Wells v EAP Operations Pty Limited - [2003] NSWSC 265

No judgment structure available for this case.

CITATION: Wells v EAP Operations Pty Limited [2003] NSWSC 265 revised - 7/05/2003

HEARING DATE(S): 4, 5, & 6 March 2003

JUDGMENT DATE:
7 April 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: The Court orders that; (1) The defendendant pay to the plaintiff the sum of $658,830.61; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS: Personal injury - contributory negligence - assessment

CASES CITED: Burnicle v Cutelli [1982] 2 NSWLR 26
Froom v Butcher [1976] QB 286 Denning MR at 292-293
Griffiths v Kerkemeyer (1976) 139 CLR 161
Gunning v Fellows (1997) 25 MVR 97, Beazley JA at 99
Malec v J C Hutton Pty Limited (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306 at 315
Pennington v Norris (1956) 96 CLR 10 at 16
Sullivan v Gordon (1999) 47 NSWLR 319
Sungravure Pty Limited v Meani (1964) 110 CLR 24 Windeyer J at 36
Van Gervan v Fenton (1992) 175 CLR 327

PARTIES :

Ian James Wells
(Plantiff)
EAP Operations Pty Limited
(Defendant)

FILE NUMBER(S): SC 20165/2002

COUNSEL:
Mr R Letherbarrow SC with
Mr R Taylor
(Plaintiff)
Mr J McIntyre SC
(Defendant)

SOLICITORS:
Ms Natalie McCabe of
McCabe Partners
(Plaintiff)
Mr Hugh Treharne of
Vandervords
(Defendant)

- 26 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 7 APRIL 2003

20165/2002 - IAN JAMES WELLS v EAP OPERATIONS
PTY LIMITED

1 MASTER: The plaintiff seeks damages for a personal injury sustained in an accident that occurred on 23 September 1998 during the course of his employment with the defendant. The plaintiff claims that the defendant was negligent, and as a result the plaintiff suffered injury to his neck, arms and back.

2 The defendant is the occupier of gas pipeline control plant situated near Young, New South Wales. The natural gas pipeline runs from South Australia up to Moomba West of Tibooburra Queensland and down into New South Wales. The natural gas is compressed just outside of Young and sent to Sydney. The plaintiff commenced employment with the pipeline authority in 1991. At the time of the accident he was employed as a senior network controller. The plaintiff worked a set routine, two night shifts, 4 days off and then 4 day shifts. All shifts were of 12 hours duration.

3 His main duties were to control and monitor pipeline activities, to maintain customer contracts while maintaining pipeline integrity and safety, identify problems displayed on control screens, access daily weather forecasts analysing and deciding efficient compressor operation, monitor all valve sites, scraper stations, meter stations and compressor stations on the Moomba to Wilton pipeline, monitor all valve sites, scraper stations, meter stations and compressor stations on all laterals branching off the Moomba to Wilton pipeline and monitor odorant levels. Every event that occurred during a shift had to be logged so every time an alarm came on or a radio call was received the plaintiff had to make a written note of it. The job required a high degree of concentration as natural gas is volatile and if an alarm went off it was critical that the plaintiff responded to the alarm within 60 seconds. The layout of the console room is shown in Ex F. The control desk was arranged in a u-shape. Directly overhead were 4 monitors placed on raised platforms with a desk and keyboards and telephones underneath. There were desks at 45° sloping outwards, which also had monitors, keyboards, radios, videos and telephones on or above them.

4 A few months prior to the accident occurring, the electronic device which activated the automatic lock to the main gate of the premises via the console no longer operated. The operator on night duty had been directed by the supervisor to physically close the front gate manually once the cleaners had left the premises. On 23 September 1998 at 6.30 pm, the plaintiff commenced his second shift of nightshift. On this particular night the plaintiff was required to lock the main gate. The internal lights in the foyer were on. The plaintiff had to physically leave his workstation. It took about 3 minutes to go outside to the main gate, affix the chain and padlock and return to the workstation. This meant that the workstation was left unattended for 3 minutes. If an alarm was activated there was no-one in the control room to respond to the alarm.

5 To gain access to the front gate the plaintiff was required to walk through a lobby out through automatic glass doors to the outside and then move towards the main gate. As the plaintiff proceeded out through the automatic doors he saw the step but misjudged it. His right foot was overhanging the step but the heel part was still placed on the step causing him to twist around on his heel, overbalance and stumble forward. He fell heavily on his knees and collided with the handrails. His neck hit the top rail of the disabled ramp and the right side of his chest hit the second rail. After the plaintiff fell, he looked back and noticed that the four security down lights above the outside entrance of the administrative building were out. There was a dark mat placed at the bottom of the step. The layout of the steps is shown in 4 photographs in Ex G. As he was the only one on duty, he picked himself up, went back inside and completed the shift. He forwarded a written report of the accident to his supervisor and completed an accident report form.

6 Breach of duty of care has been admitted but contributory negligence is in issue.

7 The defendant alleges that the plaintiff failed to take any or any proper care for his own safety; failed to keep a proper lookout and failed to perform his duties in a proper and prudent manner.

