Yamin v Komatsu Australia Pty Ltd
[2011] WADC 144
•16 SEPTEMBER 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: YAMIN -v- KOMATSU AUSTRALIA PTY LTD [2011] WADC 144
CORAM: O'NEAL DCJ
HEARD: 25-29 JULY 2011
DELIVERED : 16 SEPTEMBER 2011
FILE NO/S: CIV 1522 of 2009
BETWEEN: ISMAIL MOHAMAD YAMIN
Plaintiff
AND
KOMATSU AUSTRALIA PTY LTD
Defendant
Catchwords:
Negligence - Contributory negligence - Assessment of damages
Legislation:
Civil Liability Act 2002
Result:
Judgment for plaintiff
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr J R Criddle
Solicitors:
Plaintiff: Simon Walters
Defendant: SRB Legal
Case(s) referred to in judgment(s):
Nil
O'NEAL DCJ:
Introduction
In November 2006 the plaintiff was injured at his place of work. That place of work was conducted by the defendant who engaged the services of the plaintiff through a labour hire company. The defendant has admitted that its negligence caused the plaintiff's injury. What remains to be decided is the amount of damages that the plaintiff should receive as compensation for his injuries, whether the plaintiff's own negligence contributed to his injury, and if so to what extent.
The injury suffered by the plaintiff was a crush injury to his fore feet. The most significant part was a fracture of his right big toe. Despite the fact that objectively the injuries appeared healed within 12 months of the accident, the plaintiff says that he is still so disabled that he is unable to cope with most of the ordinary aspects of daily living and is unable to carry out any paid employment.
Background
The plaintiff
The plaintiff is now 46 years old. He was born on Christmas Island. Although his first language was Malay, he did his schooling on Christmas Island, in English, from Years 1 10. He then completed a four year motor vehicle mechanic apprenticeship. The plaintiff worked as a mechanic on Christmas Island for two to three years before coming to Perth in 1988.
After his arrival here, he worked in a radiator shop for about a year. He then worked for 14 years as a process worker in a glass factory, including several years as a leading hand. He supervised the work of as many as eight of his fellow employees. He obtained a C‑class driving licence and forklift operating licence. About 5 years ago he completed a short computer course and in 2003 a 'Certificate IV' in Manufactured Mineral Products.
When the glass manufacturing business was wound up in 2003 the plaintiff received a redundancy payment in the amount of about $100,000. He took about two years off work before looking for a new job. In that time he said he was 'catching up with the backlog' of handyman chores for his parents and his sister. According to the plaintiff he can do 'just about anything' meaning carpentry, painting and plumbing, in addition to his mechanical trade.
In about December 2005 he was employed by a labour hire company called Integrated Services. After a week or two working in a warehouse at the airport, Integrated Services arranged for him to work in the defendant's business at its premises in Welshpool. He was engaged as a general labourer, loading and unloading trucks and sea containers and, as he said, 'assisting the cranes'.
The defendant is the Australian affiliate of a well known designer and builder of heavy equipment used in the mining and construction industries.
At its workshop in Welshpool the defendant assembles the heavy equipment designed and manufactured by its parent company. The major components are provided by the parent company although some parts of the machines are manufactured here to accommodate local conditions. One of the types of equipment manufactured by the defendant and sold in this State is the front end loader. A number of models are produced by the defendant including the WA 600 which was the machine involved in the plaintiff's accident.
It is common for these machines to be hired or to be contracted and to be charged out based on the amount of work done by the machine. For that reason it is important to know exactly how much material the loader has moved from one place to another during the course of a day. The machines are fitted so that the load carried in the machine's bucket is weighed as it is lifted by the machine and the weight is recorded on a data logger. To ensure the accuracy of the data recorded, the scale function used to measure the load in the bucket is calibrated.
An external testing company is engaged to carry out the calibration and to certify the results. The testing company supervises the calibration and provides certified weights used in the process.
The accident
The evidence of Mr Sean Ashby, the production manager of the defendant, was that in 2006 and 2007 something in the order of 20 WA 600 front end loaders were calibrated and delivered each year. An even greater number of smaller machines would also be supplied annually and each of those would have to be calibrated. The process is carried out by placing two tonne concrete weights, each the size of a bar fridge, into the bucket of the loader. Each weight has two lugs to allow a crane to lift it, using chains with hooks. The bucket is then lifted into three different positions by the loaders hydraulic system.
Mr Ashby described what he regarded as the correct procedure for loading the weights into the bucket for the purposes of calibration. He said that the bucket should be resting flat on the ground, with no energy stored in the machine's hydraulic system. He said that only at that stage and in that position should weights be placed in or removed from the bucket. That would eliminate the chance of the bucket suddenly moving while a worker was attaching or removing chains.
Once the weights are loaded the bucket is then 'curled back' and lifted to the lower, mid, and upper levels, and checked in each position.
No photographs or video were tendered to demonstrate how weights were loaded and removed from the bucket in the calibration process.
Mr Ashby's evidence with respect to the loading of weights for the calibration process is somewhat difficult to understand. As exhibit 17 shows, if the bucket is flat on the ground, the top of the bucket will substantially overhang the bottom. It would make it difficult to place a large weight suspended by a chain very far into the bucket. When the bucket was 'curled back' the two tonne weights would fall into it. It might be difficult to later remove them if, for example, they wedged in the bucket.
As far as can be determined, on the day of the accident the plaintiff had been asked by a crane driver to assist him to shift the weights needed for calibration. The crane driver was Grant Swayne. In addition to Mr Swayne, there was someone driving the front end loader, and someone else, an employee of a sub-contractor, doing the calibration.
The plaintiff was acting as 'dogman'. He was doing the running around, slinging chains and hooks, so as to assist the crane driver. He said that he had done this job with Grant Swayne once before. On the prior occasion he had suggested to Mr Swayne that there was a safer way of doing the job; safer that is than the method that Mr Swayne was using. Mr Swayne's method involved having the bucket of the front end loader, not flat on the ground, but facing upwards, already in the 'curled back' position. The weights were then added to the bucket.
The plaintiff said that on the day of the accident the bucket had been tested with four weights and the operator wanted to try five. That required that the four weights be shifted in the bucket to make enough room for the fifth weight.
The plaintiff was standing on the lip (or blade) of the bucket while it was in the 'curled back' position, waiting for the crane driver to move into position to hook the chain to the fourth weight to move it along in the bucket. While he was waiting for the crane to be manoeuvred into position, the bucket or the loader or both, suddenly jerked causing the weights to tip forward. The plaintiff's feet, in his steel toed safety boots, were pinned to the lip of the bucket. The plaintiff described the pain as like having someone squeezing his toes with pliers.
