for 30-45 minutes for his back. On a good day he would take a couple of Nurofen before work. He would also do exercises that the physiotherapist had shown him in order to stretch and be able to move his back. The work at APTS involved putting stressing cables into concrete. That involved putting cables through a duct in the concrete and grinding the end off the cable with a grinder. After the concrete had been poured and cured it then involved hooking another machine onto one end of the cable which pulled it tight and stressed it. The plaintiff described it as a “heaps easier job”. He was made full time on 22 May 2006, working five days a week eight hours a day.
The cold winter tended to make his back sorer. He was still working with APTS on 12 July 2006. He started work on that day at about 7 am and was “onioning” the end of a stressing cable. That involved putting a machine on the end of the cable which spread the cable out so that it couldn’t be pulled through the slab. Once that was done he went to the other side and put the jack on the cable and then the hydraulic machine would pull the cable tight. At about 10.15 am he was twisting and bending to pick up a jack that was used to stress the cables and, as he bent down and grabbed it, “something’s just gone twang in my back, sort of thing, like just a sort of sharp stabbing pain”. He described the pain as exactly the same sort of sharp stabbing pain that he had previously described from 27 September 2005. He said it felt like someone was driving a knife down into his buttocks.
He then went to see Dr MacIver and was referred again to Dr Eaton. As a consequence of the aggravation he ceased employment with APTS. His last day of employment was 14 July 2006. He told the insurer, which continued making payments to him and paying for his medical expenses.
After the injury he described the pain as being 10 out of 10 again. He had the benefit of a rehabilitation programme arranged by QBE which involved seeing Dr Eaton, Dr MacIver and attending physiotherapy. In this period Cherie, once again, was responsible for assisting him with almost everything: helping him to the toilet, helping him out of the bath, helping him arranging the pillows when he was lying down. He also said that his son Matthew would also assist him and that situation lasted for two or three weeks.
QBE stopped payments in August 2006, shortly after a new case manager was appointed. A letter dated 23 August 2006 was in evidence. That letter said that because the plaintiff’s condition was an aggravation of his original injury “this incapacity is not covered under your current workers compensation claim and would constitute the lodging of a new workers compensation claim for that aggravation”. It returned medical certificates “in order for you to provide these with the claim form of any new claim that you may wish to lodge”. That was said to be based on a conversation with Dr MacIver of which there was no written record. It was a decision which appears to have been inconsistent with the earlier advice from the physiotherapist at the Canberra Injury Management Centre, Mr Jac Cousins, who reported to the insurer that:
(a) the plaintiff was “vulnerable to relapse”;
(b) that his current job had not contributed significantly to the flare-up;
(c) that he was to be “commended on being active in his own recovery”;
(d) that the plaintiff was not ready to return to work;
(e) that he needed 10 more sessions of physiotherapy; and
(f) that he may need further mediation to reduce the neurogenic/neuropathic wind up of the central nervous system associated with pain.
The letter also returned Dr MacIver’s tax invoice so that the plaintiff could pay it. The plaintiff could not recall receiving the letter but recalled being told in person when he went to see the insurer after his payments were cut off. The decision to terminate his payments came as a surprise to him.
Read carefully, the letter was suggesting that the plaintiff make a new claim for workers compensation. The issue would then have been whether his current employer APTS or his previous employer, the first defendant, was liable to pay compensation. That would depend on precisely the circumstances that gave rise to the current aggravation. Conceivably, the insurers for both employers might have been liable to some extent. Plainly enough, the intention in requiring the lodgement of a new claim was to test the position. None of this appears to have been explained to the plaintiff who simply considered that his workers compensation payments had been terminated. Notwithstanding the submissions of the first defendant, I consider that the plaintiff was relatively unsophisticated in relation to the intricacies of his legal position or entitlement to workers compensation. Reasonably soon thereafter he was distracted by his son’s health crisis and does not appear to have revisited the issue of workers compensation. While the decision of the insurer may have seemed appropriate to the new case manager at the time, the effect of the decision to terminate payments in the manner that it did has been to substantially increase the adverse consequences of the plaintiff’s injuries for him and, consequently, substantially increase the liability of the insurer.
Up until the point at which workers compensation payments were terminated, the plaintiff’s back had been slowly improving. Reports of his progress and motivation were positive. He described himself as being at about 50% of his pre-injury capacity.
Since 2006 there have been what the plaintiff described as “flare-ups”. When a flare-up occurs he suffers from shooting pain and is substantially disabled. He gave as an example of a flare-up an incident when he coughed in the shower. This was the trigger for extreme pain in his back. He was left on his hands and knees in the shower and had to crawl out. The plaintiff gave evidence that “a couple of months ago” he had a flare-up where he was reduced to crawling to the toilet for a couple of days and then after that was able to use crutches that clipped onto his arm in order to assist him to walk. Currently the flare-ups occur about every three or four months. When a flare-up occurs the plaintiff will be incapacitated for between two and four weeks depending on how bad it is. During those periods he is dependent upon Cherie to do all of the house work.
