[1982] HCA 3
Amoud v Al Batat [2009] NSWCA 333
Graham v Baker (1961) 106 CLR 340 347
[1961] HCA 48
Todorovic v Waller (1981) 150 CLR402 at 412
[1981] HCA 72
Rabay v Bristow [2005] NSWCA 199
State of New South Wales v Moss (2000) 54 NSWLR 536
[2000] NSWCA 133
Source
Original judgment source is linked above.
Catchwords
[1982] HCA 3
Amoud v Al Batat [2009] NSWCA 333
Graham v Baker (1961) 106 CLR 340 347[1961] HCA 48
Todorovic v Waller (1981) 150 CLR402 at 412[1981] HCA 72
Rabay v Bristow [2005] NSWCA 199
State of New South Wales v Moss (2000) 54 NSWLR 536[2000] NSWCA 133Guzman v Zammit [2003] NSWCA 224
White v Redding [2019] NSWCA 152
Fox v Wood (1981) 148 CLR 438[1981] HCA 41
Category: Principal judgment
Parties: Plaintiff: Adam Bsisou
Judgment (7 paragraphs)
[1]
OUTLINE OF THE CASE
The plaintiff sues for personal injury damages, he having been injured in the course of employment with his father's tree-lopping business. His father is the defendant named in the proceedings. For convenience, I will continue to refer to the defendant as the plaintiff's father.
The plaintiff's entitlement to damages is at common law as modified by Division 3, Workers Compensation Act 1987 (NSW) ('the Act'): s 151E of the Act. The only damages that may be awarded are damages for past economic loss due to loss of earnings and damages for future economic loss due to the deprivation or impairment of earning capacity: s 151G of the Act. For the purposes of s 151H of the Act, the threshold for entitlement to damages of 15% permanent impairment is well exceeded. The agreed assessment is 33%. In awarding damages, the Court is to disregard the amount, if any, by which the injured worker's net weekly earnings would (but for the injury) have exceeded the amount that is the maximum amount of weekly payments of compensation under s 34 (even though that maximum amount under s 34 is a maximum gross earnings amount): s 151I. There is no dispute that the adjusted amount under s 34 of the Act to be applied is $2,177.40.
In compliance with the evidence and with the provisions of s 151IA of the Act, damages for future economic loss are to be calculated to a retirement age of 67 years. Pursuant to s 151J of the Act, a discount rate of 5% is to be applied in calculation of future economic loss.
The Court must consider the steps that have been taken by the plaintiff and that could reasonably have been taken by the plaintiff to mitigate his damage: s 151L (1). The defendant concedes that the plaintiff has, to the date of hearing, been unfit for work and that the evidence does not identify suitable employment. There is no suggestion that the plaintiff has not sought appropriate rehabilitation training: s 151L (2). Generally, the defendant does not put that the plaintiff has failed to take steps which he could reasonably be expected to have taken toward his rehabilitation and toward achieving earnings for which he retains a residual capacity, to the date of hearing. The defendant submits that the plaintiff retains a residual earning capacity for which the evidence does not identify a specific type of work or associated earnings.
In Closing Oral Submissions, counsel for the defendant identified the two issues for determination to be:
1. What the plaintiff would have earned but for his injury; and
2. What the plaintiff is capable of earning.
Since the date of his injury, the plaintiff has been paid workers compensation weekly payments which to the date of the Judgment totalled $138,821.00.
The plaintiff was born on 26 September 1997. When injured on 26 November 2015 he was just 18 years of age. He completed his Higher School Certificate in 2014. He was not a high academic achiever and in oral evidence described himself as a good student during primary school. During high school, he determined that he wanted to go into business for himself as his father had done. From the time of that determination he was more interested in completing school than in achieving grades best reflecting his abilities. His mother encouraged him to complete school. Consistent with his frank manner of giving evidence, including giving answers sometimes against self-interest; in chief, the plaintiff described his high school results as barely passing each exam and in cross-examination he expanded on this to explain that he considered himself to have had the intelligence to have gone on to university if he had wanted to.