As the plaintiff said and as Mr Ashby acknowledged, the plaintiff had no qualification that would allow him to act as a dogman. As Mr Ashby said, the plaintiff should not have been doing that job.
Much emphasis was placed by the defendant on the plaintiff's failure to adhere to the defendant's safe work system, and in particular to that part of the system called 'Take 5'. The 'Take 5' process is one that directs employees to assess the hazards of any job that they are asked to do, each time they are required to do it. Employees are directed to 'Stop, Think, Do':
1.Stop, look, walk around
2.Think through the task
3.Identify hazards
4.Control & communicate
5.Do the job safely.
The process is explained to employees during induction. That is done because it is required of every employee that they hand in forms supplied to them as part of the 'Risk Management Handbook' together with their time sheets showing the amount of time they have spent performing different tasks during the day. These forms require that employees specifically identify in writing the particular task that they have been asked to perform, the manner in which the job is proposed to be carried out, potential safety or environmental hazards, and hazard control measures. The forms are required to be stapled to the employee's timesheets each day.
I have no doubt, notwithstanding his apparent reluctance to acknowledge it, that the plaintiff was in fact told about the 'Take 5' process at the time of his induction and, as he did acknowledge in the course of cross‑examination, frequently thereafter in the time that he was engaged by the defendant.
The defendant's concern with safety, at least as expressed in the documents that were tendered into evidence before me, is impressive. Mr Ashby's explanation as to how the risk management system was intended to work also suggests a genuine consciousness of the need to identify and address unsafe work practices. The 'Take 5' system has much to recommend it, at least on paper. It seems that rather than imposing mandatory safe work requirements for even repetitive tasks, every worker is encouraged and required to consider for themselves the safety implications of every task, every time they do it, and to determine for themselves and with their co‑workers how the job may be done safely. It may be that this system actually translates into reduced accidents in the defendant's workplace, although that was not the subject of any evidence before me. What is apparent on the evidence before me however is that something the size of a front end loader managed to drive through a system that was supposed to prevent accidents of this kind.
One potential failing of the 'Take 5' system is that when employees are working in groups there is a risk that they will defer to the opinion of the most senior of the group. If that person is not as gifted in properly analysing safety issues as they are in imposing their will on others then the system can fail.
There are a number of unanswered questions on the evidence before me. Was Mr Swayne's method used on just two prior occasions? How did it escape the notice of other supervisors employed by the defendant, if as it seems, it was such a significant departure from safe work practice? How was it that not only the plaintiff who was the most junior of the personnel involved in this task but the loader operator and the calibration technician acquiesced in Mr Swayne's method? What caused the bucket of the loader to jerk, tipping the weights forward, that being the immediate cause of the plaintiff's injuries?
None of these questions was addressed. Mr Ashby was not himself personally involved in any investigation of the plaintiff's accident. He was merely the recipient of information provided by others. None of the other employees who must have witnessed the accident, neither Mr Swayne, nor the front end loader operator, nor the calibration sub-contractor's employee, was called by the defendant. Despite the fact that the calibration of front end loaders was a process that took place many, many times in 2006 and 2007, no risk management form prepared by any other employee who had been involved in the calibration process was tendered into evidence.
According to the plaintiff, on the first occasion that he was asked by Mr Swayne to assist, he did protest that the method used was unsafe. He said that Mr Swayne told him that his method was one that the defendant's employees had previously used and the plaintiff ultimately accepted that. The plaintiff was not cross-examined with respect to this evidence.
The case pleaded by the plaintiff was that the plaintiff's accident 'was caused by the negligence and/or breach of statutory duty of care owed by the defendant … by reason of s 5 of the Occupiers' Liability Act 1985'. In the course of the plaintiff's opening I enquired as to what work the Occupiers' Liability Act had to do in this case and whether it was necessary to consider the inter relationship between that Act, the Civil Liability Act 2002 and common law principles. I was advised that the Occupiers' Liability Act was not in fact relevant and that this was a 'straight standard duty of care case'. Neither party suggested there was any relevant difference between the provisions of the Civil Liability Act and common law principles with respect to the breach of a duty of care.
The defendant has admitted its liability for the plaintiff's injury. No specific admissions were made as to the manner in which it was accepted that the defendant had breached their duty of care. In cases where contributory negligence is to be alleged, it would be prudent to first consider what precisely the nature of the defendant's breach is said to be, in order to allow some sensible analysis and comparison as to how and to what extent the conduct of the plaintiff is said to have caused or contributed to his injury. That did not occur here.
In my view the person least equipped to determine what risk should or should not have necessarily been involved in the calibration process was the plaintiff. It is the case that on a previous occasion he questioned the safety of the practise used by Mr Swayne. The plaintiff's view was that if the weights were modified to allow them to be lifted by a forklift, no one would need to stand by to hook or unhook the weights under a crane.
The fact is the weights did not accommodate the tines of a forklift and had to be shifted by a crane. The plaintiff acquiesced in the method endorsed by qualified heavy equipment operators and accepted by the calibration technician. In circumstances where he was directed by a senior employee as to the way this task was normally carried out the modest risk that a weight might move and injure him did not make it unreasonable of him to comply with what he was asked to do.
Having regard to the provisions of s 5K of the Civil Liability Act I find that the defendant has not established that the plaintiff was contributorily negligent.
The plaintiff's reported symptoms and disability
Following a graduated return to work program with the defendant, by about November 2007 the plaintiff was advised that he should return to 8 hours per day, 5 days per week of light duties with the defendant. Only the plaintiff's claimed inability to tolerate wearing shoes or boots for prolonged periods and to walk or stand for any duration was hindering his return to his pre-accident duties. As I will explain, rather than increase his hours, the plaintiff stopped work entirely with the defendant in about December 2007. In 2008 other efforts were made to have him return to work with extremely light duties working for the Salvation Army. Even the very limited hours he was asked to perform were beyond him he claimed. The plaintiff's case as pleaded and particularised was that he was in effect permanently incapacitated for any kind of work that he had done prior to the accident. The particulars of damages said that,
The plaintiff will continue to be restricted to the most sedentary of work for a few hours before his feet ache and swell. As the plaintiff's fibrous arthropathy and regional pain syndrome worsen with time and cold temperatures, he will not be able to perform sedentary work, and as a result the plaintiff is prejudiced when competing in the open labour market and claims a global amount of $400,000 in respect of the period from the date of the trial until that on which the plaintiff attains the age of 70 years.
The reference to a 'fibrous arthropathy' in the plaintiff's particulars of damages arises from a comment of the plaintiff's general practitioner.