In around September 2006 the plaintiff’s son Jesse became very ill. Jesse was required to go urgently to Sydney where he was diagnosed with, and received treatment for, leukaemia. The family spent, approximately, all of the next year living in Sydney.
Part of Jesse’s treatment involved having a bone marrow transplant. Following the bone marrow transplant he spent around three months in isolation to protect him from infection. The family then returned home to Canberra in 2007. Jesse was, and remains, in remission. There was a period in 2009 when he had to travel to Sydney again for a suspected recurrence of cancer. It turned out to be another condition but one which required cranial surgery.
During the period when the family was in Sydney the plaintiff drew on a fund which had been created by payments made while he was employed with the defendant. That gave him a net benefit of $5,734.14. He also drew on his savings.
The plaintiff was then in receipt of a New Start allowance from the Commonwealth. He was subsequently assessed for, and granted, a disability pension from the Commonwealth.
In 2010 the plaintiff suffered from a period of depression. At that time his drinking increased.
Notwithstanding his injury the plaintiff continues to be engaged in domestic, social and recreational activities to the extent that he can.
a) He has continued to ride his Harley-Davidson motorcycle although not in winter. He goes riding with a friend on relatively short trips. He takes breaks about every 15 minutes because his back starts to get a bit sore. While prior to the accident he might have gone on 500 kilometre rides, the furthest afield that he and his riding partner go is Tarago or Braidwood.
b) Although he still owns his trail bike he does not ride it. He takes his kids out to ride their trail bikes. He maintains their trail bikes.
c) He is able to do minor services on his vehicle although it takes longer than prior to his injury.
d) He mows the lawn although he now takes longer to do so and has purchased different equipment to make it easier.
e) He continues to go fishing with his kids.
f) He has a boat which is a 16 foot fibreglass boat with a 70hp motor on it although he is in the process of selling that because it is too big and heavy to launch and retrieve. He has bought a smaller and lighter aluminium boat with a smaller 30hp motor on it.
g) He has participated in his children’s rugby league club by undertaking a role known as the “League Safe”. That was a role similar to that of an assistant coach. It involved carrying drinks onto the field during the course of the match and giving instructions to the players. It involved running on the field and off again at various times during the course of the game. The plaintiff’s back was aggravated by this but he took drugs to accommodate the pain.
h) He also continues to participate in tenpin bowling. He has modified his bowling action so that it is less vigorous than prior to the accident. He doesn’t do the driving to get to bowling because he takes pain relief drugs beforehand and combined with the alcohol consumed at bowling is in no state to drive.
i) His father is a retired furniture removalist who still has a truck and does some work as a removalist. The plaintiff said that he helps his father with that a couple of times a year. He said he assists with the driving and may assist, for example, with sliding a trolley under a heavy object. He said he did not assist his father with the heavy work.
j) He also assisted his motorbike riding companion to put a granny flat at the back of that friend’s house. While he assisted him on a somewhat irregular basis depending on his condition, he helped design the inside of the granny flat. He denied doing heavy manual work. The friend was one of the people he had borrowed money from a couple of years ago. He said that his friend gave him some money to cover petrol and the beer, around $100 per week.
Between 2008 and 2012 he had obtained various amounts from Shaun Barnes. He said that sometimes he had paid specific amounts and sometimes he had just paid him a round figure. He explained that he made requests for money when his wife, Cherie, asked him to. He described that Mr Barnes had got tired of lending money and as a consequence purchased a motorbike from the plaintiff even though he didn’t really need it. The plaintiff said that in order to try to pay Mr Barnes back he did some work in a business called Chemworks. The work that he was trying to do was the installation of dishwashers. He said he did that a couple of times but could not continue because the work involved getting down low to run the pipes and then getting back up again and it made his back flare-up. This was corroborated by the evidence of his partner, Cherie, who said that Mr Barnes reported, in more colourful language than it is appropriate to set out here, that the plaintiff was not useful installing dishwashers because he could not do the work that was required. The plaintiff was cross-examined about the payments from Mr Barnes and it was put to him that these payments were actually payments for income earned as an employee of Mr Barnes. However the explanation for these payments was corroborated by his partner Cherie and, with the benefit of having seen and heard both of them give evidence and in the absence of evidence to challenge their explanation, I accept the explanation given by the plaintiff and his partner for the payments.
At one stage the plaintiff also considered getting work as a security contractor. The plaintiff mentioned this to Dr Eaton at a consultation in 2012 and the reference to this in Dr Eaton’s report prompted an offer from the defendant’s insurer to pay for such training. The plaintiff has a criminal history involving minor offending conduct. The plaintiff made enquiries of a person that he knew in the security industry who might have been able to give him a job. That person said that with his criminal record he was unlikely to get a security licence. As a result he did not pursue that line of enquiry and did not take up the defendant’s offer. The advice given to the plaintiff was correct. Section 21(2) of the Security Industry Act 2003 precludes the Commissioner for Fair Trading from granting a licence to a person convicted within the previous 10 years of an offence involving, inter alia, assault if the person was fined more than $500. As a consequence of a conviction in March 2011 for assault occasioning actual bodily harm, the plaintiff would be subject to the preclusion in s 21(2).
