Wishart v Manna
[2017] WADC 104
•18 AUGUST 2017
WISHART -v- MANNA [2017] WADC 104
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 104 | |
| Case No: | CIV:2059/2009 | 26-28 JUNE 2017 | |
| Coram: | STONE DCJ | 18/08/17 | |
| PERTH | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff Damages assessed in the amount of $968,464 | ||
| PDF Version |
| Parties: | ERROL DESMOND WISHART KARL RAYMOND MANNA |
Catchwords: | Assessment of damages for personal injuries Defendant's nonattendance at trial |
Legislation: | Civil Liability Act 2002 (WA) s 9, s 10, s 12, s 13 Rules of the Supreme Court 1971 (WA) O 34 r 2, r 4 |
Case References: | Broadway Pty Ltd v Lewis [2012] WASC 373 Stone v Smith (1887) 35 Ch D 188 Syme v Roos [2016] WADC 164 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KARL RAYMOND MANNA
Defendant
Catchwords:
Assessment of damages for personal injuries - Defendant's nonattendance at trial
Legislation:
Civil Liability Act 2002 (WA) s 9, s 10, s 12, s 13
Rules of the Supreme Court 1971 (WA) O 34 r 2, r 4
Result:
Judgment for the plaintiff
Damages assessed in the amount of $968,464
Representation:
Counsel:
Plaintiff : Mr N F Morrissey
Defendant : No appearance
Solicitors:
Plaintiff : Kakulas Legal
Defendant : Not applicable
Case(s) referred to in judgment(s):
Broadway Pty Ltd v Lewis [2012] WASC 373
Stone v Smith (1887) 35 Ch D 188
Syme v Roos [2016] WADC 164
- STONE DCJ:
Introduction
1 On 13 July 2003 Mr Errol Desmond Wishart, the plaintiff was riding a Kawasaki KFX 400 quad bike along Pessoa Road in the Gnangara Pine State Forrest. At the same time Mr Karl Raymond Manna, the defendant was riding a Suzuki RM 250 motorbike on the incorrect side of that road and his motorbike collided head-on with the plaintiff's quad bike.
2 On 9 December 2013 judgment in default of defence was entered by the plaintiff against the defendant and it was adjudged that the defendant pay the plaintiff's damages to be assessed.
3 The plaintiff has pleaded the various injuries, treatment and non-pecuniary loss aspects of the claim. The defendant has not provided a defence to the plaintiff's statement of claim.
4 The defendant failed to appear at the trial of the assessment of damages.
The defendant's non-attendance at the trial
5 The defendant did not appear at the trial and he was not represented by counsel. The plaintiff's counsel sought to continue with the trial in the defendant's absence. I permitted the trial to proceed and I indicated reasons for doing so at the commencement of the trial.
6 Order 34 r 2 and r 4 of the Rules of the Supreme Court 1971 (WA) provide that if, when a trial is called on, one party does not appear the judge may proceed with the trial of the action in the absence of that party. The court has a discretion as to whether to proceed with or adjourn the trial. Two fundamental considerations govern the exercise of the court's discretion. The first was that natural justice must be afforded to a party to litigation. The second, and related, consideration was that the paramount objective of litigation was the just resolution of disputes: Broadway Pty Ltd v Lewis [2012] WASC 373 [43] (Pritchard J).