8 In considering the question of apportionment the court is required to reduce the damages recoverable "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". The inquiry is not concerned with the cause of the accident but with the cause of damage - see Froom v Butcher [1976] QB 286, Denning MR at 292-293. Contributory negligence is measured by the failure of the plaintiff to take reasonable care for his own safety - see Gunning v Fellows (1997) 25 MVR 97, Beazley JA at 99. It is the degree of departure from the standard of care of the reasonable man, - see Pennington v Norris (1956) 96 CLR 10at 16. Therefore, it is an objective test and not subjective as applied to someone such as the plaintiff. The standard of care is to be measured against that of ordinary prudence - Sungravure Pty Limited v Meani (1964) 110 CLR 24, Windeyer J at 36. In particular the plaintiff’s Counsel referred to McLean v Tedman (1984) 155 CLR 306 at 315 where Mason, Wilson, Brennan and Dawson JJ quoted with approval comments of Windeyer J from Sungravure at 37:

“…when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to “inattention bred of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions”. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, “excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man”.”

9 While the plaintiff’s injury did not occur in a factory, the considerations referred to are relevant. The factors to be taken into account are that, with the outside lights out, and even though the plaintiff saw the step, there was a dark mat at the bottom of the step, which would have meant that the edge of the step was not obvious. The plaintiff was operating under very strict time constraints. Taking these facts and circumstances into account it is my view that the temporary inadvertence which caused the plaintiff to stumble and fall was excusable as it is not incompatible with the conduct of the prudent and reasonable person. Thus I do not apportion any contributory negligence.

10 The plaintiff was born on 17 November 1949 and is currently 53 years of age. He has resided in Young for most of his life. He completed his schooling in Young. The plaintiff is married and has two children who are now adults. After he left school, he initially worked on his father’s property at Wombat. For some years he was employed as a greenkeeper at Young and then Yass Bowling Club. From 11 October 1971 until 21 November 1982, the plaintiff was employed with the Australian Federal police and was transferred to Canberra and Western Australia. When the plaintiff was stationed in Western Australia, he and his wife Carol decided to return to their hometown of Young. The plaintiff wanted to help out with the family farm. The plaintiff accepted a job with the pipeline authority located just outside Young.

11 In about 1986 the plaintiff was experiencing headaches and tingling in the left and rights arms (t 11.41). On 17 February 1987, the plaintiff had x-rays of the cervical spine. On 27 February 1987, a CT scan of the plaintiff’s cervical spine revealed C5/6 degeneration with marked osteophyte formation encroaching on the spinal canal and the exit foramina with minor changes at C4/5 and C6/7 levels. Dr Raymond Newcombe reported that the plaintiff had had neck-ache for some years and that from October 1986 there had been pain extending over the shoulder on the left side down the arm as far as the hand and some pain in the left pectoral area.

12 On 1 May 1987, the plaintiff underwent a cloward fusion procedure at the C5/6 level performed by Dr Newcombe (the first operation). The plaintiff took 8 weeks off work to recover from the operation. He then returned to normal duties with the defendant as a network controller. The plaintiff gave evidence that immediately after the first operation the neck pain and tingling down his arms disappeared. The plaintiff described his health after this operation as being excellent. In 1988, the plaintiff had an operation for a hernia and after a 3 weeks recovery he returned to work and did not have any further problems.

13 By this time, the plaintiff had inherited his father’s farm (the Wombat property) and on some of his rostered days off from work he worked on the property, which he found enjoyable. He fenced about ¾ of the 210 acre property which meant he dug holes, put in fence poles and erected the wire. He ran 60 cattle on the property. He drafted the cattle and moved them from paddock to paddock. He went out in the tractor, and rode the motorbike to check fences.

14 The plaintiff’s friend, Kelvin Bryant gave evidence. He described the plaintiff prior to the accident as motivated and having a lot of stamina. The plaintiff enjoyed waterskiing, playing the occasional game of cricket and fishing. The plaintiff’s wife described him at this time as always being busy. He was the life of the party and people wanted to have him around. He laughed a lot. The plaintiff enjoyed maintaining the house in Young and the Wombat property in his spare time. They would get out on the plaintiff’s 16' boat to waterski. Mr Bryant described the camping trips where a group of friends, including the plaintiff and his wife, would take their boats upstream unload equipment and camp for a few days by the river. They would then go water skiing.

15 Between 1987 and 1998, the plaintiff nearly completed the painting of the inside of the house at the Wombat property. He provided the labour when contractors built a verandah, constructed paving and fixed up the outside of the house. The plaintiff and his wife had purchased a federation house in Young which required renovation. The plaintiff stripped the floors and skirting boards, painted an internal wall, ceilings in some of the bedrooms, and the outside fence (t 54). Since the accident, the plaintiff has not been able to provide labour at either property and they have engaged tradesmen to put in a new bathroom and ensuite in the Young home.

16 During the marriage and up until the time of the accident, the plaintiff did his share of the household duties. The plaintiff and his wife shared the cooking, washing up, vacuuming, and hanging clothes on the clothes-line. The plaintiff did not participate in the ironing but cooked about 1/3 of the meals. The plaintiff took full responsibility for the outdoor maintenance which included looking after the garden, mowing the lawn and taking out the garbage.

17 The plaintiff’s general practitioner’s clinical records which date back from when the plaintiff was 7 years old do not record any complaints in relation to neck and/or back pain after the first operation, namely the period between 1987 to 1998. I accept that after this operation the plaintiff’s neck and shoulders were pain-free and he was able to lead a full and enjoyable life.