Although he had obtained a heavy truck licence when he was 18 and working as a furniture removalist, he did not think he could do that kind of driving because of the jarring up and down as a consequence of the motion of the truck and the difficulties associated with taking painkilling medications such as Panadeine Forte and driving.
The plaintiff had considered having surgery on his back. He described his understanding of his doctor’s recommendations about whether or not to have surgery on his back. He said that he wanted to try everything first before considering surgery and that surgery would be the very last option. He was, and remains, particularly concerned about surgery because a relative of his had similar surgery and had a poor outcome from that surgery which made him very cautious about going down that track.
There was some surveillance video of the plaintiff at one of his children’s rugby game performing the League Safe role, working at home on his vehicle and in a shop. This and the cross-examination based on it did not cause me to have concerns about the accuracy of the plaintiff’s evidence as it was consistent with his evidence of variable pain subject to flare-ups and the fact that, with the assistance of drugs, he is as active as he can be.
Medical evidence
Dr Lethlean
Dr Keith Lethlean, a consultant neurologist, reported on the plaintiff on 1 June 2007. He diagnosed a lumbosacral disc injury, left S1 radiculopathy. He noted limited improvement with conservative treatment. He said the plaintiff remained with a partial-severe incapacity, restricted for most employment activities. In his view the longer term prognosis remained uncertain. He said that the condition would continue for an indefinite period, was uncertain whether a graded exercise rehabilitation programme would be successful and noted that the possibility of surgery was real. Dr Lethlean did not give oral evidence and was not required for cross-examination.
Dr Bodel
Dr James Bodel, an orthopaedic surgeon, reported on the plaintiff on 21 February 2011 and 22 May 2013. In his 2011 report, he recorded that the plaintiff had a significant disability as a consequence of back pain and left-sided sciatica which was a consequence of his work injuries. He said he remained unfit for pre-injury work. He noted that he had not been able to access appropriate treatment and needed to consider a return to physiotherapy and may need to consider alternative treatments which could include surgery. He said that there was a chance of further improvement with appropriate treatment. He said that the cause of the disc rupture was the injury on 27 September 2005 and that the subsequent episode on 12 July 2006 involved a recurrence of that injury. In his report of 22 May 2013 he noted that the clinical signs confirm persisting radiculopathy in the left leg although it has lessened a little over time. He thought that the plaintiff should be referred to a neurosurgeon as surgical decompression may well assist him.
He did not give oral evidence and was not required for cross-examination.
Dr Seneviratne
Dr Janaka Seneviratne, a consultant neurologist and clinical neurophysiologist, reported on the plaintiff on 2 July 2013. The plaintiff denied any pre-existing back pain prior to the current injury or any previous history of other back injuries. Dr Seneviratne reported that the symptoms and ongoing disabilities remained the same as that reported to Dr Lethlean and that those injuries related to the September 2005 and July 2006 accidents. He reported that the plaintiff had a partial incapacity to work and could take part in modified duties with restrictions on lifting not more than 5 kg in weight, restrictions on frequent pulling/pushing and bending manoeuvres and restrictions on standing for prolonged periods of time. The doctor recorded that the plaintiff had not received the full appropriate treatment and should receive local cortisone injections to the left L5 S1 nerve roots to see whether this would improve his symptoms and should be reviewed by a spinal surgeon for a surgical opinion as well.
Dr Seneviratne did not give oral evidence and was not required for cross-examination.
Dr Eaton
Dr Garth Eaton, an occupational physician, treated the plaintiff in 2006 in his capacity as a medical consultant to the Canberra Injury Management Centre. He also prepared three reports for the purposes of these proceedings. Those reports were prepared in 2011, 2012 and 2013.
The 2011 report reported on the plaintiff’s consultations with Dr Eaton in March, June and August 2006. He diagnosed a work-related injury resulting in L5/S1 disc prolapse and S1 nerve root compromise (resolving). His report was quite positive having regard to the progress that he observed up until August 2006. He made reference to his successful referral of the plaintiff to Mr Jac Cousin for physiotherapy and strengthening. He said that it was likely that the plaintiff’s condition would be stable and adequately managed and controlled. He said that he may now have a degenerative disc at L5/S1 and it is possible that there may be some discogenic pain particularly with excessive physical activity. On the other hand there may be no ongoing pain and the plaintiff may have full function.