7 In reaching the view that I should permit the trial to proceed, I was satisfied that the defendant had been provided with adequate notice of the date of the trial and the evidence upon which the plaintiff relied to establish its case and he was aware of the implications for his case if he failed to attend. I also took into account case management objectives and the plaintiff's position. All of these matters militated against adjourning the trial for a third time. The writ of summons was filed on 10 July 2011 and concerned an event that occurred on 13 July 2003. The defendant filed a memorandum of appearance on 17 August 2009 providing his address for service as 3/46 Shaw Road, Dianella. However, since that date the defendant has not appeared at any of the interlocutory matters listed by the court and all correspondence sent by the court to the defendant at 3/46 Shaw Road, Dianella has been returned to the court marked 'return to sender'. When the case was listed for trial on 27 February 2017 the defendant failed to attend. The trial was vacated and relisted for 27 March 2017. The court made orders for substituted service of the defendant by pre-paid ordinary post addressed to the defendant care of his mother at 11/19 Conica Crescent, Hillarys of all documents which the plaintiff intends to rely upon at trial and by giving notice to him of such delivery to his mother by text message to his mobile telephone number and on his Facebook account. On 27 March 2017 the defendant failed to attend the trial. The trial was vacated because the time allocated for the hearing was insufficient and relisted for 26 June 2017. The court made orders for substituted service of the defendant by pre-paid ordinary post addressed to the defendant care of his mother at 11/19 Conica Crescent, Hillarys of the court order relisting the case for trial on 26 June 2017 and all documents which the plaintiff intends to rely upon at trial and by giving notice to him of such delivery to his mother by text message to his mobile telephone number and on his Facebook account. On 26 June 2017 the defendant failed to attend the trial. I am satisfied by the contents of the affidavit of Martin James Koshy sworn on 21 June 2017 that the defendant was notified of the trial date of 26 June 2017 in accordance with the orders for substituted service. The defendant made no application or request to adjourn the trial and there was no notification that he was unable to attend the trial for any reason.
Issues
8 If a defendant does not appear at the trial the plaintiff must prove his or her claim so far as the burden of proof rests upon him or her and the claim is confined to relief clearly pleaded: Stone v Smith (1887) 35 Ch D 188, 190.
9 Whether the plaintiff can establish, on the balance of probabilities, his claimed injuries, loss and damages as a result of the accident.
Accident injuries and medical treatment
10 The affidavit medical evidence from Dr Joe Kosterich of Royal Perth Hospital (RPH), Dr Ron Hirsch of RPH, orthopaedic surgeon Mr Philip Hardcastle, orthopaedic surgeon Mr Tony Robinson and Dr Michael Mears of Recherche Medical Centre established that as a result of the accident the plaintiff sustained a closed head injury associated with oedema in the right parietal lobe; loss of consciousness; soft tissue trauma to the neck; a fractured left clavicle; soft tissue injury and bruising to the left side of the body including the left shoulder, left leg and left ankle; an open fracture to the left tibia and fibula; bruising and soft tissue injury to the right shoulder and right hip;scarring on the shin of the left leg;and pain.
11 The affidavit medical evidence from Dr Kosterich and Dr Ron Hirsch established that following the accident on 13 July 2003 the plaintiff was conveyed by ambulance to RPH where he underwent radiological investigation of his left leg, chest, pelvis, lumbar spine, thoracic spine, cervical spine and left shoulder and CT investigation of his head.
12 The plaintiff was taken to theatre where under general anaesthetic his fractured tibia was openly reduced and internally fixed using an intramedullary nail.
13 On 18 July 2003 the plaintiff was discharged from hospital. He was non-weight bearing on his left leg and ambulating with the assistance of crutches. He was fully weight bearing on 17 November 2003 with some discomfort in the fractured area.
14 Between 12 August 2003 and 23 February 2004 the plaintiff was reviewed at the Outpatient Department of RPH on seven occasions. On the last occasion radiology revealed satisfactory healing of the fractured area.
15 The plaintiff testified that for approximately five months following discharge from hospital he attended the Physiotherapy Department of RPH for treatment twice weekly. He also attended there for hydrotherapy for approximately three or four months.