18 As previously stated, after the accident the plaintiff completed the night shift and at about 7.00 am returned home. By that time he was in a lot of pain. During the following 4 rostered days off after the accident, the plaintiff experienced chest and neck pain. Initially the chest pain was more severe than the neck pain but over days it subsided while the plaintiff’s neck pain progressively increased. After the next 4 day shift the plaintiff’s neck pain was worse so he consulted his local general practitioner. He felt a lot of pain in his neck and his arms were getting the tingling feeling again; particularly the right arm (t 25).

19 Over the next 11 month period, the plaintiff continued to work but spent the 4 days rostered off work recuperating so he would be able to return to work for the next roster. By now he had developed pain in the upper left arm with tingling down to his fingers. His fingers and arm would spasm and he had difficulty sleeping. The plaintiff gave evidence that his condition still continued to deteriorate over time. He experienced fairly constant neck pain and stiffness. By the end of that 11 month period, the plaintiff found the pain to be unbearable. Sitting in the control room aggravated his neck. He thought that he would be able to get right and just continue to work (t 26). He was being short with people, which is something he had never done, he was losing concentration and the pain was becoming worse. The plaintiff did not want to leave work because he enjoyed it. In August 1999, Dr Sullivan the plaintiff’s general practitioner, certified him unfit for work.

20 On 25 November 1999, the plaintiff underwent excision and anterior interbody fusion at C6/7 level (the second operation). Dr Newcombe performed both the first and second Clowards procedure on the plaintiff’s back. He also performed the revisionary operation (the third operation). Prior to the second operation, Dr Newcombe conducted an examination and reported that the examination showed restriction of rotation of the head, on the neck 60° to each side. Lateral flexion was reduced to 30° in each direction. Forward flexion and extension were also reduced in range.

21 On 2 December 1999, the plaintiff was discharged from hospital. Both the plaintiff and his wife say that he was in a lot of pain and “not with it”. He had little movement, was incoherent and in a terrible lot of pain (t 29.48). He was prescribed Endone and Diazepam. During the next week, the plaintiff’s wife looked after her convalescing husband.

22 On 9 December 1999, the plaintiff was re-admitted to John James hospital for a further operation. He underwent revision of the Clowards procedure and left C7 foramenectomy at C6/7 level (the third operation). On 14 December 1999, the plaintiff was discharged from hospital and wore a collar for about 6 weeks. He was prescribed Panadiene Forte for pain.

23 The plaintiff gave evidence that neither the second or third operations improved his condition. For the next six months he went downhill. He tried a lot of different medications and tried to live with the pain. He attended a pain clinic in the ACT. He continued to experience pain in his neck. The plaintiff attended physiotherapy and hydrotherapy but found he derived no benefit from them. His neck is still very stiff. His neck pain radiates to his shoulders in both upper limbs mainly after an extended period of sitting at work. He cannot sustain prolonged flexion of his neck. He suffers headaches which are over his forehead behind his eyes, straight down the centre of his neck into the shoulder and then down to both elbows. His left arm spasms and he is embarrassed by his disability.

24 Currently, the plaintiff described his condition as being up and down but he has learnt how to rehabilitate himself emotionally and physically. He is never pain free but it varies in intensity. He has constant headaches. The level of pain he experiences from one day to the next is unpredictable. He mows the lawns at Young and does that sort of thing but he suffers pain up to 3 days after that activity. His neck is very rigid. He is wary and protective about moving his neck because if he moves it too far he gets pain which leads to a headache (t 31). He describes the pain in his neck and headaches as being extreme. On occasions his left arm gets very heavy, tingly and jumps around. He takes up to 100 digesics for the pain. He can read a book but not for long periods. He can watch television provided that he is in a comfortable chair.

25 He has difficulty sleeping. He is stand-offish with his grandchildren for fear they will inadvertently hurt him. He obtained a restricted driving licence which means he has to use a rear view mirror and wide angled mirror. He can no longer maintain the Wombat property and the Young residence. He cannot undertake physical activities. He has given his boat to his son.

26 After the accident, Mr Bryant would visit the plaintiff and observed that after the accident the plaintiff became progressively more debilitated. The plaintiff would be in bed when he arrived, but would get out of bed have a cup of tea with his friend and then return to bed. Until November 2000, when Mr Bryant obtained a job in Traralgon in Victoria, he mowed the lawn for the plaintiff. They went to the Wombat property where Mr Bryant provided his labour on the farm while the plaintiff looked on in a supervisory capacity only. The plaintiff cannot use the tractor to spray crops, fix the fencing and other like physical activities. When Mr Bryant comes up to Young from time to time to visit he stays with the plaintiff and his wife. Mr Bryant spends a day doing tasks that the plaintiff needs to be done both at the house at Young and the Wombat property. At the farm, Mr Bryant mowed, did the whipper snippering, drove tractors to store thistles, cut trees down and started the pump to push the water up to the top tank for the house (t 98.8-13).

27 Mr Bryant said that the plaintiff used to be a lot of fun, but now they stay at home and talk. The plaintiff’s wife became upset when she was asked why she chose to work part-time at an after school care centre. She stated that she needed some time apart from the plaintiff. Their marriage has come under strain.

28 Dr Newcombe (report 7 March 2000) commented that the plaintiff had a pre-existing condition of cervical spondylosis and there was some residual change untreated at C4/5 level, and that further deterioration at that level could occur over time. However, Dr Newcombe did not think that such deterioration would be specifically related to his work involvement, and opined that on balance of probabilities any further deterioration would be likely to be of natural causes rather than the work related problem. Dr Newcombe agreed with the report of Dr Ian Sullivan that the plaintiff was totally and permanently incapacitated considering his condition and his background and experience (report 27 February 2001).