Following completion of school the plaintiff worked at McDonald's. In February 2015 he commenced study of Arboriculture at TAFE toward obtaining certificates and then a diploma in working toward his chosen future path of following his father in the tree lopping business.
The plaintiff's father separated and divorced from the plaintiff's mother many years before. At the time of his injury, on the whole of the evidence, the plaintiff was a normal young adult, living at home with his mother, stepfather, a younger brother and an older sister. It was a happy and normal family environment. The plaintiff enjoyed good relations with his stepfather.
In December 2014 the plaintiff suffered an injury to his left lower leg in a motorcycle collision. The evidence does not support a finding of ongoing disability resulting from that injury of any significance in this case. In closing submissions the defendant did not make a submission otherwise. There is no evidence of a pre-existing condition or disability affecting the plaintiff's earning capacity.
The plaintiff had completed Certificate II in Arboriculture and commenced Certificate III. At TAFE he was learning tree climbing techniques, tree species and how to work in tree lopping. His father encouraged him to obtain his education in Arboriculture as he himself had never done. He wanted his son to learn the safe and professional techniques. But most of all, he wanted his son to obtain Certificate V, with which qualification the plaintiff would be able to tender for government work such as with local municipal councils and with Energy Australia.
The plaintiff expected to complete his Certificate III in about 1 ½ years and to complete TAFE in about 3 years. This means that the plaintiff would have been fully certified, this year, 2019. On completion of Certificate III he would have been certified to climb and lop all sizes and types of trees. With his Certificate II, at the time of injury he was already climbing and lopping trees up to 30 cm trunk width.
The plaintiff did not at the date of his injury have a view on when he would go out contracting on his own. His goal was to earn as much money as possible performing the climbing duties in his father's tree lopping business whilst improving his skills from that experience; until the opportunity arrived for him to make more money through operating his own business. The unchallenged evidence is that his father intended to give his tree lopping business to the plaintiff. The following transcript is typical of the evidence which the plaintiff gave in that regard (T page 16 line 13 to line 24):
Q. Did you have any view as to when you would have gone out on your own once you started climbing trees?
A. No. Look, the goal was to - to make as much money as possible. As anyone young person like myself wanted to do was, I went after the job. Like ,I knew it paid - it paid a lot of money, and I knew it was dangerous, but we had TAFE, for that to teach us the safety. And we - we did our best to do everything we can. I wanted to - if I found out, like, if I wanted to do climbing and when I found out that the business would have been better at that time, then I wanted to go straight into that. It was any opportunity I would have had to open up a business or small business, I would have taken it because you make more money than your workers.
[See also T page 9 line 45 to page 10 line 04]
The evidence of his father was that he fell back on performing the tree lopping work himself as and when required in his business.
The evidence painted the picture of the plaintiff pursuing what he saw to be the high earnings of a climber in the tree lopping business and then the higher earnings of running his own business in that industry. The ability to perform climbing in his own business would avail to the business the opportunity of smaller jobs and sometimes cost savings where paying another person to perform the climbing activity might not be economically preferable.
His career path started with ground work for his father, commencing in about July 2015, three months before his injury. As already observed, he had progressed to climbing small trees.
At the time of his injury the plaintiff said that he worked 38 hours over a five day week. He attended TAFE three nights per week and attended one full day of practice climbing per week in his TAFE course. This required him to sometimes work on Saturdays: transcript pages 42 and 43. Sometimes on weekends he would accompany his father when he was quoting jobs, in order to get that business experience.
Whilst performing ground duties the plaintiff cut up the timber, which had fallen, into manageable size pieces and then placed the pieces in the mulching machine. He volunteered that he could cut the timber to workable sizes and thereby avoid very heavy lifting. He already retained the skill set required including use of chainsaws, mulching machines and stump grinding machines.
The difficulty of the work and the inherent danger of it necessarily meant that the ground worker was paid more for a higher skill set than for instance a novice labourer. Ground workers learned to manage the ropes for the climbers above. There was significant responsibility attached to that role because of the danger for the climber and for the ground workers. Ropes were used to lower the branches which the climbers had lopped. Ropes were used for securing the climbers against the risk of falling. The plaintiff said that a ground worker must be careful of his rope work in order not to cause injury to the climber.