16 Mr Hardcastle gave affidavit evidence that on 9 September 2009 he reviewed the plaintiff. He observed the plaintiff had sustained an injury to his left shoulder as a result of the accident which was not diagnosed until sometime post injury by the plaintiff's general practitioner despite being an inpatient at RPH and having a reasonable amount of discomfort in his left shoulder. The plaintiff had persisting pain around the left shoulder which prevented him using his left arm for lifting or carrying various items and shooting. The plaintiff also experienced night pain. Examination of the plaintiff's left shoulder demonstrated slight deformity around the acromioclavicular joint and tenderness in the subacromial region. The plaintiff had mild restriction of abduction but other movements were good and he had good strength. Impingement tests were positive. He also observed the plaintiff had made a good recovery from his predominant injury, a comminuted left tibial fracture. The plaintiff's left lower limb was restricted more with physical activities mainly of an impact nature. Examination of the plaintiff's left lower limb demonstrated prominence of the screws, both in the upper and lower tibia which were tender. The plaintiff also had some patellofemoral tenderness. The plaintiff had quite marked quadriceps wasting on the left lower limb of 2 cm signifying the problems he had been reporting with activity. He was of the opinion the plaintiff sustained 'a mild permanent residual disability in relation to the left shoulder, right knee and leg'. The disability 'would be considered chronic and permanent'. He was also of the opinion '[the plaintiff] would be 90% fit for his pre-accident work and activities'. The plaintiff's main restrictions were his ability to weight bear for long periods and negotiating uneven or hilly terrain, except on a short term basis. The plaintiff's left upper limb injury restricted his ability for work-related lifting.
17 On 10 September 2009 the plaintiff underwent radiological investigation and ultrasound investigation of his left knee, tibia and ankle and radiological investigation of his left shoulder.
18 The plaintiff testified that he has taken analgesic and anti-inflammatory medication for the injuries to his left shoulder and lower left leg.
19 Mr Robinson gave affidavit evidence that on 16 April 2013 and 14 February 2017 he reviewed the plaintiff. He observed on 14 February 2017 that the plaintiff continued to suffer pain in his left shin bone, left knee, left ankle and left shoulder, which were aggravated by physical activity. He was of the opinion that the plaintiff should have an excision of the outer aspects of his clavicle and the adjacent joint. He was also of the opinion that the plaintiff should undergo surgery to remove the left tibia nails. He was also of the opinion that the plaintiff's condition had stabilised albeit with residual moderate disabilities and he was now fit for his pre-accident work with restrictions. The plaintiff 'would have to avoid heavy lifting above waist level with his left arm and sustain shoulder level work with his left hand'.
Loss of earning capacity
Relevant law
20 The plaintiff carries the onus of proving loss of earning capacity and the extent to which that loss produces, or might produce financial loss.
21 In Syme v Roos [2016] WADC 164 Gething DCJ [157] - [158] summarised the principles that apply to the assessment of loss of earning capacity as follows:
An injured plaintiff must establish both that her injuries have resulted in a diminution of her earning capacity and that the diminution is productive of financial loss: Graham (347); Medlin (3), (16); Husher, 143 [7]; Mastaglia v Burns [2006] WASCA 190; (2006) 32 WAR 427, 444 - 445 [89] (Martin CJ). It is usually convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss': Graham, 346 - 347.
In assessing future loss, what the plaintiff earned in the past provides useful, but not determinative, guidance about what the plaintiff would have earnt if the plaintiff had not been injured: Husher [8], 143. It is necessary to predict, not only what the future holds for the plaintiff, but also what the future would have held for the plaintiff had she not been injured in the relevant accident: Paul v Rendell (1981) 34 ALR 569, 571 (Lord Diplock); Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298 [178], [224], [225] (Malcolm CJ). Where there are too many imponderables to make any precise calculation of the damages to be awarded for the loss of earning capacity a global amount may be awarded: Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, 157 - 158 (Aickin J); Panizza v Moir [2009] WADC 110; (2009) 64 SR (WA) 166, [86] (Stone DCJ).
Past loss of earning capacity
22 The plaintiff testified that he was born on 27 November 1977. He was right-hand dominant. After leaving school at age 17 years he did not complete his apprenticeship as a motor mechanic. He was employed by his father-in-law doing general maintenance on transport equipment until October 1998 when he was employed by Wesfeeds as a bagger stacking bags of pellets on pallets. At the time of the accident, he was working for Wesfeeds as a shift miller on a casual full-time basis.
23 As a result of his injuries, he was totally unfit for work for approximately seven months following the accident. His employment was terminated by Wesfeeds on 7 January 2004 due to his absences from work since the accident and his inability to return to work for another two months because of his injuries.