29 Dr Revai a psychiatrist reported (Ex K) that in his view the plaintiff suffers from headaches and pain, is frustrated but does not suffer from any psychological condition which would prevent him from working and that the plaintiff’s symptoms are of a physical rather than a psychiatric nature. Dr Westmore, psychiatrist (report 3 April 2002) diagnosed the plaintiff as suffering from chronic pain disorder arising from physical causes and as having an adjustment disorder with depression of mood. I accept the view of Dr Westmore.

30 Dr Chandran, in his report dated 18 January 2001, stated that the symptoms that the plaintiff suffers may be cumulative in the sense that as time goes on, progressive degeneration could aggravate the symptoms. The doctor’s explanation was that the plaintiff’s occupation itself does not cause the degeneration, but in the presence of degeneration or injury, then prolonged computer work could aggravate the symptoms.

31 Dr Cook, neurosurgeon (report 25 January 2001) stated that the plaintiff’s degree of disability is now likely to be permanent. Dr Cook did not find any inconsistency in the plaintiff’s presentation and said that it was unlikely that the plaintiff would ever return to his work as a network controller given his degree of neck limitation. Dr Cook attributed the cause of the plaintiff’s incapacity to his neck injury and subsequent surgery. Dr Brownbill, neurosurgeon (reports 22 November 1999 and 10 March 2000) held a similar view that the plaintiff’s ongoing symptoms were related to the accident on 23 September 1998 and that the plaintiff is not fit to return to his pre-accident employment. According to Dr Brownbill the plaintiff is not fit for employment involving lifting, forced cervical spine mobility or holding his neck in a fixed position. Drs McMahon and Cohen expressed similar views. Dr Eaton and occupational physician held the view that the plaintiff was totally unfit either on a full-time or part-time basis for his normal job and that clinically he appears to be very significantly disabled and would have great difficulty in attempting to carry out paid employment for any reasonable period of time. Dr Eaton did not believe that there was any position which would be suitable for the plaintiff by virtue of his education, training or experience.

32 Dr Wolfenden, a consultant neurologist (report 19 March 2002), considered that the plaintiff’s symptoms may become more severe as he grows older and that he sees no prospect of improvement. Like the other doctors he considered that incapacity was a result of the accident and that the plaintiff is unfit for his previous occupation and any job which would require him to turn his head as well as any heavy manual work.

33 Dr Patrick, in his report dated 4 May 2001, opined that the plaintiff’s continuing symptoms were genuine and consistent with and significantly resulting from the work injury of 23 September 1998. Like Dr Cook, Dr Patrick (report 25 September 2002) attributed the effects of the injury which occurred on 23 September 1998 as being principally responsible for the plaintiff’s ongoing significant work incapacities rather than any pre-existing degenerative changes. Those degenerative changes were asymptomatic prior to the 23 September 1998 accident. In evidence, Dr Patrick acknowledged that the solid fusion at C5/6 may lead to accelerated changes. X-ray imaging was suggestive that the degeneration had been occurring at the C4/5 and C6/7 levels.

34 Like the plaintiff’s treating surgeon Dr Newcombe, Drs Cook, Eaton, Brownbill and Wolfenden expressed similar views to Dr Patrick namely the plaintiff continues to be incapacitated for his former work as a network controller. According to Dr Patrick, the plaintiff is incapacitated for physical work involving rapid or repetitive or heavy use with the left arm or requiring any significant mobility of the neck or working with the neck for more than short periods in any kind of difficult situation. He said that it was clear that the plaintiff would have difficulty finding employment on the open labour market.

35 However, when Dr Patrick gave evidence he said that spondylosis could have become apparent between 60 and 65 years so although it is not certain the plaintiff may well have continued to only about 62.5 years rather than 65 years. On the other hand, had this fall not occurred and the second and third surgical procedures not taken place, the plaintiff, even if he had not been able to do the “full on” work he was doing, might well have been able to do some other kind of light or supervisory work even full time until 65 years (t 75.32). I found Dr Patrick to be an impressive witness. His evidence largely accords with that of the other doctors (except Drs Mathieson and Smith) and that of the plaintiff. I accept and prefer Dr Patrick’s evidence.

36 Drs Mathieson and Smith disagreed with the other predominant medical view. Dr Mathieson (report dated 16 October 2001) stated that the plaintiff was a bit hard to examine as he held his neck rigidly which was not a genuine restriction. The plaintiff would not allow Dr Mathieson to make head or neck movements. Dr Mathieson also observed that the plaintiff had some neck mobility. His attempts to examine the plaintiff’s left shoulder caused the plaintiff to react by hunching up the shoulder and keeping his arm held closely by his side, which Dr Mathieson thought was a contrived response. The plaintiff would allow flexion extension of the shoulder while it was hunched up but no abduction. Dr Mathieson stated that this was not a consistent finding or following any known organic pathology.

37 In Dr Mathieson’s opinion it was a long-standing problem as all of the osteophytes were anterior and not posterior. There was no reason for the plaintiff to have any radiculopathy, although he was in no doubt that the plaintiff did get neck pain. However, he thought that the plaintiff exaggerated his condition and the contention that the plaintiff could not work because he could not look at the television screen was just ridiculous. Dr Mathieson was of the opinion that the plaintiff was perfectly capable of doing his old console work, but he would not be able to do heavy physical work.