A major obstacle for the plaintiff's counsel at trial was that not withstanding numerous examinations by a number of very well qualified medical specialists it was not possible to point to any injury to bone or cartilage or soft tissue that could begin to explain the nature and extent of the plaintiff's ongoing complaints of pain and disability. The plaintiff's pleaded case, apart from describing the scar on the plaintiff's right big toe and reporting the plaintiff's subjective complaints, asserted that the plaintiff suffered from 'limitations of movements of both feet, both ankles and both legs, chronic regional pain syndrome and depression'.
The most that can be said is that all the appropriately qualified medical practitioners agreed that the plaintiff had:
(1)cold toes;
(2)that his right big toe nail was deformed and that he had a scar on the end of that toe;
(3)that the fracture in the big toe had not immediately formed a complete bony union but later formed a less solid fibrous union;
(4)he had a 'mild arthropathy' in one joint of a toe, that could lead someday to arthritis and might then cause pain;
(5)the tendons of the big toes of the plaintiff's feet were somewhat prominent;
(6)the plaintiff had developed a callous on one part of the right foot.
These last two matters were however consistent with changes brought about by the plaintiff's refusal to wear shoes and his insistence on wearing thongs for the last three or more years.
All of the medical witnesses noticed a limp or as many described it an 'antalgic'- that is 'pain avoiding'- gait, although as I will describe later in these reasons, there was a significant degree of variability in the limp.
The plaintiff's pleaded case pointed to two possible causes of the plaintiff's ongoing problems: 'chronic regional pain syndrome' and 'depression'.
'Depression' was not advanced at trial as the cause of the plaintiff's problems. Why it was pleaded at all is somewhat of a mystery. The last psychological report obtained by the plaintiff's GP in November 2008 said this,
I am writing to inform you that I have concluded therapy with Ismail. Over the last three months since our last case conference Ismail has not indicated any significant improvements in his pain tolerance, as evidenced by his difficulty in increasing his work hours. Surprisingly Ismail's mood has remained relatively stable, with few depressive symptoms which are so common with people suffering chronic pain.
In the course of his opening, counsel for the plaintiff advised that there would be an issue at trial as to whether or not the plaintiff was suffering from complex regional pain syndrome (CRPS). By the time of closing addresses counsel for the plaintiff accepted that the evidence did not establish that the plaintiff met the necessary diagnostic criteria for CRPS.
It is only necessary for present purposes to say that CRPS, which has historically been known by other names including 'reflex sympathetic dystrophy', is a condition that can result when nerves that help control autonomic functions are damaged. Because of the disruption to those autonomic functions the area affected may manifest swelling, skin temperature changes and discolouration, soft-tissue atrophy and even hair growth changes among other things. It is quite rare. As Dr Gillett, an occupational physician and an approved medical specialist qualified to make assessments in respect of CRPS said, of the one to three people a week that he sees who have a presumed or suspected diagnosis of CRPS, one to three per year are shown to have the syndrome.
With respect, given the lack of evidence supportive of a diagnosis of CRPS, and the voluminous evidence from appropriately qualified medical practitioners that the plaintiff did not have CRPS, the resolution of that issue at trial was never much in doubt. Notwithstanding the concession by plaintiff's counsel with respect to the diagnosis of CRPS I was still urged to conclude that there was objective evidence that tended to support the complaints made by the plaintiff. It remains necessary then to consider the extent to which there was evidence that objectively demonstrated some underlying pathology in the plaintiff's feet which explained or at least made more credible his complaints of disability.
The medical evidence and evidence of disability
When the weights tipped forward, the plaintiff's feet were trapped between the top of the loader bucket and a weight on each foot. Because the base of each weight continued to rest on the bottom of the bucket the plaintiff's feet did not take the full brunt of two tonnes. Fortunately he was also wearing steel capped safety boots. Despite that he suffered crush injuries to both feet.
Following his accident the plaintiff was taken by ambulance to Royal Perth Hospital. He remained in the hospital for three days. During that time he was given Panadeine Forte as an analgesic.
The exact extent of the injuries caused was not entirely clear. I was not provided with any notes from the plaintiff's treatment at Royal Perth. According to Mr George Carter an orthopaedic surgeon who saw the plaintiff at the request of his GP, the diagnosis made at Royal Perth was one of crushed feet causing soft tissue injuries and a crushed open fracture of the right great toe. Mr Hill, an orthopaedic surgeon and another of the many well qualified medical experts who has examined the plaintiff over the years referred to a report that I did not see, from Dr Kosterich, who it appears treated the plaintiff at Royal Perth. In a letter dated 22 April 2008 Mr Hill said,
I note Dr Kosterich's report that records indicated a crush injury to his distal right and left foot with an injury to both great toes. X-rays taken at the time showed fractures of both great toes associated with soft tissue injury. He was admitted and taken to the operating theatre for washout of wounds of his big toes and closure. Postoperatively he was treated with bed rest and analgesia and dressing. He was discharged on 1 December 2006. He was subsequently seen in the outpatient clinic 11 December 2006 when it was recorded the wounds were healing. He was to have been seen again on 27 December but did not attend neither them [sic] nor subsequently.
After three days in hospital the plaintiff went to his parents' home to recover. He was on crutches for the first few months. He continued to take Panadeine Forte for the pain in his toes. Eventually his general practitioner, Dr Singh, removed the stitches. By 25 January 2007, according to a report from Dr Weng Chin of SKG Radiology, x‑rays showed no fracture, dislocation or bony abnormality.
As part of a return to work program the plaintiff went back to work with the defendant. He was given the relatively sedentary task of archiving and office duties. This apparently allowed him to sit and extend his legs. He began working two hours a day and this was increased to four hours. Mr Hill records in April 2008 that following discharge from hospital on 1 December and his subsequent visit to an outpatient clinic on 11 December 2006, 'Mr Yamin told me that he returned to work approximately two weeks later on a graduated basis and by 14 September 2007 he was scheduled to work eight hours per day. He said he could not manage that and six hours was his maximum'.
After he stopped using crutches the plaintiff began to drive himself to and from work. The trip took about 25 minutes each way.
The return to work program provided the plaintiff with light duties while he was given an opportunity to get used to shoes and boots. The plaintiff's evidence was that he was not able to wear shoes or boots, even with orthotic inserts, for any length of time. He said that he had to take his shoes off and would frequently work with his feet elevated. On this topic, as on a number of others, the plaintiff's memory prevented him from saying just how many hours per day he had managed to wear his work boots. It seems however that at some point he was wearing boots for between 4 and 6 hours per day.
From shortly after the time of his release from hospital the plaintiff's GP was a Dr Singh. Dr Singh had encouraged the plaintiff to engage in the return to work program and to persist in wearing shoes and boots.