Dr Eaton’s second report of 7 July 2012 followed a consultation with the plaintiff. That examination revealed that the plaintiff’s back movements remained severely restricted. He noted wasting of the left leg compared to the right and said that the plaintiff had ongoing symptoms that were consistent with the disc injury previously diagnosed. He thought that the plaintiff’s condition was permanent with a high probability of continuing disability. He said that “it would not be surprising if there is some tethering of the affected nerve root due to scarring”. He could not rule out surgery in the future.
Dr Eaton saw the plaintiff again in June 2013 and prepared a report dated 7 July 2013. In that report Dr Eaton recorded, consistently with his earlier reports, that the injury on 27 September 2005 was the most significant injury with regard to his ongoing back pain, left buttock and leg pain which has been consistent with an L5/S1 disc injury and S1 nerve root compromise. He said that the plaintiff has a back condition with which he should take reasonable care and be cautious about activities which could place undue strain on his spine. He should not work in any position which requires heavy lifting, the maximum appropriate lifting weight would be an occasional lift of between 10 and 15 kg. He would need to avoid repetitive lifting and extreme bending or activities where he is twisting his spine. He said it would be difficult to find work in a position where he had to stand all day and it would be preferable if he worked in a situation where he was able to vary his posture frequently and stand and sit at will. In this respect his report was very similar to that of Dr Burke. He thought that he did not need further treatment unless there was a flare-up but that he would be best advised to continue with an appropriate exercise regime. He thought that surgery was not likely to be required.
In oral evidence Dr Eaton explained the concept of neuropathic windup which has the consequence for sufferers of chronic pain and that the actual threshold for symptoms is lowered. He explained that scarring and chemical neuritis may be causes of pain where there is a permanently damaged disc. He gave evidence about the 2013 MRI and said that his observation of the films indicated that there was a very degenerative disc, notwithstanding the report by the radiologist who said that there had been no progression since 2010 and that the situation was essentially stable.
In cross-examination he was asked about the significance of desiccation of the disc recorded in the reports of the 2005 and 2010 MRIs. He said that a desiccated disc could be symptomatic and that it was more usually a sign of natural wear and tear rather than an indication of injury on its own. The facts of the December 1991 incident were put to him and he said that if there had been a significant problem with the L5/S1 disc then it was likely that leg pain would have been recorded. He said that it was hard to determine whether the 1991 injury involved an injury to the disc. He thought that the best guide was the treatment required and the time off work. He agreed that the injury could have involved L5/S1 but that it was difficult to say without scans whether or not that was the case. He said that if there was disc involvement there would normally be leg pain. He did not think that the injury explained desiccation of the disc which he thought could result from wear and tear and was not, on its own, an indication of injury. He agreed that it was a possibility that the injury on 27 September 2005 was an aggravation of a pre-existing degenerative process but thought that it was going too far to say that it was more probable than not. He thought that the forces and twisting involved in the 27 September 2005 incident were such that they could even damage a healthy disc. He said that if there had been a significant injury in 1991 then it was likely that there would have been pain throughout the period between the 1991 incident and the 2005 incident. He said it was “most unlikely to have a massive gap” such as occurred in the present case. He accepted that it was a possibility but not a probability that the September 2005 incident involved an aggravation of a pre-existing degenerative condition. He agreed with the proposition that a person doing a job such as the plaintiff was doing would be likely to pull back from such heavy physical work in their late 40s or early 50s.
He was asked about the capacity of the plaintiff to do various jobs having regard to his observed capacities and the effect of pain and drugs on the plaintiff. In particular he was cross-examined about the capacity of the plaintiff to perform work such as a courier, lawnmower repairer or motor bike and car salesmen. He expressed some concerns about the capacity to be a lawnmower repairer having regard to the likely necessity to lift the mowers. He also expressed some concern about working as a courier both because of the driving involved and the need to avoid drugs involving codeine. He accepted that there were other drugs which were alternatives to codeine but the tolerance of any individual to those drugs was variable. He thought that the plaintiff could do a sales job. In relation to any job he said that a work trial would be necessary to see whether it was possible. He had a positive view of the plaintiff’s motivation to obtain employment.
Notwithstanding the plaintiff’s motivation to return to work he said that “statistically the future is very bleak”. He explained that this was because of the damage to his disc, the fact he suffered from entrenched pain, the fact that there was some neurological windup and his likely unreliability in employment as a consequence of his back pain flaring up. He said that even if the plaintiff was not able to return to work he was likely to achieve some improvement in quality of life through treatment such as that offered by a centre such as the Canberra Injury Management Centre.
He said he would have to be very lucky to be able to be rehabilitated back into the workforce find a suitable position with suitable duties and would need the benefit of work trials in any job to see how he would cope.