38 Dr Mathieson opined that the accident on 23 September 1998 was a temporary aggravation of an underlying degenerative condition made permanent by his further surgery and there was some component of the plaintiff’s current disability that could be related to his more recent employment and the fall. Dr Mathieson concluded that the plaintiff had some neck incapacity, but was fit for his pre-injury employment though not fit for employment on the general labour market. The accident on 23 September 1998 may have caused some aggravation of the plaintiff’s degenerative spinal condition, which has not ceased. Dr Mathieson’s prognosis for the plaintiff was for some ongoing neck pain which did not require further surgery. Dr Mathieson (report dated 31 January 2003) stated that he would apportion ¾ of the plaintiff’s disability to the pre-existing condition and ¼ to the fall in 1999.

39 Dr Smith (report dated 14 January 2002) stated that the plaintiff probably did have an underlying illness which nonetheless could produce some neck discomfort and some slight restriction in the movement of the neck from time to time and could require medications from time to time and physiotherapy. Dr Smith did not think it was anywhere nearly as severe as the plaintiff made out. Dr Smith thought that the plaintiff would be fit for work in his previous occupation and suggested that the only restriction to his employment would be that he needed to avoid repetitive or extended overhead work. The plaintiff could sit or stand as desired to operate his console and should be able to mange it quite nicely.

40 A video (Ex 2) showed the plaintiff spending about 20 minutes washing his car at a car wash and then some instances of the plaintiff reversing a utility was shown to the court, Drs Patrick, Mathieson and Smith. Dr Patrick gave evidence that there was nothing in that video that caused him to alter his opinion. As Dr Patrick noted the plaintiff was using the right arm invariably for the hose and moving that around reasonably normally, but the left arm generally was at the side or away from the side for certain periods and then would come down for rest again and most of the movement was that of the biceps at C5/6 dermatome muscle (t 70.42-49).

41 Drs Mathieson and Smith disagreed with Dr Patrick. Dr Mathieson said that the plaintiff moved around freely and with no disability and is obviously mobile and able to carry out some tasks. There is a paucity of neck movements in the plaintiff, consistent with his known neck pathology and his previous neck operations. Thus, the film was not normal from that point of view but Dr Mathieson stated that it did indicate that Mr Wells is capable of carrying out sustained activities and the film was certainly consistent with his assessment of the plaintiff. That is, that the plaintiff does have some neck incapacity but could be employed in his pre-injury employment (Ex 3).

42 Dr Mathieson was cross-examined. During cross-examination, Dr Mathieson admitted that he became aware of the nature of the plaintiff’s duties when he was shown the diagram (Ex F) when he gave evidence in court. The doctor did not think it made any difference whether the plaintiff was required to look at one monitor or eight as he could look at only one monitor at any one time. According to Dr Mathieson, if the plaintiff was required to continually look from one monitor to another he could swivel the chair (t 103). Dr Mathieson did not see how working a 12 hour shift straight would have any bearing on the plaintiff’s neck, although he was sure the plaintiff would have pain in his neck from time to time. In relation to the video, Dr Mathieson agreed that the plaintiff would have mid-cervical rigidity but the head on neck movements would not be interfered with.

43 Dr Smith (reported dated 17 October 2001) stated that the video demonstrated the plaintiff was able to move his neck and use his arms in a fashion that is inconsistent with the restriction he exhibited clinically when seen by him. It was Dr Smith’s opinion that the plaintiff was exaggerating the severity of his condition and that the video confirmed that opinion. On the basis of the video, Dr Smith said that the plaintiff would be fit for a non-manual occupation, and there were some instances in the video which demonstrated that the plaintiff had some problems with his neck which Dr Smith would expect having regard to the plaintiff’s history and the fact that he had a failed fusion at C6-7 (Ex 3).

44 After carefully watching the video, I did not observe the plaintiff using his left arm to any great extent. I also observed that the plaintiff held his neck fairly rigidly. I agree with Dr Patrick’s observations and assessment of the plaintiff’s capabilities. Hence, I find that the plaintiff’s injuries and disabilities were caused by the 23 September 1998 accident and these injuries and disabilities have rendered him incapable for employment as a network controller. The plaintiff is unfit for physical work which involves rapid, repetitive or heavy use with the left arm, or tasks which involve any significant mobility of the neck. I also accept that had the accident not occurred it was more probable than not that the spondylitis at C4/5 and C6/7 would have become symptomatic between the ages of 60 to 65 years but that the plaintiff would have been able to work full time doing light or supervisory work on a full-time basis until the age of 65 years. With respect, I cannot agree with Dr Mathieson and accept that having to continuously monitor 8 computer screens as opposed to 1, does not create any more strain on the plaintiff’s neck.

45 The plaintiff submitted that the amount he should be awarded for non economic loss is 55% of a most extreme case which equates to $125,592.00 whereas the defendant submitted that the plaintiff should be awarded between 40-45% of a most extreme case. I have taken the foregoing into account and I assess the plaintiff’s non economic loss at 52% of a most extreme case. This equates to $118,742.00.

46 The out of pocket expenses are agreed at $50,459.30.

47 The Fox v Wood component is agreed at $10,099.20.

48 The plaintiff submitted that since the accident he has been totally incapacitated for work. The defendant submitted that the plaintiff is able to do some work since his condition stabilised in about August 2000. The plaintiff was able to continue to work with difficulty until 4 August 1999. He returned to work on light duties between 5 and 12 October 1999. He has not worked since 12 October 1999.