On 25 September 2007 he consulted another GP, Dr Siva Krishnan. In his cross‑examination the plaintiff said that his reason for changing GP's was that 'My doctor seem - you know, he seems like he can't help me any more. There's nothing he can do here with my feet'.
According to Dr Gillett, one of the Occupational Physicians who examined the plaintiff, the plaintiff told him that he changed his GP 'after consulting for legal advice'.
Dr Siva Krishnan gave evidence for the plaintiff. In his evidence in chief he said that 'from memory' the plaintiff at the time of the first attendance was complaining of pain in both feet, with swelling in both feet that got worse towards the end of each day. Since the original consultation he has seen the plaintiff, he said, every one or two months. In his view the plaintiff's symptoms 'have slowly but progressively got worse'.
The complete extent of Dr Krishnan's notes when he saw the plaintiff for the first time on 25 September 2007 is,
Frustrated with personnel at work. Light. Six hours per day as dogman. Injury to both feet when two tonne load fell onto steel caps, causing fractured bones. Seen at Royal Perth Hospital. Getting depressed and so may need a referral to a psychologist.
The plaintiff's evidence was that he had had a problem at work with another employee. He said that was a substantial part of the reason that he stopped working for the defendant. The plaintiff said that he had been upset when he wanted to copy his payslip and the other employee would not get out of the way to allow him to use the printer. That made him sufficiently angry that he said that he 'nearly smashed someone head with a printer' but he just 'walked away'. That dispute he said was 'maybe 30, maybe 40, maybe 50' percent of the reason that he stopped work with the defendant.
No examination findings were recorded by Dr Krishnan for 25 September 2007. Asked whether that meant he hadn't examined the plaintiff he said, 'It doesn't necessarily mean that. It just means that I haven't recorded it'.
Dr Krishnan saw the plaintiff again on 24 October 2007 but apparently did not examine the plaintiff on that occasion. What he did record with respect to that attendance was, 'To take over the worker's compensation claim'. Dr Krsihnan then wrote a letter to obtain the plaintiff's records.
Dr Krishnan next saw the plaintiff on 24 October 2007. Dr Krishnan accepted that his notes suggest that he did not examine the plaintiff 'on that day at all'. Dr Krishnan did however sign a 'Progress Medical Certificate' that day.
In the section of the Certificate entitled 'Progress Report,' which asks for clinical findings and diagnosis, Dr Krishnan recorded simply 'pain in right big toe'.
In his evidence-in-chief Dr Krishnan was asked what he had observed in particular about the plaintiff's feet and said, among other things, 'he does have some symptoms in the right but I think that's related to the un-united fracture in his right great toe. So there is some tenderness there but it's certainly his left that gives him the majority of his symptoms'.
In cross-examination Dr Krishnan was asked about the Progress Report note and the absence of any reference to the left foot, 'So you accept that there is nothing mentioned there about the left foot as being a problem at that stage?'. He answered, 'I accept that I didn't write it down, yes'.
Despite the fact that the plaintiff had been successfully increasing his hours at work and had been certified fit to return to 8 hours work per day by his previous doctor, Dr Krishnan certified the plaintiff 'totally incapacitated for work' from 23 October to 29 October, the date of the next scheduled appointment.
At the next appointment Dr Krishnan wrote letters of referral to specialists for the plaintiff. He conceded that his notes of that occasion suggest that he did not appear to have conducted an examination of either of the plaintiff's feet. Dr Krishnan was asked whether, even at that very early stage and with the limited information available to him, he had 'taken "a rather pessimistic view" about the plaintiff's future'.
In support of this proposition, Dr Krishnan was taken to a referral letter that he had written to a Mr Salleh, an orthopaedic surgeon, on 29 October 2007. The particular passage relied upon by counsel for the defendant said of the plaintiff, 'He is becoming increasingly frustrated. He understands that he is unlikely to ever return to general hand work. To address these issues I have referred him to a psychologist and a work rehab provider'.
Dr Krishnan denied that the unlikelihood of a return to work was a conclusion that he himself had reached. Rather, he explained emphatically, that was the plaintiff's understanding and it was not Dr Krishnan's view at that time. Because the plaintiff had that particular understanding of his condition, Dr Krishnan said, he had determined to refer the plaintiff to a psychologist and also to Mr Salleh.
Dr Krishnan was then shown the letter he had written on the same day to the psychologist. It said, 'Thank you for seeing [the plaintiff] who is becoming depressed about his work related crush injury to his feet and is unlikely to go back to his original job as a forklift driver yardman. I suppose he would fit into the criteria of a PTSD'. Putting aside Dr Krishnan's venture into the fields of psychology and psychiatry, unsupported on his account of the history that he had taken by any consideration of the ordinary diagnostic criteria of post‑traumatic stress disorder, Dr Krishnan was quite plainly expressing his view that the plaintiff's injury meant that he was 'unlikely to go back to his original job'. Confronted with this, Dr Krishnan admitted that that was in fact his view at the time.
It was not simply a pessimistic but a startling conclusion to have reached based on the nature of the injuries, the plaintiff's demonstrated return to work on light duties, and the limited information then available to Dr Krishnan.
It seems that after the plaintiff consulted Dr Krishnan he never again wore shoes. From that time he only wore thongs.
On about 14 December 2007 a case conference was arranged with the plaintiff's rehabilitation provider. At that conference it was proposed to the plaintiff that he increase his work to eight hours a day, although two hours of that could be done without work boots. The plaintiff's recollection of this conference was vague but he did not dispute that he had been so advised in a conference.
Within two weeks of that conference the plaintiff stopped going to work with the defendant. In his cross‑examination he said that he had stopped because 'I couldn't seem to go on any more'. A further return to work program with the Salvation Army in 2008 required the plaintiff to help sort and price clothing for resale. It seemed that the plaintiff was unable to even manage that for three hours a day three days per week. He often failed to attend, sometimes with other health problems such as throat and sinus infection or back problems for which Dr Krishnan would certify the plaintiff unfit to work. In December 2008 the plaintiff failed to attend for about two weeks because of some 'personal matter' that I infer may have had to do with his mother's illness.
As the records of Taryn Busby showed, the plaintiff's attendance at the Salvation Army over a period of 12 months was poor. He rarely worked more than one shift of three hours per week despite the fact that even Dr Krishnan had certified him as fit to work up to 18 hours per week. He was frequently absent because of illnesses unrelated to his feet including feeling 'unwell, back pain, and stomach upset'. The plaintiff did not keep the occupational therapist advised of his absences from work despite her repeated requests that he do so, nor did he advise the Salvation Army store of his absences of up to a week at a time. The plaintiff was verbally abusive to Ms Busby when she sought explanations from him. In early 2009 because of the plaintiff's sporadic attendance it seems that the rehabilitation provider finally gave up with respect to the plaintiff's vocational rehabilitation program. Since then, according to what he told various medical witnesses, the plaintiff simply sat around at home with his feet up for the most part.