Earnings of ground workers and of climbers in the tree lopping business varied according to their skill and experience. There is no dispute that climbing in the tree lopping business was a high risk occupational activity. Obviously a fall could result in serious injury or death. There is no dispute that ground work carried with it significant risk of injury. Indeed, the circumstances of this case serve as an example. Plainly ground workers are working below climbers and below dead branches, and below suspended timber.
[2]
THE EVIDENCE IN MORE DETAIL
On 26 November 2015 the plaintiff was working for his father at a site supervised by his father in his father's tree lopping business. He was working on the ground chopping up lopped branches whilst above him Mr Ronald Sando, who was what is referred to in the evidence as "a climber", moved in the tree. Unfortunately a dead branch upon which Mr Sando stood detached from the tree and fell. In response to Mr Sando's call of warning, the plaintiff looked up and the branch hit him in the face. The plaintiff was wearing his safety helmet but his face visor was open because he was not working with a chainsaw or with mulching machinery. He suffered very significant injuries which to a lay person might be fairly described as fractures to much of his face requiring it to be surgically reconstructed. The plaintiff received treatment by ambulance, conveyance to Westmead Hospital by helicopter, and two week admission to that hospital.
Drs Jennifer Chapman and Rebecca Martens, Staff Specialists, rehabilitation medicine, Westmead Hospital, wrote to the plaintiffs regular GP Dr Habiboglu on 4 May 2016 a letter which efficiently described the extent of signs and symptoms of early recognition of head and brain trauma suffered. Dr Chapman reported (Exhibit 1):
admission 26 November to 12 December 2015;
early loss of consciousness followed by Glasgow Coma Score 15/15 in Accident and Emergency;
facial fractures including bilateral orbits, maxilla, nasal and ethmoidal bones and cribriform plate fractures;
no intracranial haemorrhage noted;
amnesia cleared whilst in Accident and Emergency indicating a mild traumatic brain injury;
plaintiff reported problems with memory and testing for post traumatic amnesia scores were "not full" during treatment including involvement of opioid analgesics and anaesthetics administered for management of facial fractures;
Brain Injury Clinic reviews found ongoing post-traumatic stress and persistent post concussive symptoms related to his stress and his facial pain.
From their review, six months post injury, Drs Chapman and Martens described the plaintiff's condition as "basically unchanged". He was seeing a psychologist, suffering headaches which were treated with Panadol, his sleep was assisted by Endep 50 mg at night, he was attending the Ophthalmology Clinic for his improving diplopia. Drs Chapman and Martens advised the plaintiff to seek the assistance of a clinical psychologist in substitution for his psychologist and to patch one of his eyes if he had a headache and his diplopia was bothersome. The plaintiff was encouraged to close his eyes when suffering headaches. Drs Chapman and Martens informed the plaintiff that he had made a full recovery from "mild traumatic brain injury". They recorded "he has ongoing issues with post-traumatic stress disorder and persistent post concussive symptoms for which clinical psychology needs to be involved".
Subsequently symptoms including bilateral blocked tear ducts resulting in a yellow sticky weeping, and restricted breathing due to deformity of his nasal passages, earned the recommendation of further facial surgery which the plaintiff has refused because he does not feel that he could tolerate it having experienced the extreme pain of his facial reconstructive surgery and because the treating surgeons' were unable to promise improved result. Given that the plaintiff suffers post-traumatic stress disorder, major depression and significant anxiety associated with any triggers which he thinks might cause further injury or damage to his face; in my opinion his refusal of that surgical treatment is reasonable: Fazlic v Milingimbi Community (1982) 150 CLR 345; [1982] HCA 3; Amoud v Al Batat [2009] NSWCA 333.
On 22 May 2017, one and a half years post-injury, Rehabilitation Services provided the defendant's insurer with a Rehabilitation Closure Report in which the plaintiff's work capacity was assessed in categories including carrying, sitting, standing, pushing, pulling, bending, twisting, squatting, driving and "other". The Report concluded that he was assessed at "nil capacity".