49 From 30 August 2000 to date the plaintiff submitted that in reality he has been unemployable. The plaintiff attempted to return to work. He was placed in an office in the control room and had to do filing on a computer but carrying out that task made his situation worse (t 28). He was only working off one screen and working 4 hours per day. He left after about 7 days because the pain became extreme (t 29). When the plaintiff was asked why he had not attempted to find a job he replied that he had not felt well enough (t 61). He has lost confidence and he thinks that is because of the pain and embarrassment.

50 The plaintiff does not think he can go back to his old job because you have to be 100% fit to do it and “switched on”. The plaintiff cannot predict how much pain he will have from day to day. Pulling up a weed, if he happens to move the wrong way can set him off for the day (t 35). When the plaintiff was asked what work he thought he could be capable of, he said that if he could get his cattle going again and employ somebody to do the work he could just drive around, and then he would not have to rely on being there right at 9 o’clock. If he did not feel well that day he would not have to go out. He said he could not do clerical work because he could not sit in a static position.

51 The duties of the plaintiff’s pre-accident employment were described to Dr Patrick. The plaintiff was to sit facing either the left hand or centre console and he had a chair on rollers that could be propelled from one position to the other and he was required to look at the monitors that appeared in front. The plaintiff was also required to answer telephones and to use the VHF and UHF radios if required. That job required the plaintiff to be seated and look at and concentrate on looking at the monitors. Occasionally he had to stand and go outside for various other jobs. Dr Patrick said that the three cervical surgical procedures would not prevent the plaintiff from performing that work but it would be likely that the swivelling chair and the moving could be done individually. However, if the plaintiff had to quickly look around to one monitor and then another it would be very difficult (t 80.5-15). The plaintiff would not be able to do that work for very long because his neck mobility would be reduced.

52 The plaintiff called for reports commissioned by the defendant in relation to his capacity to work namely, those of Recovery Pty Limited and Dr Gardner an occupational physician. There were not produced. Workcase (report 19 October 2000) suggested that after training and a period of searching, the plaintiff could obtain part-time employment as a telephone sales order clerk but concluded that it was more likely that he would not obtain gainful employment for the remainder of his working life.

53 I accept that from the date of the accident up to date of trial the plaintiff has been totally incapacitated for work. For that period the plaintiff has not had any residual earning capacity. Past economic loss has been calculated for the period of 4 August 1999 to 31 March 2003 from the schedule provided by the plaintiff at $155,739.25.

Future loss of earning capacity

54 The plaintiff submitted that but for the accident he would have worked to age 65 years and claims total loss of earning capacity to date and continuing to age 65. The parties agree that a comparable employee currently earns $860.00 nett per week. The plaintiff calculated the future loss of earning capacity on the basis of 11.75 years x 466.55 at $860.00 nett per week. The plaintiff had been in his current job for the last 20 years. He was happy at work and had no plans to change. I accept that had the accident not occurred the plaintiff would have remained in his current employment or in a job of a similar nature until retirement. I also accept that it is more likely than not that by about 62.5 years of age the degenerative changes to the plaintiff’s spine may have meant that he could not have continued on in his current job but may have by this time found a job which was in the nature of a more supervisory role. This may have or may not have been reflected in the remuneration that he would have received. This factor is reflected in the higher than usual amount allowed for the vicissitudes of life (referred to later in this judgment).

55 At first, it is difficult to accept, as the plaintiff submitted, that the injuries that the plaintiff has sustained in the accident have caused his residual earning capacity to be reduced to nil. The plaintiff is intelligent and has the mental capacity to carry out a range of jobs. He was able to undertake clerical duties while in the police force and his pre-accident employment. Nearly all of the medical experts agreed that he will never be fit to return to his pre-accident employment. The doctors also agree that he is incapable of performing any heavy manual work or work that involves mobility of the plaintiff’s neck or any work involving rapid, repetitive or heavy use with the left arm. It is my view that the plaintiff may from time to time be fit for light work which does not involve heavy work or repetitive movements involving the left arm or the jolting of his neck. It is my view that the plaintiff does not have the residual capacity which would allow him to undertake regular part-time employment such as three days per week, six hours per day. Like Dr Patrick, it is my view the plaintiff would be able to carry out some part-time light work but would need a sympathetic employer because he might need to take a day off or even three days off in a row if the intensity of symptoms were more severe than usual. He would not be able to predict on a day-to-day basis as to when this would occur. The plaintiff may in the future be able to find some remunerative work, albeit on a part- time basis for a few months or weeks from year to year where no tight deadlines are imposed. The plaintiff has resided in Young for most of his life and is now 53 years of age. There would be very limited opportunities for the plaintiff to find such a sympathetic employer as outlined above. I assess the plaintiff’s loss of earning capacity at 90%.

56 The parties submitted that due to the uncertainty of whether or not the plaintiff would have in the later years of his working life experienced symptoms from the first operation, the parties agree that an allowance of 20% for vicissitudes in lieu of the usual 15% should be made. I agree with this approach and deduct 20% for the vicissitudes of life. The calculation for future economic loss is $744.00 net per week x 11.75 years (on 5% tables – multiplier 466.55) which equates to $277,690.56.