Dr Siva Krishnan
Dr Krishnan appears to have been the first to form the view that the plaintiff suffered from CRPS. Although recognising that a certain diagnosis of that condition was beyond his expertise, particularly since this was apparently only the second time in about 25 years of practice that he said he had encountered such a thing, he was of a view that that was the plaintiff's problem. When asked what signs and symptoms he had observed that led him to that conclusion he said it was the mottled appearance of the plaintiff's foot, as well as temperature changes related to swelling, and the plaintiff's description of his disaesthesia. That term Dr Krishnan said, described an abnormal sensation of discomfort as opposed to acute pain in the affected area, a discomfort out of proportion to the stimulation involved.
Dr Krishnan referred the plaintiff to Mr Reza Salleh, an orthopaedic surgeon, among others. Mr Salleh provided Dr Krishnan with a report dated 13 November 2007. Among other things, Mr Salleh said that the plaintiff had suffered a 'traumatic neuropraxia with the crush injury and now has the elements of a chronic regional pain syndrome'. For that reason he thought that the plaintiff would benefit from a review by a Chronic Pain Specialist. Dr Krishnan arranged for a referral to the specialist Dr Max Majedi. Dr Majedi did not give evidence at trial. Nor were his reports tendered. From other evidence it appears that Dr Majedi treated the plaintiff with nerve blocks and the medication 'Lyrica', both specifics for CRPS. Like every other treatment offered to the plaintiff, neither had any effect in reducing the plaintiff's symptoms. As Mr Salleh records in his letter to Dr Krishnan of 15 April 2008, the plaintiff was 'offered treatment by Dr Majedi the Chronic Pain Specialist, but he is not keen to continue with this'.
George Carter
In June 2008, Dr Krishnan sent the plaintiff to Mr George Carter for an opinion and management program. Mr Carter was and is an experienced orthopaedic surgeon who specialises in foot surgery. Mr Carter was aware that it had been suggested that the plaintiff's continuing pain and resulting disability was a consequence of CRPS.
In a letter to Dr Krishnan dated 20 June 2008, Mr Carter describes the history of symptoms taken from the plaintiff and the results of his examination. He observed that the plaintiff,
has no swelling, there is slight enlargement on the right first metatarso phalangeal joint with a markedly deformed nail on that toe. He has normal light touch (10 gram filament) as well as normal vibration sense. His reflexes are normal. Hip, knee and ankle movement are all normal, as is his subtalar movement. … Circulation is satisfactory with no difference in colouration of the skin or skin temperature. Both pulses are normal and palpable. … At this stage the findings do not support the previously seen signs.
In his evidence before me Mr Carter explained that the light touch test and the test for vibration were significant in trying to determine whether there had been any nerve damage. The results of these tests suggested that there had not.
In a letter of 9 December 2008, Mr Carter described the results of a subsequent examination,
On examination he was tender over the right metatarso phalangeal joint and the interfalangeal joint of his great toe, and claimed hypersensitivity when under a shower. The symptoms were not typical of a chronic regional pain syndrome, although it did swell during the day. There is no localised hypersensitivity over the phalanx, no specific treatment program was recommended on this occasion.
Mr Carter told me that the reference to 'swelling during the day' was not because of anything that he himself had observed but rather because of what the plaintiff had told him. All of the medical witnesses who gave evidence before me appeared to either explicitly or implicitly accept the plaintiff's subjective complaints at face value.
While the plaintiff was originally referred to Mr Carter for consultation and treatment by Dr Krishnan an insurer also sought a report from Dr Carter. It was provided on 8 January 2009. Mr Carter described the results of his previous examinations and the histories that he had taken from the plaintiff. That included the plaintiff's continuing complaints of soreness and swelling in his toes, made worse by standing and walking, and Dr Carter's view that the plaintiff's 'overall prognosis was good for a gradual reduction and return to full duties as soon as he could wear his steel cap boots etc for a satisfactory time'. He answered questions put in the insurer's letter as follows:
1.Our finding on examination: … are as outlined in the narrative above. X-rays as reviewed on the computer at RPH, revealed no specific bone or joint abnormality proximal in the foot. … There was some slight evidence of arthropathy, proximally in the first and second rays on the right. The increase in vascularity is not as great as one would expect in a chronic regional pain syndrome.
2.Diagnosis: my diagnosis is of a minor soft tissue and bony injury to the right and left great toes. I feel there is a degree of magnification of the symptoms in this case.
…
4.Inconsistencies in the level of symptoms reported by the patient are not commensurate with the observed findings and the healed pulp space crushing and minor fracture. These should have largely healed up within three months of the original injury.
…
6.Current work capacity: I feel that Mr Yamin should be able to return to full duties and his hours at work should be increased.
7.Opinion progressing/improving as expected: The patient is improving at a slower than normal rate, and I have been unable to make an exact diagnosis of why that was the case. Further opinion from a pain therapist and a psychologist may help answer this question.
…
10.Prognosis and further comments: I feel that the patient has been off work for about two years at this stage, and it appears that he is well accommodated to that, and it will take a lot of encouragement and repetitive increasing of his work role, in terms of hours and the amount of work he does to enable him to achieve the obvious outcome, which is a full return to work in his former capacity.
In a letter to the plaintiff's solicitor on 6 July 2009, Dr Krishnan referred to the plaintiff's symptoms of pain and tenderness in both feet, a hyper‑sensitivity over the first and second toes on the right foot and the sensation of a lump under the left second and third toes. He said that there was 'an ache in both feet and there is swelling and sometimes colour changes in the feet'. Despite the advice he had received from Mr Carter the orthopaedic foot specialist, Dr Krishnan said of the plaintiff:
I do believe that he has the combination of a neuroma, fibrous arthropathy, and an un-united right distal 1st phalanx fracture.; all of which contribute to his chronic regional pain syndrome. Clinical Professor Dr Rob Will concurs with this.
…
He will not be able to return ever to his previous type of work. Unfortunately he had unacceptable side effects to the medications that were used to treat his pain. He might in future be able to do some sedentary home based type duties that he can take his time over. … He will not be able to do any duties which involve standing, sitting for too long or any job which involves a dependent position of his feet.
Dr Krishnan explained that a 'dependent position' in this context meant simply having the feet down, as in standing or walking. There was no evidence before me from Dr Will.
It was undoubtedly the same conclusions that led Dr Krishnan to write a letter on 7 July 2010, 'To Whom It May Concern'. In that letter he said of the plaintiff, 'The above has had to obtain the services of a gardener to mow his lawn and help with general gardening as a consequence of the accident on 28/11/06. This inability continues to date. He has and will need the help of a housekeeper for heavier domestic duties like vacuum cleaning, et cetera'.