The plaintiff has not received the benefit of any expert rehabilitation investigating of his employment opportunities since 22 May 2017.
The plaintiff has lost his sense of smell and consequently his sense of taste is so diminished that he can determine only sweet from sour and saltiness. The plaintiff has not driven since the accident and is presently unlicensed. I accept the plaintiff's decision not to drive as reasonable. He has ongoing fear of injury caused by a motor vehicle accident. He is concerned for the effects of headaches, dizziness and pain which would diminish his concentration and focus whilst driving. His medications such as Endone (which he might have to take in the event of a severe headache or facial pain) contraindicate driving. I further consider it is ill-advised for the plaintiff to drive whilst he continues to suffer failings of temperament consequent of his chronic post-traumatic stress disorder, chronic major depression and somatic symptom disorder with predominant pain.
The plaintiff originally suffered severe diplopia which he acknowledged has improved to diplopia at close vision within about 35cm (as displayed in witness box). Vision in his left eye remains diminished to 6/18 distance and in both eyes at J 4/6 near vision.
On 13 November 2017 agreement reached between the plaintiff and the defendant insurer, recorded "Complying Agreement For Permanent Impairment assessed Whole Person Impairment" at 33%.
Following a course of eight months of treatment by way of psychiatric assessment and intervention and at about three years post injury, Dr Ann Stephenson, psychiatrist reported on 22 October 2018 that the plaintiff had shown significant improvement since his accident but that he suffered daily headaches along with "constant anxiety". His headaches were pulsating and occurred every day. They were exacerbated by noise and light and were accompanied by aching of his face and at different points across his forehead. The plaintiff reported that he spent his time "mostly lying down in bed", lacking motivation, fatigued, and experiencing pain in his face and back. His sleep was impaired including initial insomnia, frequent waking with pain and anxiety and inability to return to sleep. He suffered two types of nightmare. In one "he sees himself back on the job site, looking down on himself from above, seeing the bleeding and feeling it at the same time", and in the other "he sees himself near the top of a tree, cutting the trunk or branches above, then it shakes and he falls". Nightmares caused him to wake in a panic. Three years post injury nightmares were occurring a few times weekly. During panic episodes the plaintiff was aware of his pounding heart and experienced either difficulty breathing or hyperventilation. The plaintiff remained hypervigilant because of his ongoing fear of injury. He suffered outbursts of anger triggered by minor provocation, often several times daily. The plaintiff continued to suffer dizziness initiated by changes of posture and hot weather. Dr Stephenson recorded that the plaintiff's concentration and memory, whilst recovered since following the accident, remained impaired, particularly in association with pain.
Dr Stephenson commented that the plaintiff will experience self-consciousness due to readily apparent facial and head scarring. The plaintiff feels hopeless because of his thinking a lot about his problems and future prospects. The plaintiff's scarring traversing his head from side to side was obvious in court.
Dr Stephenson concluded as follows:
no significant cognitive deficit was apparent;
no psychotic development or suicidal ideation was elicited;
the plaintiff suffers Chronic Post Traumatic Stress Disorder, Chronic Major Depression, and Somatic Symptom Disorder with Predominant Pain; and
comorbidity of pain and depression is linked to greater severity of depression, longer duration, greater functional impairment and poorer clinical outcome.
Dr Stephenson prognosised that psychiatric symptomatology may be associated with any future traumatic experience, further surgical interventions and ongoing adjustments to disability. In her opinion, given three years post injury, the plaintiff had been unfit for employment since the date of his injury due to his psychiatric symptomatology and remained unfit to "engage in his former occupation of tree lopping work involving risk of physical injury, while impaired concentration and anger outbursts further limit options for all eternity of occupational employment." In her opinion, on assessment three years after the accident, "it is improbable that further significant improvement will take place."
The plaintiff's evidence of his experience during admission to Westmead Hospital and recuperation thereafter was consistent with the above summarised medical history. He said that he suffers his facial pain every day and on a scale where 0 is no pain and 10 is the worst pain imaginable, he rated his symptoms at between 3 to 8 or 9. When his pain is bad he takes Endone which lowers it back to a 3 however Endone leaves him drowsy. He is aware that instructions on the Endone packet are that he should not drive a motor vehicle. There is no dispute in the proceedings that consumption of Endone contraindicates the operation of machinery.