57 There is no claim for superannuation loss.

58 The defendant conceded that the plaintiff required past domestic care for the period from 23 September 1998 to 21 August 2000. The calculation of the amounts for those periods are as follows. From 23 September 1998 to 23 November 1999 7 hours per week at $17.00 per hour = $119.00 x60.7 = $7,223.30; from 2 December 1999 to 8 December 1999 4 hours per day at $17.00 x 28 hours = $476.00; from 14 December 1999 to 14 February 2000, 4 hours per day at $17.00 per hour x 28 = $476.00 x 8.85 = $4,212.60; from 15 February 2000 to 21 August 2000 the plaintiff claimed 14 hours per week at $17.00 per hour = $238.00 x 26.7 = $6,354.60. Thus from 23 September 1998 to the 21 August 2000 I allow past domestic care calculated at $18,266.50.

59 After that date, the plaintiff claims 10 hours of domestic assistance and into the future. The defendant submitted that the maximum to be allowed would be between 3 to 5 hours per week. The plaintiff relied upon the report of Kairros Pty Limited dated 30 November 2001 which states that the plaintiff is unable to perform normal household chores, house and garden maintenance due to neck pain and loss of function, and calculates the rate at $25 per hour, 10.5 hours per week at $13, 650.00 per annum.

60 The plaintiff submitted that he is entitled to be awarded a sum of damages for fees incurred in the maintenance of his property at Wombat. The defendant submitted that the plaintiff is not entitled to be reimbursed for the tasks he previously undertook at the Wombat property. Prior to the accident, the plaintiff painted the interior of the house at Wombat, sprayed thistles, fixed the fences, drove tractors, cut down trees and started the pump. After the accident, when it became apparent to him that he could no longer physically perform active tasks at Wombat he sold his cattle and entered into a share farming arrangement. The farmer owns all the equipment. The farmer ploughs, sows, sprays and strips the crops and then the plaintiff and the farmer are each entitled to half of the proceeds from the sale (t 38). The plaintiff is not claiming economic loss for the farm activities as prior to the accident the property operated at a loss. In any event, the plaintiff is not entitled to be reimbursed for the improvements he made or intends to make to the property. The issue is whether the plaintiff is entitled to reimbursement for the maintenance he would have performed on the Wombat property had he not been injured.

61 The plaintiff’s counsel referred to O’Keefe v Schluter [1979] QdR 224 where Wanstall CJ, at 225, stated:

Donnelly v Joyce

1. A loss of his own capacity to work his farm;

2. Economic loss thereby ensuing;

3. Economic need for services to mitigate such loss;

4. The need for services by the work of his father and brother;

5. That the extent of his loss can be measured by the value of the services provided by the gratuitous workers, i.e. the proper and reasonable costs of supplying them.

Donnelly v Joyce (supra)

Griffiths v Kerkemeyer

riffith’s case

62 In Griffiths v Kerkemeyer, (1976) 139 CLR 161, the High Court considered the principal of what compensation should be awarded where a plaintiff has been injured and a relative or friend performs services that have been rendered necessary by those injuries. The court specifically identified those needs as being for medical or hospital treatment, nursing assistance or pharmaceutical supplies. Stephens J, at 173, stated that when a plaintiff, as a result of his accident-caused injuries, becomes in need of goods or services that need is itself a loss suffered by him, for which he may recover damages against the defendant. Mason J, at 193, stated that it is the true loss of capacity which occasions the need for service. Van Gervan v Fenton (1992) 175 CLR 327 is not of assistance because the issue was the criteria that should be used for the determination of the value of services provided gratuitously.

63 In Sullivan v Gordon (1999) 47 NSWLR 319, the New South Wales Court of Appeal held that the accident caused need of a disabled plaintiff, that is, compensable should not be confined to self-care. Mason P, at 322, then posed the questions: But what exactly is the need recognised? And what are its limits? The answer focused on the issue before that court, namely whether damages should be awarded to compensate for the loss of capacity to care for dependent children. In Sullivan the Court of Appeal referred to a prior case of Burnicle v Cutelli [1982] 2 NSWLR 26, where it was held that the loss of capacity was compensable but only sounded in general damages. The Court of Appeal ruled, at 331, that Burnicle is no longer accepted as good law. Thus any amount awarded does not sound in general damages.

64 It is my view that the plaintiff would have continued to maintain the Wombat property had the accident not occurred. It was the plaintiff’s injuries that were sustained in the accident that rendered him incapable to carry out those tasks and thus created the need for services. The plaintiff would have been entitled to the costs of mowing his lawn at the house but has elected to continue with the mowing despite suffering considerable pain. It is my view that the plaintiff is entitled to be awarded a modest amount so that maintenance on the property can be carried out so that it does not fall into disrepair. I assess the amount of maintenance required is 4 days of 7 hours duration each year so that such tasks as repairing the fences and house can be undertaken. For calculation purposes this equates to about 30 minutes per week which I have included when I have assessed domestic care. This should be calculated at market rates but as it is not possible to be precise I have calculated it at the statutory rate for the next 10 years.

65 Prior to the accident, the plaintiff did his share of the domestic chores, such as washing up, cleaning, vacuuming and washing. He did only 1/3 of the cooking but took out garbage. He carried out repairs and painting of the house. He did not do the ironing. He took pride in his garden. He can still mow the law and intends to do so even though he suffers pain for a few days after he has carried out this activity. As a result of his injuries, the plaintiff requires assistance with maintenance and repair of his home, housework and other domestic assistance. I assess that the plaintiff requires domestic assistance of 5 hours per week. I have taken into account when assessing this figure that currently the plaintiff may need less domestic assistance than in the future when he may require more. Past domestic assistance is calculated from 21 August 2000 to 7 April 2003 = 136 weeks at $17 per hour x 5 = $11,560.00. This total of past domestic care equates to $30,426.50.