Dr Stevens
Dr Bruce Stevens produced two reports in relation to the plaintiff, the first dated 10 December 2007 and the second dated 26 May 2013. Relevant to the injury suffered on 27 September 2005, the diagnoses that he made was of Pain Disorder Associated with both Psychological Factors and General Medical Condition with mild symptoms and Major Depressive Disorder recurrent with mild symptoms. The report contained another diagnosis not relevant to the causes of action upon which I have been asked to give judgment. The 2013 report was an update report generated with remarkable efficiency after a consultation of only 20 minutes. As a consequence of that consultation he revised the pain disorder diagnosis to one with moderate to severe symptoms, revised the depressive disorder diagnosis to moderate symptoms and added a new diagnosis of Alcohol Dependence. Dr Stevens said:
I would now consider him disabled and incapable of returning to paid employment. This is the result of chronic pain, depression, some symptoms of trauma and now his alcohol dependence. I see no reason for this unhappy picture to change in the future.
Dr Burke
Dr Nicholas Burke, an occupational physician, prepared two reports. In his first report, dated 20 April 2010, he said that the level of pre-existing degeneration was difficult to elucidate. He said that in the absence of pre-incident symptoms it was probable that the 2005 incident did result in the development or significant aggravation of the protrusion at L5/S1. He said that the plaintiff had a permanent disability which was likely to gradually improve over time.
His second report of 29 January 2013 is the one of more significance. For the purposes of that report he was briefed with the notes of Dr MacIver relating to the back injury in 1991. In his 2013 report he noted a 2010 MRI showing disc degeneration with no evidence of neural compromise. That contrasts with his earlier report in which he had referred to an MRI of 1 November 2005 which showed a lumbosacral disc prolapse towards the left displacing and almost certainly compromising the left S1 nerve root. He noted some wasting of the left leg when compared with the right.
He was asked, in particular, about the significance of the 1991 incident in assessing the likelihood that the plaintiff would have suffered some disability as a consequence of the aggravation of degenerative changes in his spine even without the 27 September 2005 accident. Dr Burke’s diagnosis was probable soft tissue injury with the aggravation of pre-existing degenerative change. He said that the original incident had essentially resolved. He thought that the incident on 13 July 2006 was a further aggravation of the underlying degenerative change. He thought that the plaintiff would benefit from a further MRI scan and a program of exercise/conditioning likely to cost around $5000. He expected an improvement in disability with time although there would be ongoing symptoms and disability associated with “provoking activities”. He thought the plaintiff would be able to work in a position which allowed him to move between sitting and standing, avoid repeated bending, repeated twisting and heavy lifting greater than 10 kg. He said he had a significant underlying degenerative condition in his lumbar spine. He thought that the MRI of 1 November 2005 was consistent with a longer lasting degenerative change and that it was possible that if he did suffer a disc lesion at L5/S1 in the past this would have contributed to the MRI findings of 1 November 2005. He said that because of the pre-existing degenerative change in his spine he would have been at risk of aggravation of that underlying degenerative condition and that the risk would have been quite significant if he was working in a highly physical and demanding position. He thought that it should have been possible for the plaintiff to have returned to work in 2006. He expressed a negative view about the plaintiff’s motivation to return to work.
In oral evidence he was asked more about degenerative change. He agreed with the proposition that the existence of desiccation in the disc reported in November 2005 indicated that there was some degeneration prior to the injury on 27 September 2005. The additional aspects of the plaintiff’s history namely the twisting back injury in December 1991 and the report of low back pain being present for several weeks prior to seeing Dr MacIver on 29 September 2005, were put to the doctor. He agreed that it would be more probable than not that there had been “some injury” to the L5/S1 disc sometime before September 2005. As a consequence he assessed the plaintiff as having an increased risk of the development of symptoms and further aggravation as a consequence of the significant physical demands associated with being a steel fixer.
In cross-examination he disagreed with the proposition that if the 1991 incident was “significantly symptomatic” it would have involved leg and buttock pain. He said that was only the case if there were some radicular component to the condition. Further, he disagreed with the suggestion that there would necessarily be continuing symptoms from the 1991/1992 incident if it involved an issue with the disc. He said that it was possible that the disc injury healed and became quiescent. He agreed that if the person was truly asymptomatic over a lengthy period then it became less likely that there was an earlier injury. However if there had been symptoms over the period he would very much disagree.
Other doctors
The defendant had the plaintiff examined by two other doctors, Dr Talbot and Dr Stubbs but chose not to serve the reports of those doctors.