I have already referred to Dr Krishnan's evidence that, rather than improving, the plaintiff's condition had continued to slowly but progressively deteriorate.
Dr Krishnan's manner was confident and assured throughout his examination‑in‑chief and the beginning of his cross‑examination. His demeanour changed rather dramatically when asked to produce any record of an examination recording objective findings to support some of the conclusions that he had reached. He became visibly unsettled.
I formed an adverse view of Dr Krishnan as a witness. I have referred to the inexplicable conclusions that he reached - inexplicable that is based on the empirical evidence then available to him. His notes did not begin to support the conclusions that he expressed, at any time. In his cross‑examination he was frequently evasive. I am not prepared to accept his evidence.
Dr Harper
Dr Harper was called on behalf of the plaintiff. Dr Harper has been an occupational and public health physician since 1986. Dr Harper saw the plaintiff in person on three occasions, 11 March 2009, 30 June 2010 and 13 June 2011. On each occasion Dr Harper provided a report to the plaintiff's solicitor. Dr Harper recorded the history provided by the plaintiff and the plaintiff's complaints. In particular he records the plaintiff describing intermittent pain ranging in severity from '2 1/2 out of 10 to 7 out of 10' and 'constant pain on a daily basis with pain increasing in severity during the day'. The plaintiff said that aggravating factors are 'walking and standing' although 'sitting can also be aggravating'. He described 'a constant limp which gets worse later in the day' and 'swelling in the feet towards the end of the day' with a 'variation in colour from white to a dark discolouration in his toes'.
In his evidence before me Dr Harper referred to a bone scan that the plaintiff had been given which is also referred to in Dr Harper's report. There were, as Dr Harper said, some points in the feet that showed an 'asymmetric blood flow'. Dr Harper said that given the injuries that had occurred that was not particularly surprising. The bone scan, he said, 'reported no definite focal abnormality to explain pain in the region of the second left MTP joint'.
At his first examination the plaintiff reported to Dr Harper that he had 'discontinued fixing cars and socialising'. He described his difficulty with dressing and on some days showering. His ability to sit was reduced, he said, because that aggravated his ankle symptoms. He also said that his standing and walking tolerance was reduced and that he had difficulty driving for a long distance.
On physical examination, Dr Harper observed 'a slight limp favouring the right leg' and 'a slight reduction of agility'. He found a normal range of movement in the lumbar spine and normal power, reflexes and sensation in the plaintiff's legs. Dr Harper did not observe any localised wasting in the thigh or calf nor did he observe swelling or discolouration. He reported increased sensitivity to light touch on the toes of the right foot and the top of the forefoot on the left side as well as tenderness over the tip of the right great toe. The only thing that it could be said that Dr Harper observed that he thought might not have been entirely normal was a degree of coldness in the toes of both feet by comparison to the plaintiff's ankles.
At that first examination Dr Harper concluded that the residual disability affecting both feet was mild to moderate and residual impairment was mild. He expected the plaintiff's future work capacity to improve. However, as he accepted in cross-examination, based on the plaintiff's reports of the degree of pain that he was experiencing he concluded that the plaintiff's work capacity was reduced, although he had a retained capacity for part time restricted work of 'a sedentary nature'. Following the first examination Dr Harper recommended pain management counselling because in his view the plaintiff's 'principal problem was impaired adjustment to his ongoing pain'. He said then, 'I see no indication for further medical investigations or specialist referral'.
The plaintiff told Dr Harper in July 2010 that he was 'really struggling' to get on his feet each day at the time that he discontinued his rehabilitation program with the Salvation Army and that he had not worked since. At the same time he told Dr Harper that his standing tolerance was 'less than half an hour'. He told Dr Harper that so far as the activities of daily living,
He spends every day with his feet elevated except when he is doing some walking around the house. He said that apart from this he is not doing anything at all. … He says that his foot symptoms interfere with dressing. He also reports difficulty in the shower. … He says that standing in the kitchen or bathroom is problematic. On some nights he will neglect doing dishwashing because he doesn't want to stand. Standing tolerance he says is less than half an hour. He says that walking tolerance is approximately half and hour or less wearing thongs. … He has discontinued handyman jobs and he only does tasks which he can do sitting. He has discontinued housework.
At that time Dr Harper said, 'residual disability is of moderate severity. I note the specialist reports provided and I share the view that he is not suffering from a significant orthopaedic impairment. His residual disability is rather one of impaired adjustment and pain. I consider his disability to be genuine'. When Dr Harper examined the plaintiff in June 2011, the plaintiff told him he had 'reduced his exercising and he now uses a stepper once a week at most'. There had not been 'any significant improvement'. 'With regard to activities of daily living he says there has been no change from the description in my previous reports except that he now lives with his mother and step-father and all the housekeeping, shopping and cooking is done by his mother'. Those difficulties stand to be contrasted with what the plaintiff was capable of in the months of his graduated return to work at the defendant's business. While the duties he was performing were relatively light, he was working up to six hours a day and driving himself to and from work.
Based on what the plaintiff told him at a further examination on 13 June 2011, Dr Harper said that the plaintiff's activities of daily living were 'unchanged from my previous reports'. On 13 June 2011 Dr Harper concluded that the plaintiff had a disability that was 'moderately severe'.
Dr Harper was then shown some surveillance video footage that had been take of the plaintiff in April and May 2011. I will refer to that evidence in more detail later in these reasons. For now it is sufficient to say that the activities of the plaintiff in the video were, as Dr Harper said, 'inconsistent with the assessment that I've made based on history'.
Anne-Marie Carr
Given the weight of medical evidence against the existence of any pathology that could explain the plaintiff's complaints, and, as counsel for the plaintiff described it, the 'regrettable' absence of evidence from other doctors who had treated the plaintiff, the plaintiff's case relied heavily on Dr Krishnan and Ms Carr, a registered podiatrist. Those witnesses it was submitted provided evidence of objective symptoms consistent with the problems described by the plaintiff that supported and made believable his evidence. I have already referred to my conclusion about Dr Krishnan.