66 The plaintiff’s wife suffers from connective tissue disorder. Briefly this means that the skin becomes hard and fibrous and this disorder can also affect the organs. Mrs Wells has problems with her oesophagus and small bowel. Each day she has a certain amount of energy and once that is used, it is “tears and bed” (t 82.20). The Kairros report stated that in about 10 years time the plaintiff’s function is likely to deteriorate more rapidly than the normal population due to the plaintiff and his wife’s separate medical conditions. According to the report, after 10 years the plaintiff’s wife will no longer be able to perform the chores that the plaintiff did prior to the accident and will require increased assistance up to 20 hours per week at $26,000.00 per annum at market rates. It is my view that the plaintiff’s wife will continue to carry out the household duties for the next 10 years. After 10 years it will be more probable than not, that she will no longer be capable of providing these services and it will be necessary to employ help at market rates.

67 Total future domestic care is $104,339.00.

68 The plaintiff has claimed the following expenses; pharmaceutical at $85.00 per month; visits to general practitioner – 6 per annum at $150.00; specialist attendances – 2 per annum at $150.00; and a neck collar – 1 per year at $18.00 which equates to $31.50 per week for life expectancy 5% multiplier 779.45 = $24,552.67 plus $5,000.00 for rehabilitation and counselling = $27,552.67. The defendant does not dispute any items with the exception of $5,000.00 claimed for rehabilitation and counselling.

At page 6 of the Kairros report, it states that the plaintiff has been a very productive and competent man who now has a challenge to identify his future endeavours given his significant physical restrictions. He would benefit from counselling as to his vocational capacity or in the alternative, constructive interests, which he would be able to pursue within his disability. This would help his depressed mood and give him a greater sense of purpose and perhaps mitigate his sense of loss. The plaintiff would also benefit from a regular attendance at a heated pool for an exercise program aimed to maintain his general condition as best as he can given his pain levels.

69 In accordance with Malec v J C Hutton Pty Limited (1990) 169 CLR 638 an award for damages should reflect this possibility. It is reasonable to allow a sum for the plaintiff to undergo counselling. Taking the above into account, it is reasonable if not conservative to allow the sum of $3,000.00.

70 I enter verdict in favour of the plaintiff for damages in the sum of $775,048.48. From that amount the agreed workers compensation payback of $122,336.05 is to be deducted. The defendant is to pay the plaintiff’s costs on a party/party basis, but as from 3 February 2003 costs are to be paid on an indemnity basis.

71 I will enter judgment that the defendant pay to the plaintiff the sum of $652,712.43 for damages once the parties have had the opportunity to check the calculations.

72 The Court orders that:

(1) The defendant is to pay to the plaintiff the sum of $652,712.43 for damages.

(2) The defendant is to pay the plaintiff’s costs on a party/party basis, but as from 3 February 2003 costs are to be paid on an indemnity basis.

SCHEDULE

$

Non Economic Loss 118,742.00

Out of pocket expenses 50,459.30

Fox v Wood 10,099.20

Past economic loss 155,739.25

Future loss of earning capacity 277,690.56

Past domestic assistance 30,426.50

Future Domestic assistance 104,339.00

Future Treatment 27,552.67

775,048.48

122,336.05

652,712.43

**********

Last Modified: 05/08/2003

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Citations

Wells v EAP Operations Pty Limited [2003] NSWSC 265

Cases Citing This Decision

0

Cases Cited

11

Statutory Material Cited

0

Pennington v Norris [1956] HCA 26

Sungravure Pty Ltd v Meani [1964] HCA 16

Pitt Son & Badgery Ltd v Proulefco [1984] HCA 6

CITATION:	Wells v EAP Operations Pty Limited [2003] NSWSC 265 revised - 7/05/2003
HEARING DATE(S):	4, 5, & 6 March 2003
JUDGMENT DATE:	7 April 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Master Harrison
DECISION:	The Court orders that; (1) The defendendant pay to the plaintiff the sum of $658,830.61; (2) The defendant is to pay the plaintiff's costs as agreed or assessed.
CATCHWORDS:	Personal injury - contributory negligence - assessment
CASES CITED:	Burnicle v Cutelli [1982] 2 NSWLR 26 Froom v Butcher [1976] QB 286 Denning MR at 292-293 Griffiths v Kerkemeyer (1976) 139 CLR 161 Gunning v Fellows (1997) 25 MVR 97, Beazley JA at 99 Malec v J C Hutton Pty Limited (1990) 169 CLR 638 McLean v Tedman (1984) 155 CLR 306 at 315 Pennington v Norris (1956) 96 CLR 10 at 16 Sullivan v Gordon (1999) 47 NSWLR 319 Sungravure Pty Limited v Meani (1964) 110 CLR 24 Windeyer J at 36 Van Gervan v Fenton (1992) 175 CLR 327
PARTIES :	Ian James Wells (Plantiff) EAP Operations Pty Limited (Defendant)
FILE NUMBER(S):	SC 20165/2002
COUNSEL:	Mr R Letherbarrow SC with Mr R Taylor (Plaintiff) Mr J McIntyre SC (Defendant)
SOLICITORS:	Ms Natalie McCabe of McCabe Partners (Plaintiff) Mr Hugh Treharne of Vandervords (Defendant)