Conclusions on medical evidence
The medical evidence establishes that the plaintiff suffered a significant disc injury in the incident in September 2005 which was aggravated in July 2006. While the state of the disc appears to have stabilised I accept Dr Eaton’s evidence that it is a degenerate disc and that the plaintiff is likely to continue to suffer pain from the damage to the disc even though the 2010 and 2013 MRIs show no frank neural compression. The evidence does not establish that the 1991 accident involved any significant damage to the L5/S1 disc. Had there been such damage it is likely that in the 13.5 years there would have been a need for treatment of back pain which is disclosed in the medical records. The only doctor who dealt with the plaintiff at the time, Dr MacIver, considered that the injury involved some derangement of the facet joints rather than disc injury. In my view, the retrospective assessment by Dr Burke involves a degree of speculation that goes beyond what the evidence establishes. Therefore I do not accept that there was some clear disc injury in 1991, which meant that what occurred in September 2005 was an event which was likely to occur at some stage in any event. Nor can I find that there was underlying degenerative condition which would have manifested itself in any event. While the disc desiccation observed in the MRIs could be the result of a specific injury, it could also be a result of normal wear and tear and have remained asymptomatic in the absence of an injury such as that in September 2005. However, I do accept Dr Eaton’s evidence that it is likely that the plaintiff would not physically have been able to keep up the heavy work involved in steel fixing or some equivalent occupation beyond his late 40s or early 50s. That evidence is consistent with the nature of the work and, in the plaintiff’s case, made clearer by his history of injuries to knees, ankles and back. With a history of heavy physical work and injuries he was likely to “wear out” sooner than a worker in a less demanding job.
I accept Dr Eaton’s evidence about the difficulties facing the plaintiff in obtaining employment in the future as a result of his various limitations and the requirement to take drugs to manage his pain. While each of Drs Eaton, Bodel, Lethlean, Seneviratne and Burke recognised that the plaintiff had the capacity to perform light work under certain conditions, I accept the evidence of Dr Eaton that obtaining employment with those limitations and requirements will be difficult, particularly for someone who has been out of the workforce for so long with an entrenched pain condition.
Balanced against this is the fact that with access to funds the plaintiff will be able to receive medical treatment and rehabilitation to both reduce his symptoms and manage his pain. Drs Eaton, Seneviratne, Bodel and Lethlean recognised that there was potential for further medical treatment, short of surgery, to improve his condition.
I do not accept Dr Stevens’ opinion that the prospect of psychological improvement is as bleak as he sets out. In my view, notwithstanding the poor indicators that he set out, with the litigation behind him and the resources to rehabilitate himself the plaintiff’s mental state is likely to improve in the short term and be manageable in the longer term.
Liability
Although the defendant filed a defence based on a denial of liability in relation to the incident on 27 September 2005, in final submissions counsel for the defendant said he did not wish to make any submissions on this issue. Based on the report of Mr Ian Burn, dated 10 April 2013 I am satisfied that the defendant was negligent in that it failed to undertake an inspection of the site to identify hazards such as the uncapped reinforcing rod and take steps to eliminate the hazard. I am also satisfied that the negligence of the defendant caused, in the sense required by s 45 of the Civil Law (Wrongs) Act 2002, the injury to the plaintiff.
In relation to the assault on 3 April 2006, the first defendant did not make any submissions as to liability and I find that the defendant was negligent in permitting the plaintiff to be assaulted in the circumstances that he was.
General damages
Prior to the accident the plaintiff was an active and very fit man. He enjoyed hard work and physical recreation.
Since the initial period after the accident the plaintiff has suffered ongoing back pain with periods of intense disability caused by temporary aggravations of his condition. He is likely to suffer ongoing back pain and acute flare-ups for the rest of his life, although some improvement may be possible with further rehabilitation. While those flare-ups are disabling, when not in an acute phase the plaintiff has been able to manage his pain and achieve a degree of normality in his life, notwithstanding his pain, the requirement to take drugs and the inability to obtain employment. In relation to general damages I assess these as being $90,000 with $50,000 attributable to the past.
In relation to interest it is now almost eight years since the accident. Proceedings were commenced in July 2008 and a certificate of readiness was only filed in June 2012. In my view a reasonable allowance for interest would be based on a delay of no more than two years between commencement of proceedings and the filing of a certificate of readiness. Adopting this approach gives a period of almost six years rather than eight years during which interest will be awarded. This gives an interest of $5916 (2% x 5.916 years x $50,000).
In relation to the assault by the director of the first defendant, the first defendant submitted that the general damages for this must be assessed in the context of a man who was not unaccustomed to physical violence and which was simply a passing, unpleasant experience without any longer term injury. I accept that the impact of the assault was short term and award $2000 as general damages and interest of $433 (4% x 5.416 years x $2000).
Out of pocket expenses
The past out of pocket expenses were agreed at $17,838.01. Those were paid by the workers compensation insurer except for an amount of $7425. Adopting the approach outlined above and the rates under rule 1616(5) I will award interest on that component of the past out of pockets in the sum of $1280.
The parties agreed that an appropriate buffer in relation to future pharmaceutical costs was $25,000.
In relation to other medical expenses, Dr Eaton thought that costs would be minimal because the plaintiff’s exercise program would largely be self-managed. Dr Burke said he would benefit from an ongoing exercise/conditioning program which would cost around $5000. Other doctors have suggested further treatment. Having regard to the plaintiff’s views about surgery it is unlikely that he will pursue that.