24 I accept the plaintiff's evidence that but for the accident, he would likely have continued to work for Wesfeeds as a shift miller.
25 As the plaintiff's work at Wesfeeds was shift-based, the plaintiff's weekly earnings varied considerably from week to week. The plaintiff's income tax returns established that when he worked for Wesfeeds prior to the accident, the plaintiff's annual income was as shown in Table 1, below.
Table 1: Plaintiff's Pre-Accident Earnings
Fin Year | Gross Annual | Net Annual |
2001 | $54,329 | $39,886 |
2002 | $56,906 | $41,373 |
2003 | $61,083 | $43,713 |
26 The plaintiff testified that since the accident he has worked in Western Australia and Victoria. He has attempted to maintain an income by working in roles such as driving a tow truck, driving a boom spray, farm machinery operator, forklift operator, roof plumber, general labourer, paver, farmhand, mechanic, load operator, trainee driller's offsider, roofer, professional kangaroo shooter, silo erector and pellet press operator. His efforts to obtain and retain employment have been hampered by the physical limitations placed on him by his accident-caused injuries. He was unable to lift anything heavy. He was unable to lift his left arm vertically, 'past 9 o'clock'. He is currently employed on a farm as a boom spray operator/driver.
27 The plaintiff testified by reference to his income tax returns that from the 2004 financial year onwards, his actual earnings have been as shown in Table 2 (below). (The amounts shown in Table 2 do not include Centrelink benefits received by the plaintiff in the 2006, 2007 and 2008 financial years.)
Table 2: Plaintiff's Actual Post-Accident Earnings
Fin Year | Total Income | Net Annual |
2004 | $18,184.00 | $14,457.00 |
2005 | $22,914.00 | $18,317.00 |
2006 | $29,218.00 | $22,675.00 |
2007 | $40,804.00 | $33,246.00 |
2008 | $39,041.00 | $32,072.00 |
2009 | $29,298.00 | $25,182.80 |
2010 | $22,201.00 | $19,770.85 |
2011 | $53,108.00 | $44,298.50 |
2012 | $2,654.00 | $2,654.00 |
2013 | $11,591.00 | $11,591.00 |
2014 | $28,124.00 | $22,076.00 |
2015 | $32,091.00 | $29,953.71 |
2016 | $64,738.00 | $50,942.30 |
2017 | $76,707.50 | $58,916.00 |
2018 (until 18/8/2017) | $9,835.00 | $7,574.00 |
Total | $480,508.50 | $393,726.16 |
28 I accept the plaintiff's submission that if the plaintiff had been able to keep working as a shift miller for Wesfeeds, assuming a salary increase of 3% each financial year, he would likely have earned approximately the amounts shown in Table 3 (below) since the start of the 2004 financial year.