The plaintiff said that it would be too dangerous to operate chainsaws and the tools in the tree lopping business if he had taken Endone. I accept that as a responsible point of view. He said that he takes lots of medicines including for nausea resulting from his dizziness and to assist him to sleep.
He said that he suffers dizziness on hot days, when performing strenuous activity and sometimes when he rises from a sitting position. The relatively minor exertion of household activities, such as taking out the garbage, can bring on facial pain or headaches.
The plaintiff said that his nightmares continue a few times per week. His initial insomnia continues and when he finally falls asleep the nightmares wake him up and then he is tired the next day.
He said that the pulsating headaches he experiences every day are focused above the left eye where he suffered the impact of the injury. Bad headaches cause him to lie down and take Endone until the headache passes.
He said that emotionally he experiences lots of ups and downs and that his life is very different to his preinjury state when he was very outgoing with friends and active. He said that he has some good days but also can be very depressed.
He has lost the pleasure of food because of his loss of the sense of smell.
He is anxious to avoid anything which could injure his face because he never wants to go back to hospital. He said that he does not feel safe wherever he goes. His mother drives him, including to medical appointments. He is concerned that if he has a bout of dizziness he might fall over and injure himself. He said that he does not go anywhere outside by himself, not even to the shops.
[3]
EVIDENCE OF AVAILABLE EARNINGS
Because the plaintiff had only worked for his father for a little over three months prior to his injury, his income tax records cannot be an accurate account of what he would have earned on an annual basis in his employment either as a groundsmen or as a climber.
Following the plaintiff's father having been present in court to hear the whole of the plaintiff's evidence, he was called as a witness in the plaintiff's case. He had been present during the plaintiff's evidence because he was the named defendant in the proceedings. His evidence is to be treated with caution. This is because there was an obvious inconsistency between, on the one hand, his ability to recall the activities of his work and of his son working in his tree lopping business; but, on the other hand, a total inability to recall what he earned as the operator of his business. He had ceased to operate his business only about two years before the trial. His detailed recollection of activities in his tree lopping work and the operation of his business, including, the numbers of employees between 1998-2017 and the days of the week on which he worked and the activities of the work can be seen at T pages 71-73.
The plaintiff's father's evidence concerning the records of his business and of his inability to recall what he earned included the following:
Q. So all of your records, your business records, I take it would be with you in Bass Hill, or they with someone here in Sydney?
A. No, no, there's no record for my business, no. Because I - I stopped it. It's not in my name.
Q. Yes. Had you kept any of your old records for your business?
A. No, because I travelled, actually, overseas. Initially, when I stop - I sold my business, I went to the Gulf. I went to Dubai and Oman, and I was doing some business with my cousin there. So that's why. I was planning to stay there, actually. I stayed there for about a year. Then, it didn't work out and I just came back.
Q. Okay. So when you gave the business away, what did you do with the business' records?
A. I don't know, because we moved - I moved few times. I shipped my - my stuff to Oman, then back to here. Then, I went to Melbourne and I came back from Melbourne to Sydney. So I moved a lot, so I don't know how.
Q. And you just don't remember‑‑
A. No.
Q. ‑‑how much money you made from the business.
A. No.
In the result, there was no evidence of what a tree lopping business proprietor earned.