Ms Carr gave evidence for the plaintiff. Ms Carr has provided podiatric care and treatment for the plaintiff from 19 December 2008 to the present. She saw him some 21 occasions, on average about every six weeks. Most of her care has been in cutting and trimming the plaintiff's toenails and in particular the toenail of the damaged right great toe. Ms Carr provided five letters with respect to the plaintiff's condition. The first of these, addressed 'To Whom It May Concern', on 20 November 2010, refers to the coldness of the plaintiff's toes, despite the fact that it was a hot day. Ms Carr refers to her suspicion of 'some form of peripheral nerve damage to be the cause of this where the vascular system has become spastic'. In the other letters, Ms Carr reports among other things the plaintiff's ongoing complaints of pain and in particular abnormal pain reactions. The pain that he experienced was so serious she said that 'he is scarcely able to tolerate having his toenails cut in particular the toenail of the right great toe'. In her letter of 4 June 2011, Ms Carr records the fact that the plaintiff's toes were 'extremely cold' and on this occasion 'had a bluish/dusky red hue'.
Her letter of 10 July 2011 is a report to the plaintiff's solicitor. In the letter, Ms Carr says that she believes the plaintiff's condition to 'have deteriorated and to be deteriorating over time'. She refers to what she describes as the 'unnaturally cold' state of his feet despite warmer temperatures over summer. She refers to the plaintiff's subjective complaints of pain. Mr Salleh, the orthopaedic surgeon acknowledged his lack of expertise and was cautious with respect to a diagnosis of CRPS. By contrast Ms Carr unhesitatingly diagnoses that 'both feet are affected with what is recognised to be complex regional pain syndrome'. She again on this occasion refers to the feet not merely being cold but 'swollen, the right being worse from the left'. She refers to the 'extensor tendons shortening, causing retraction of digits'. In her evidence before me, she accepted that the plaintiff's constant wearing of thongs would cause that result to those tendons because of the necessity for the toes to 'grip' to try and get traction. She also said that so far as swelling was concerned, 'that's not every single time I've seen him but intermittently there'll be swelling'.
When pressed to identify occasions where she had made a clinical note of swelling or discolouration of the plaintiff's feet she acknowledged that on just one occasion – 28 June 2010 she had noted that the plaintiff's toes appeared swollen, and only on 4 June 2011 had she noted the colour. As to this she allowed, 'that would possibly be related to the fact that it was probably a cold day…'.
Ms Carr referred to the long and frequent conversations that she had with the plaintiff with respect to the condition that he said he had been reduced to by his injury and the difficult circumstances of his life as a result. It was apparent that Ms Carr had accepted the honesty of the plaintiff's description of his pain and was sympathetic towards the plaintiff's situation. Although she had seen the surveillance DVDs, nothing she saw she said altered her view about the plaintiff's problems. The video was consistent she said initially, with what the plaintiff had told her, that he was in fact able to stand for an hour to an hour and a half. When she was pressed in cross‑examination to confirm that the plaintiff had told her he could stand for an hour and a half without discomfort, she said, 'Well, no, he tells me that he can stand for about an hour, an hour and a- no he didn't say standing, he said "I can walk around for about an hour or be in one position for an hour, an hour and a half before it gets uncomfortable". So he said that if he sits for any period of time he has to get up, or if he lies down for any period of time he feels he has to get up and move around and change position'.
It is entirely understandable that Ms Carr might feel sympathy for someone with whom she had established a friendly therapeutic relationship, but I do not accept that there was anything that she saw about the plaintiff's feet that supports some underlying pathology causing the plaintiff's complaints of pain and disability.
Dr Robert Gillett
Dr Gillett is an occupational physician with an impressive background and qualifications. He saw the plaintiff on five occasions between October 2007 and 20 January 2011. Dr Gillett was called to give evidence by the defendant.
Dr Gillett saw the plaintiff for the first time on 18 October 2007. At that time as the plaintiff told Dr Gillett, the plaintiff had,
returned to work on modified duties and most recently has been undertaking archiving duties. [He] indicates that he has been off work for the last two to three weeks which he states is because of stress and concern regarding his future.
I note that he is currently working six hours a day.
Mr Yamin informed me that he has been commenced on treatment for depression and he questions his ability to return to work.
The plaintiff told Dr Gillett that his current symptoms were pain in the right toe with generalised soreness in both feet. He also complained of 'some associated swelling in the forefoot bilaterally … present for the last three or four months'. He told Dr Gillett that as he lives alone, 'he undertakes most daily duties'.
On examination Dr Gillett saw some swelling over the metatarso phalangeal joint of the left foot 'but otherwise no evidence of neurological compromise either sensory or motor'. His examination of the plaintiff's right foot, 'identified the presence of a previous laceration of the right great toe, over the outer aspect of the nail with some degree of hypersensitivity'. There was a reduced range of movement over the inter‑phalangeal and the first metatarso phalangeal joint. Again, there was no evidence of motor compromise on the right foot.
At that time Dr Gillett thought that the plaintiff's 'symptoms in the right foot emanate from a fibrous union over the previous comminuted fracture of the distal phalangeal'. That is, from the x-rays it did not appear that there had been a solid bony union where the fracture had been, but something less solid. He continued:
Beyond that there is very little to find on radiological investigation. Certainly from a clinical perspective there is no evidence of reflex sympathetic dystrophy affecting the left limb … from a physical perspective it would be my opinion that Mr Yamin should be able to commence a progressive return to his pre-accident duties. I think it would be prudent for him to be reviewed by WA Surgical Bootmakers or a like organisation to assess the need to modify safety footwear. Beyond that the expectation is that he should be able to return to his pre-accident duties progressively.
In answering specific questions put by the insurer, Dr Gillett said:
Q3.It is difficult to correlate reported symptoms with the clinical and investigative findings. The only clear picture on detailed radiological investigation is that of probable fibrous union of the comminuted fracture of the distal phalanx the right great toe. There is also some evidence of traumatic scarring (fibrous tissue) around the fracture site.
Q4.In my opinion I am not able to fully explain the current symptoms and limitations in relation to the work injury of 28 November last year.
…
Q7.From a physical perspective I am not aware of any factors impeding Mr Yamin's recovery and return to work, however I do note in the past two weeks he has been treated for a psychiatric disorder and this may well be impeding his smooth progression back to work.
Q8.As I have indicated above, from a physical perspective Mr Yamin following satisfactory modification (if required) of his safety footwear he should be able to return to his pre-injury role as a general hand with immediate effect.
…
Q12.I would encourage return to pre-accident duties at the earliest opportunity.
On 7 November 2007, after Dr Gillett had obtained further x-rays, MRI and bone scan of the right foot, he provided a further report. On that occasion he said:
In my opinion, Mr Yamin, based on the history, examination findings and subsequent investigations, has wholly recovered from the workplace incident and injury of 28 November 2006.
…
Beyond the need for review of orthotic changes to his footwear as outlined in my report of 31 October 2007, it would be my opinion that any incapacity for work is no longer a result of the workplace incident of 28 November last year.
Nothing that Dr Gillett saw on his subsequent examinations of the plaintiff changed his views in this respect. While he accepted that injuries of the kind suffered by the plaintiff would be expected to cause pain, he did not believe that the plaintiff's injuries in 2006 had left him with any physical impairment that would prevent him from returning to his pre‑accident duties.