Table 3: Plaintiff's Projected Earnings Between 2004 and 2017
Fin Year | Gross Annual | Net Annual | Gross Weekly | Net Weekly |
2004 | $62,915.49 | $44,819.49 | $1,209.91 | $861.91 |
2005 | $64,802.95 | $47,226.95 | $1,246.21 | $908.21 |
2006 | $66,747.04 | $49,223.04 | $1,283.60 | $946.60 |
2007 | $68,749.45 | $51,589.45 | $1,322.10 | $992.10 |
2008 | $70,811.94 | $53,755.94 | $1,361.77 | $1,033.77 |
2009 | $72,936.30 | $55,828.30 | $1,402.62 | $1,073.62 |
2010 | $75,124.39 | $57,496.39 | $1,444.70 | $1,105.70 |
2011 | $77,378.12 | $59,282.12 | $1,488.04 | $1,140.04 |
2012 | $79,699.46 | $60,771.46 | $1,532.68 | $1,168.68 |
2013 | $82,090.40 | $62,508.60 | $1,578.66 | $1,202.09 |
2014 | $84,553.15 | $64,023.19 | $1,626.02 | $1,231.22 |
2015 | $87,089.75 | $65,147.79 | $1,674.80 | $1,252.84 |
2016 | $89,702.40 | $66,741.50 | $1,725.05 | $1,283.49 |
2017 | $92,393.45 | $68,898.00 | $1,776.80 | $1,321.00 |
2018 (until 18/8/2017) | $12,810.70 | $9,475.40 | $1,830.00 | $1,354.00 |
Total | $1,087,804.99 | $816,787.62 |
Superannuation
30 The gross difference in lost earnings is $607,296.49 ($1,087,804.99 - $480,508.50).
31 Lost superannuation is calculated at 9% of $607,296.49 less 15% for contingencies = $46,458.18.
32 Accordingly, I assess the plaintiff's total past loss of earning capacity at$469,519.
Future loss of earning capacity
33 The medical evidence established that the plaintiff continues to suffer pain and restriction of movement in his left leg and left shoulder.
34 The plaintiff testified that as a result of his injuries, he is limited in the employment tasks he can perform. In particular, he finds lifting and working with his left arm above shoulder height and walking on uneven or sloped ground painful.
35 The plaintiff has found that his inability to pass pre-employment medical examinations has hampered his efforts to retain and obtain work. In particular, he was unable to continue his work for Complete Steel Projects in March 2011 as he did not pass the medical examination required for him to work on the Pluto LNG Project.
36 The plaintiff is presently 39 years of age and has, but for the accident, 28 years to his projected retirement at age 67.
37 Allowing for inflation of 3% per annum, if the plaintiff continued working as a shift miller, he would presently be earning an amount of $1,321 per week net.
38 I accept the plaintiff's submission that the plaintiff's future loss of earning capacity is calculated as follows:
$1,354 net per week - $1,082 (retained earning capacity) = $272 x 720.3 (6% multiplier for 28 years = 720.3) less 20% for contingencies and possible additional exercisable retained earning capacity = $156,737.28
Superannuation
39 I accept the plaintiff's submission that but for the accident, the plaintiff would have continued to earn superannuation of at least the superannuation guarantee rate (less 17% for taxation and administration charges) on his earnings.
40 From 18 August 2017 to the age of 67, the plaintiff's net weekly loss of superannuation benefits is likely to be at least $21.00/week.
41 The plaintiff's future superannuation is calculated as follows.
$21 x 720.3 = $15,126.30
$15,126.30 less 17% = $12,554.83
- Accordingly, I assess the plaintiff's total future loss of earning capacity at $169,292.
Future medical treatment
42 The affidavit medical evidence established that the plaintiff's symptoms are permanent and chronic. He will require treatment for the rest of his life.
43 According to the Cumpston Sarjeant Life Expectancies' Table for 2015 the plaintiff has a life expectancy of 46.27 years.
The weekly multiplier (6%) for 46 years is 834.1
44 The plaintiff gave evidence, which I accept, that he will require the following pain medication in the future to manage his ongoing pain.
Nurofen Zavance
45 The plaintiff takes eight Nurofen Zavance tablets three times per week on average.
46 A packet of Nurofen Zavance costs approximately $4 and contains 24 caplets. The weekly cost is $2.
Panadol
47 The plaintiff takes Panadol for pain relief. Each packet lasts for approximately two weeks and costs approximately $4. The weekly cost is $2.
$4 per week x 834.1 = $3,336.40
48 Mr Robinson gave evidence, which I accept, that the plaintiff will require the following medical and associated treatment in the future:
Shoulder operation
49 In his reports dated 14 February 2017 and 7 March 2017, Mr Robinson indicated an estimated cost of $10,000forthe plaintiff to have an excision of the outer aspects of his clavicle and the adjacent joint.
Left femur operation
50 In his report dated 14 February 2017, Mr Robinson indicated an estimated cost of $4,000forthe plaintiff to have the left tibia nails removed.