Neither party relied on expert opinion evidence of average earnings of ground workers or of climbers in the economy of NSW, such as might be available in another case from a forensic chartered accountant or a professional vocational placement expert. The claimant tendered job advertisements including an email from someone known to the plaintiff who operated a business known as "Statewide Tree Services" which suggested that qualified grounds persons are paid $150-$300 per day and climbers are paid $400-$1,000 a day. The plaintiff tendered an advertisement offering a "Full-time" position in Queensland for a climber paying a "salary" of $100,000 to $150,000 per annum, requiring only one year experience of tree climbing. There was no evidence otherwise of the terms of that engagement. The plaintiff tendered a tax invoice from Accomplished Tree Management to Quick Chip dated 5 May 2019 describing a day rate for contract climbing of $660 and a tax invoice from Statewide Tree Services to Jungle Jim The Tree Fella Pty Ltd dated 18 April 2019 billing "full day climbing services" at $550 exclusive of GST. No evidence of overheads of these businesses were tendered. A variety of other such piecemeal evidence of generally contract based dealings was included in the plaintiff tender which indeed included a tax invoice from Statewide Tree Services to Jungle Jim The Tree Fella Pty Ltd dated 23 March 2019 for "ground service" at $300 exclusive of GST.
The defendant relied upon the following documentary evidence (contained in Exhibit 1) relevant to assessment of the plaintiff's earning capacity:
1. A written statement by the plaintiff's father dated 20 January 2016 which at [10] to [11] stated that the plaintiff was paid $20.78 as a full time worker, 38 hours per week, which totalled $763 per week gross and after tax, $663.00;
2. A Seek Australia internet website enquiry result showing advertised positions for a broad range of arborist jobs which included some climbing work for which between $25-$34.99 per hour plus superannuation, was offered;
3. A Seek Australia internet website enquiry result of an advertised position for an arborist/climber paying $60,000.00 - $69,999.00 p.a. for full time employment; and
4. Two Seek Australia website enquiries finding advertisements for temporary, contract work involving arboriculture and proficiency in climbing on a rate of pay of up to $35.00 per hour.
The oral evidence of the plaintiff was that average groundsman earned between $200-$350 per day and climbers anywhere from $400-$1,000 per day before tax: T page 13 line 30 to line 35. The plaintiff's father gave evidence that the most he had paid a climber was between $800-$900 per day (T page 75 line 30), the minimum he had paid was $500 per day (T page 75 line 49), the average he paid to a climber was $650 per day in 2017 (T page 73 line 09 to line 22) and that most often he paid $650 per day (T page 76 line 15). The rates given by the plaintiff's father were contractors' rates, not employee earnings: T page 78 line 05.
[4]
ASSESSMENT OF DEPRIVATION OR IMPAIRMENT OF EARNING CAPACITY
In the opinion of Dr Porteous, the plaintiff's present and future incapacity for employment is:
"At this point taking all of his conditions into account, it is my opinion that he has been, and is, incapacitated from work he has training, experience and qualifications in and, in fact, is incapacitated from all work.
In reality, Mr Bsisou will have significant difficulty securing any "non-sheltered" work as a result of the injuries from his accident, because of his substantially reduced capacity and restrictions, and this will likely be the case long-term."
The most recent WorkCover certificate of capacity is that completed by the plaintiff's regular GP on 2 May 2019. The plaintiff was then assessed as having "no current work capacity for any employment" from 2 May 2019 to 2 June 2019. The doctor assessed the plaintiff's capacity for activities of daily living currently being performed as:
lifting/carrying capacity 5 kg;
sitting tolerance normal;
standing tolerance normal;
pushing/pulling ability nil;
bending/twisting/squatting ability nil; and
driving ability nil.
In court the plaintiff was observed to not display any symptoms of discomfort during his oral evidence which extended over some hours. He walked to and from the witness box without any display of difficulty. In the giving of his evidence he did not display difficulty of understanding or of expression. He did not display any disability of concentration or of focus. Naturally, these being my observations, they are those of a layperson. It was not available to me to see whether the plaintiff was experiencing distraction, headache, pain or anger. In court the plaintiff was courteous and well presented. The evidence showed him to be a young Australian adult male of excellent family relations.
He was willing to make frank concessions against interest such as conceding significant improvement of diplopia. His oral evidence conceded that he can sit and concentrate during a movie for 1 ½ hours but does so with developing pain. When asked about his driving he appeared to make a concentrated effort to recall if his driver's licence was suspended at the time of injury but he was unable to do so. I was concerned that a young man who since the date of his injury had been transported by his mother, even in circumstances of his driver's licence having been suspended for nine months not long before the date of his injury; could not recall whether or not he was licensed to drive at the time of that significant event. Again, this is a layperson observation. I spoke of it to counsel for the parties.