In the short term there is likely to be the need for some of the investigation and rehabilitation that ceased in 2006. In the longer term, he is likely to require additional visits to his GP, physiotherapy and radiology. There is the possibility of further treatments that have been suggested in the doctors reports. Recognising the uncertainties I will award:
(a) additional visits to his GP ($210 per annum, multiplier 1284 less vicissitudes at 15%: $4387;
(b) an amount of $5000 equivalent to that suggested by Dr Burke for rehabilitation, exercise programs or pain management education;
(c) a buffer for future physiotherapy, treatment or investigations of $10,000.
I have not included any separate amount for surgery or lifetime gym membership as these are not justified on the evidence.
Loss of earning capacity
The plaintiff approached the matter from the starting point of Dr Eaton’s reports and Dr Stevens’ most recent report namely that the likelihood would be that the plaintiff would not have a future earning capacity.
The defendant submitted that I should award a buffer to address the loss of future earning capacity because the plaintiff, with these proceedings behind him, was likely to be able to get some form of employment. He had demonstrated an intention and a past history of being able to obtain employment notwithstanding a degree of incapacity. In the alternative, the defendant submitted that if loss of future earning capacity was to be assessed on the basis that it would continue until retirement age then it should be subject to a very significant discount by reason of the possibility that the plaintiff would obtain, one way or another, a source of income.
The defendant submitted that in assessing past and future economic loss it was important to take into account the fact that the disc in the plaintiff’s back was not pristine at the time of the 2005 accident. Rather, it had degenerated to some extent because of one or other or a combination of the 1991 accident, the plaintiff’s genetics or the stresses and strains of the very hard work involved in being a removalist and steel fixer. The defendant submitted that as a consequence, even without the effect of the 2005 accident, the plaintiff was unlikely to be able to continue in hard physical labour beyond his late 40s or early 50s. That is consistent with my findings above.
Further, the defendant submits that the plaintiff has not made appropriate efforts to regain employment after his return from Sydney in 2007. He submitted that he fell into a “compensation mentality” from that time. For the reasons that follow, I do not accept the submission that the plaintiff fell in to a “compensation mentality” or failed to mitigate his loss so as to warrant any reduction in damages. Following the termination of workers compensation payments in 2006 the plaintiff spent approximately one year in Sydney dealing with his son’s health condition. In my view, even if the plaintiff had been engaged in full-time employment, it is likely that he would have “dropped everything” and moved to Sydney in order to deal with that crisis. As a consequence, even in the absence of the 2005 injury the plaintiff would not have earned money during that period.
As to the position when he returned from Sydney in 2007, I am satisfied that his failure to obtain work at that stage was a consequence of the accident and not a consequence of his lack of effort to obtain employment. During the period when he was in Sydney there is no doubt that the chronic and difficult nature of his back condition was demonstrated to him. He gave particular evidence about the incident when he coughed in the shower while staying at Ronald McDonald House and was struck down by back pain to the extent that he needed to crawl from the shower. His wife also gave evidence, possibly relating to the same incident, that it took him approximately two hours to travel the 150 metres from his residence to the hospital ward when he was in that condition.
From 2007, the difficulty for the plaintiff in terms of employment was that he had a history of heavy manual labour, no education beyond year 10, a chronic back injury which occasionally but unpredictably created disabling back pain and no pool of funds which he could draw on for significant rehabilitation or retraining. In those circumstances whilst the plaintiff might, in theory, have been able to do more, I am satisfied that his losses during that period were attributable to the accident.
In the future the plaintiff is likely to be stuck with a disabling back injury which prevents him returning to the work he has done in the past and which will create a very significant barrier to employment in other areas. He has the physical capacity to do light work but his history of back injury and the restrictions and limitations on appropriate work are likely to make it difficult for him to obtain and maintain employment. Notwithstanding the defendant’s efforts, reflected in the reports of vocational assessments by employees of Recovre Pty Ltd, the plaintiff’s capacity to perform the jobs identified will be limited by restrictions on lifting, sitting, standing and driving as well as the plaintiff being a poor fit for customer service roles. On the other hand, the plaintiff has demonstrated himself to be motivated to return to some form of productive employment.
In my view, the appropriate means of assessing damages for future economic loss is to make an award damages until the age of 67 but to apply a significant discount to take into account not only the normal vicissitudes of life but also:
a) the possibility that even without the September 2005 accident he would have suffered an injury or disability arising out of previous injuries or a completely new one;
b) the possibility that, with access to rehabilitation and a pool of funds, the plaintiff will be able to return at some time or times to remunerative activity.
In adopting this approach I have had regard to the first defendant’s submission that having regard to the heavy physical nature of the work and the wear and tear previously suffered by the plaintiff’s body, he would be unable to continue as a steel fixer beyond his late 40s or early 50s. While that may be the case, in the absence of the injury suffered by the plaintiff, he is likely to have been able to achieve an orderly transition to some other, less physically demanding work and hence the change in the nature of his occupation would not, in the absence of some disabling injury, have been productive of financial loss.