51 Accordingly, I assess the plaintiff's total future medical treatment at $17,336.
Past and future gratuitous services
Relevant law
52 The plaintiff claims damages for the value of gratuitous services of a domestic nature provided to him by members of his family and a friend. The assessment of damages for gratuitous services of a domestic nature is governed by the provisions of the Civil Liability Act 2002 (WA) (CLA) s 12 and s 13. Pursuant to s 12(2) no damages are to be awarded for the services if the services would have been, or would be, provided to the person even if the person had not suffered the personal injury. Pursuant to s 12 and s 13 if the amount of damages that may be awarded is $7,000 or less, no damages are to be awarded for the value of the services provided or to be provided. The amount of $7,000 was set for present purposes in Western Australia, Government Gazette, No 401 (23 June 2017) 3190.
53 In Syme v Roos Gething DCJ at [170] – [174] summarised the common law principles that apply to the assessment of the value of gratuitous services as follows:
170 At common law, a plaintiff who, as a result of negligently caused injuries, becomes in need of services may recover damages for the value of the services rendered to her gratuitously by friends and family members: Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 168 (Gibbs J), 173 (Stephen J), 192 (Mason J). The compensation is for the plaintiff's incapacity to look after herself as demonstrated by the need for the services provided to her: Griffiths 192; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, 333 (Mason CJ, Toohey & McHugh JJ); Newman v Nugent(1992) 12 WAR 119, 120, 122, 126 (Franklyn J). 'The assessment of damages, though governed by principles which are calculated to provide the plaintiff with full and fair compensation in respect of the needs created by the tortious infliction of injury, is necessarily imprecise': Van Gervan, 340-341 (Brennan J); Newman, 129.
171 The award of damages under this head is subject to the over-riding requirement that the component attributable to this head 'will be scrutinised against the test that the total verdict must be reasonably proportionate to the magnitude of the loss suffered by the plaintiff': Hodges vFrost(1984) 53 ALR 373, 381 (Kirby J); Newman, 129.
172 In determining the compensation payable, the court first determines what services are required to satisfy the plaintiff's need resulting from the defendant's wrong and then determines the value of those services: Van Gervan, 338. 'The services must have been reasonably required by the plaintiff because of her physical condition attributable to the accident': Griffiths, 164.
173 In relation to future services, it is necessary for a plaintiff to establish that as a result of the injuries caused by the accident, it has become necessary for her to receive paid assistance directly referable to his personal needs: Brocx v Mounsey [2010] WASCA 196 [1], [98], [112] (Pullin, Newnes and Murphy JJA).
174 In determining the needs of the plaintiff, the relationship between the plaintiff and the person providing the service needs to be considered. The assessment needs to take into account the fact that the family member providing the minor services claimed may have provided services of this kind even if the plaintiff had not suffered the injury simply because of the personal relationship between them: Van Gervan, 340-341; Newman, 129.
Past gratuitous services
Assistance from parents
54 The plaintiff's mother gave evidence that whilst the plaintiff was in hospital, he was visited by one of his parents every day for five days. I accept the plaintiff's submission that he is entitled to $300 for these visits as Wilson v Mcleay damages.
55 When the plaintiff was discharged from hospital he was reliant on his parents' assistance with showering for approximately five months. Showering required assistance of approximately half an hour per day or 3.5 hours per week.
56 In the initial period the plaintiff was driven to medical appointments occasionally by his parents. The plaintiff also drove himself.
57 The plaintiff's claim for assistance from his parents in the initial period of approximately 20 weeks after the accident at four hours per week totals 80 hours.
58 At an hourly rate of $17.31 per hour the plaintiff's claim for gratuitous assistance from his parents is $1,384.80.
Assistance from friend
59 The plaintiff's friend, Mr Jeffrey Baxter testified that he rebuilt the engine in the plaintiff's car. It took approximately 20 hours to remove the engine from the vehicle and rebuild it.
60 At an hourly rate of $26.50 the plaintiff's claim for assistance from Mr Baxter is $530.
61 Accordingly, I assess the plaintiff's total past gratuitous services at $2,214.
Future gratuitous services
62 The plaintiff and his partner testified that he will require assistance with heavy lifting, home maintenance tasks, gardening and maintaining his vehicles.
63 I accept the plaintiff's submission that if the plaintiff was to receive this sort of assistance for no less than half hour per week for the rest of his life then that would be reasonably modest.