Dr Geoffrey Gee
Dr Gee is a consultant in pain management and a specialist anaesthetist. He saw the plaintiff on four occasions between 6 October 2008 and 27 June 2011.
As Dr Gee observed in October 2008, following his examination of the plaintiff, 'Mr Yamin has sustained injuries to his big toes on both feet. He has no clear features to provide a dignosis complex regional pain syndrome. He does not have the objective diagnostic criteria for CRPS as outlined by table 16/16 of the American Medical Association Guidelines …'. Asked whether there were any inconsistencies between the plaintiff's reported complaints and his objective findings, Dr Gee said 'allowing for Mr Yamin's statement of pain and restriction I have major concerns when he can literally stand and support his weight on tip toes initially on both legs and then individually on each leg without any specific difficulty'.
Dr Gee concluded that the plaintiff had a current work capacity and that he was currently fit to perform his full pre-injury hours as a general hand.
Nothing that Dr Gee saw in his subsequent examination changed his opinion in that regard. It was sought to have Dr Gee give evidence in respect to his observations and conclusions having seen the surveillance videos that I have referred to. That evidence was objected to on the basis that the plaintiff's legal advisors had had 'no notice of this at all'. It is the fact that the existence of the DVDs was revealed later than the rules of court require. Dr Gee had not had time to provide a report in that regard to be given to the plaintiff's legal representatives. Given his prior conclusions at a time when he at least implicitly accepted the plaintiff's complaints of claim his conclusions after seeing the surveillance videos are not difficult to anticipate.
Mr John Hill
Mr Hill is a consultant orthopaedic surgeon. He saw the plaintiff on five occasions between 14 April 2008 and 12 July 2011 at the request of the defendant's insurer. Mr Hill noted the absence of any significant clinical evidence of the criteria for CRPS. He concluded that the plaintiff's subjective disability appeared to be greater than the objective clinical and radiological findings warranted. Accepting at face value the plaintiff's complaints of limiting pain, Mr Hill concluded that the plaintiff was then 'currently fit to perform a wide range of semi-sedentary and light physical activities. This would be facilitated by the wearing of an extra depth shoe or boot to accommodate the great right toe'. He thought that the plaintiff 'could commence a graduated return to restricted duties as a General Hand at Integrated. At this time there would be some restrictions in regard to long periods of standing and working on uneven ground … he may continue to have some permanent restrictions to the extent that he may not be able to fully return to his pre-injury duties as a general hand at Integrated'. Mr Hill said 'I cannot really explain why his subjective disability is not improving. I can see no physical reason for this'.
Period 28/11/06 to 03/03/2007
$1,116 x 15 weeks x 9% x 85%
$ 1,280.60
Period 14/03/07 to 01/04/09
$558.00 x 107 weeks x 9% x 85%
$ 4,567.50
Interest on total past superannuation
Period 28/11/06 to 01/04/09
$5,848.10 x 3% x 2.35 yrs
$ 412.29
Total past loss of superannuation & interest
$ 6,260.39
Up until 3 July 2011 the plaintiff received gross compensation payments in the form of weekly wages of $169,558.07. Given that the amount of the actual past loss is exceeded by the compensation that he has received, there is no entitlement to interest on the past loss of income
Future loss
It follows from the findings that I have made that the plaintiff has no entitlement to damages for lost future earning capacity.
Past medical expenses
The workers compensation insurer has paid $45,986.26 with respect to the plaintiff's medical rehabilitation and travel expenses to 28 July 2011. In his scheduled special damages the plaintiff claimed an additional $5,022.28 for a variety of items, none of which were justified on the evidence before me. From the plaintiff's schedule of damages, I accept the defendant's submission that the following amounts should be allowed in the plaintiff's schedule of damages:
| 1 | Kelmscott Stargate | $ 17.95 | ||
| 2 | Ann Marie Carr | $ 329.00 | ||
| 3 | Jardine's Chemmart Pharmacy | $ 62.25 | ||
| 4 | Thornlie Centre Pharmacy | $ 102.05 | ||
| 6 | Chemist Warehouse Gosnells | |||
| a | 19.10.2010 | $13.00 | ||
| b | 19.10.2010 | $31.48 | ||
| c | 10.03.2008 | $40.25 | ||
| d | 11.01.2011 | $12.70 | ||
| g | 12.02.2007 | $16.95 | $ 114.38 | |
| 10 | Champion Drive Pharmacy | $ 23.90 | ||
| Outstanding Medical Expenses | ||||
| 1 | AKMD Pty Ltd | $ 62.90 | ||
| 2 | Ann Marie Carr | $ 643.00 | ||
| 3 | Bowen & Remedial Massage Clinic | $ 120.00 | ||
| TOTAL | $ 1,475.43 | |||
The plaintiff is therefore entitled to $47,461.66 for past medical expenses, rehabilitation and travel consisting of the money paid by the worker's compensation insurer and the amount that allow from the schedule of damages.
Future medical treatment
The defendant in its submissions concedes an amount of $3,000 for future podiatry and orthotics and $1,000 for other potential medical expenses relating to the plaintiff's foot. In my view the concession is generous but I find the plaintiff is entitled to a total of $4,000 for future medical treatment including podiatry and orthotics.
Gratuitous services
There is no evidence before me that I am prepared to accept that would support a claim for gratuitous services or a claim for gratuitous services that would exceed the threshold set out in the Civil Liability Act for damages of this kind.
General damages
The defendant submits that an appropriate award of general damages here is $35,000. In the circumstances, given the complete lack of evidence as to loss of amenities of life or at least lack of any evidence which I am prepared to accept and the fact that the plaintiff's injury, painful as it must have been initially required just three days hospitalisation and oral analgesics, $35,000 is in my view generous but I will award that amount as general damages. The provisions of s 9 of the Civil Liability Act require that that amount be reduced to $17,500.
Summary
I set out below the summary and total of the damages that I award.
Past economic loss (inclusive of workers compensation payments) $ 76,446.00 Past loss of superannuation and interest $ 6,260.39 Past medical expenses $ 47,461.66 Future medical, orthotic and podiatry expenses $ 4,000.00 General damages $ 17,500.00 Total $151,668.05
During the trial I asked the parties to exchange their calculations of loss so that they could advise me of any criticisms of the other side's respective methods during closing submissions. No criticisms were made of either the defendant's original calculations or the amended schedule filed to correct the errors discovered. I have accepted the method and now the calculations used by the defendant in its Amended Schedule of Damages. Should the calculations still be subject to some error or oversight, I will hear further from the parties on that point.
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