Having regard to the above factors, in my view the appropriate discount to be applied in relation to future economic loss is 40%, plus an allowance for general vicissitudes of 15% making a total of 55%.
In assessing the quantum of both past and future economic loss, the plaintiff submitted that the rates payable to a steel fixer in the position of the plaintiff have increased since 2005 and that any award for past and future economic loss should be based on those increased rates. I accept the plaintiff’s submission. However I also accept the defendant’s submission that his earning capacity needs to be assessed having some regard to his history of employment rather than simply the two highest earning years, one of which includes a significant element of workers compensation payments.
Both parties proceeded on the basis that the increases in the rates applicable were 22% over the period since 2005. This was based upon a comparison of the plaintiff’s payslip from 23 March 2005 which showed a rate of $26.93 per hour compared with a rate set under a current collective agreement approved under the Fair Work Act 2009 (Cth) and applicable from 1 March 2013 of $32.85 per hour. That collective agreement discloses a rate of $33.55 applicable from 1 September 2013. Exhibit 8, the October 2005 workers compensation report of injury, gives rise to the possibility that the hourly rate applicable to the plaintiff may have increased between March 2005 and the date of the accident. Notwithstanding these differences and uncertainties, since the submissions of both parties were based upon a 22% increase over the relevant period and Exhibit 8 is not conclusive as to the hourly rate payable, I will base my assessment on a 22% increase over the period.
Averaging the plaintiff’s income over the four financial years prior to the financial year of the accident gives an average of $38,000 gross rather than the $51,252 earned in the financial year 2004/2005. While some account must be taken of the uncertainty of employment in a relatively low skilled role in the construction industry, account must also be taken of the fact that by obtaining work as a steel fixer the plaintiff had improved his overall income. Balancing these factors, I adopt a gross figure of $42,000 per annum as his earning capacity at the time of the accident. That is an equivalent of net income of approximately $33,000 which, increased by 22% is, in round figures, $40,260 or $775 per week.
In terms of past loss, adopting an average figure of $36,630 ($33,000 increased by 11%) for the whole of the period from the end of September 2005 to date but excluding the year when he was in Sydney (6 years 11 months in total) gives a past loss of $253,357. Having regard to the delay in the prosecution of the case I will allow interest on the past loss up to September 2011 in accordance with r 1616(5) which is, in round figures, $42,500
Superannuation on the lost earning at 11% of the net figure is $27,869.
In relation to future loss, based on 26 years this gives a multiplier of 947 and a total loss of future earnings of $733,925. To this must be applied a discount of 55% identified above which gives a figure of $330,266.
On this net figure I will allow superannuation at 11% which gives $36,329.
Fox v Wood
The total workers compensation payback was $38,638.74. This included a wages component of $28,225.59. The parties agreed that an appropriate Fox v Wood component was 15% of this figure, namely $4234.
Domestic assistance
The amount claimed in the statement of particulars was for an amount equivalent to 8.2 hours of care at $25 per hour for a period of six weeks after the accident as well as assistance when the plaintiff’s condition flares-up (an average of 12 weeks per year). The defendant did not contend that the amount claimed in the statement of particulars and brought up to date was inappropriate. I will allow an amount of $22,755 on this basis.
In relation to the future it is likely that even with improved access to rehabilitation there will continue to be flare-ups of his condition. The amount claimed by the plaintiff is claimed on the same basis as for the past (that is, 12 weeks per year at $205 per week) with a 15% reduction for vicissitudes and I will allow that except using a life expectancy of 44 years and hence a multiplier of 1284, giving $51,631. In my view, the possibility that with rehabilitation the frequency of flare-ups will reduce is balanced by the possibility that a return to work of some sort will provoke flare ups more frequently.
Summary of damages
In summary the damages to which the plaintiff is entitled are as set out below.
General damages (back injury) $90,000
Interest $5,916
General damages (assault) $2,000
Interest $433
Out of pocket expenses
a)past $17,838
b)interest $1,280
c)future $44,387
Loss of earning capacity
a)past $253,357
interest $42,500
superannuation $27,869
b)future $330,266
superannuation $36,329
Fox v Wood $4,234
Domestic assistance
a)past $22,755
b)future $51,631
Total $930,795
Orders
The orders that I make are:
1. There will be judgment for the plaintiff in the sum of $930,795.
2. There is the usual order as to interest.
3. Unless any party notifies my associate within 7 days of the publication of these reasons that the party wishes to be heard in relation to costs, the defendant is to pay the plaintiff’s costs of the proceedings as agreed or as assessed.
I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 9 September 2013
Counsel for the plaintiff: Mr I D Bradfield
Solicitors for the plaintiff: Capital Lawyers
Counsel for the defendant: Mr R L Crowe SC
Solicitors for the defendant: Dibbs Barker
Date of hearing: 22, 23, 24, 25 July 2013
Date of judgment: 9 September 2013
0
0