64 The plaintiff is currently 39 years old.
65 According to the Cumpston Sarjeant Life Expectancies' Table for 2015 the plaintiff has a life expectancy of 46.27 years.
The weekly multiplier (6%) for 46 years is 834.1
66 The plaintiff's future gratuitous services are calculated as follows:
0.5 hour per week x $33.19/hour x 834.1 = $13,841.88
67 Accordingly, I assess the plaintiff's total future gratuitous servicesat$13,841.
Past services and aids and special damages
68 I accept the plaintiff's submission that all outstanding special damages should be paid by the defendant.
69 I also accept the plaintiff's submission that the Medicare Australia Notice of Past Benefits/Notice of Charge valid to 9 October 2013 is in the amount of $84.40.
70 The evidence established that the following special damages have been paid by the plaintiff:
| Cost |
| $1,000 |
| $2,550 |
| $489 |
| $1,605 |
| $5,644 |
71 Accordingly, I assess the plaintiff's total past services and aids and special damages at $5,728.
Interest
72 Interest on the plaintiff's past economic loss, past gratuitous services and past services and special damages is calculated as follows.
Past economic loss $469,519.64 x 3% x 14 years = $197,198.24
Past gratuitous services $2,214.80 x 3% x 14 years = $930.21
Past Services and Special Damages $5,728.40 x 3% x 14 years = $2,405.92
73 Accordingly, the total interest is $200,534.
Non-pecuniary loss
Relevant law
74 The assessment of damages for non-pecuniary lossis governed by the provisions of the CLAs 9 and s 10. Relevantly, if the amount of non-pecuniary loss is assessed to be no more than $21,000 no damages are to be awarded for non-pecuniary loss. If the amount of non-pecuniary loss is assessed to be more than $21,000 but not more than $62,500 damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over $21,000. If the amount of non-pecuniary loss is assessed to be more than $62,500 but less than the sum of $21,000 + $62,500 (= $83,500), damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows: $21,000 - (amount assessed - $62,500).
75 Apart from these restrictions, the common law principles apply.
76 As a result of the accident the plaintiff sustained a closed head injury associated with oedema in the right parietal lobe; loss of consciousness; soft tissue trauma to the neck; a fractured left clavicle; soft tissue injury and bruising to the left side of the body including the left shoulder, left leg and left ankle; an open fracture to the left tibia and fibula; bruising and soft tissue injury to the right shoulder and right hip;scarring on the shin of the left leg (which I observed to be mild);and pain.
77 The plaintiff testified that prior to the accident he was in good health and participated in sporting activities. Although he lived with his parents he was a young man and living an independent lifestyle. After the accident he lost a degree of independence, he lost his Wesfeeds job and his sport activities were restricted. He could no longer go fishing or play badminton. He could not play football or ride bicycles with his sons. Between 2004 and 2009 the pain in his left shoulder and left leg varied from day to day. At present he can no longer participate in sport activities himself or play sport with his sons. His ongoing pain affects his daily activities. On some days he cannot play with his sons because of pain in his left shoulder or left leg. His sleep pattern is interrupted by pain.
78 I accept that the plaintiff led an active lifestyle prior to the accident. The predominant accident injuries were to his lower left leg and upper left shoulder. These injuries were significant. He was hospitalised for five days. He required significant intrusive surgery for his lower left leg and he will require significant intrusive surgery in the future to remove the left tibia nail and to have an excision of the outer aspects of his left clavicle and the adjacent joint. Since the accident he has been putting up with chronic symptoms which are permanent. The pain is significant and on occasions he has passed out as result of it. He will require significant intrusive surgery in the future.
79 In my view the plaintiff should be awarded $90,000 as general damages having regard to the pain, disability, long term restrictions and future surgery.
Summary
80 I have assessed damages as follows.
| $90,000 |
| $469,519 |
| $169,292 |
| $17,336 |
| $2,214 |
| $5,728 |
| $13,841 |
| $200,534 |
| $968,464 |
Conclusion
81 The plaintiff is entitled to damages of $968,464against the defendant.
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