In this judgement I rely on the expert medical opinion and make no assessment of the plaintiff's capacity for memory from that in court observation.
On day one of the hearing, counsel for the defendant conceded that from the date of his injury and to the present the plaintiff has remained unfit for work. There was no evidence put before the court describing work that the plaintiff could do now, 3 ½ years after his accident.
At the commencement of the second day of the hearing counsel frankly stated the defendant's position on the question of residual earning capacity as:
"At this point, the defendant cannot point to any positive evidence of actual earning capacity. What the defendant can point to is an absence of an opinion, with one contentious issue that I will deal with in a moment, your Honour, that the various medical experts who have commented on the plaintiff do not preclude his earning capacity at some point in the future, if not even at this point. There is positive evidence before you in the oral evidence that the plaintiff gave yesterday in relation to his intentions as to what he wished to do in his career and the impression that is able to be gained by the Court regarding the likelihood that those intentions would inevitably be acted on by virtue of his obvious intelligence and articulation."
It was agreed that the plaintiff did not present himself as having accepted that there will be no work that he can do; nor was he saying that he did not want to do whatever work he was able to perform. In oral evidence and by his counsel, the plaintiff presented with an understanding of his capacity for work and incapacity for work in the nature of: "But I can't tell when I'm going to get a headache, I can't tell when I'm going to be in pain" and his mother described him as a person of very changeable mood with bouts of overt anger: transcript: page 86, lines 30-35. The plaintiff said that his attempts to engage with physical activity, as he was advised to do by those treating him in his rehabilitation such as Dr Stephenson, resulted in him experiencing very painful headaches, in relation to which the brain clinic advised he reduce activity. Whilst he, with the assistance of his mother, has restricted his use of Endone, in accordance with medical advice; his episodic extreme pain requires him to continue using it. The plaintiff cannot forecast when he will feel dizzy or nauseous.
Near the end of the first day of the hearing I put to the parties that whilst the plaintiff was able to give evidence for some hours in the witness box, that is not an employable activity and by this I illustrated that the plaintiffs impaired working capacity results from the combination of his disabilities. To choose an example, he might not be able to work as a service station cash register attendant because his mood swings and anger make him unsuitable for dealing with the likely range of customers, particularly if he was experiencing dizziness, nausea or pain. He would be unable to stock the shelves which is usually a requirement of employment of that type and his pain, headaches, dizziness and nausea would likely cause him to be unable to reliably attend and to complete shifts of work.
The starting point for assessment of damages for loss of future earning capacity is the observed fact that expert medical practitioners; have, without exception, been unable to identify an occupational path for him and indeed from 22 May 2017 the workplace insurer's rehabilitation team ceased in that endeavour with an assessment that he was unfit for work. Counsel for the defendant agreed that the expert evidence amounted to that observation: transcript, page 87 lines 14-34.
The plaintiff did not present evidence of what he would have earned had he pursued his identified career path of becoming a tree lopping business proprietor. Counsel for the plaintiff conceded this point: T page 87 line 45 to line 50. Whilst the plaintiff proposition was that he would have followed his father's footsteps in that career path; that business activity carries an inherently high risk of injury or even death and of work interruption including between contracts, and by weather conditions, such as rain or wind. It should have been the subject of evidence of earnings achieved over time. It was not. Nor was there evidence of comparable earnings of climbers over time. There was no evidence that the plaintiff would have earned more as a climber than other climbers from when he achieved his Certificate V. Whereas the plaintiff's father referred to earning more as a businessman, there was no evidence of how much more a tree lopping business proprietor earned than a climber earned.
The plaintiff submits that the evidence of his father infers that once he chose to limit or cease the climbing activity and substitute for it the business operator activity, the plaintiff would earn not less than the income of a climber. The plaintiff also submits that the opportunity of business income, on that basis, inferred a future of possible business earnings above those of a climber and continuing after he chose to retire from his climbing duites.
I have already addressed the difficulty with assessing the value of this submission; that there was no evidence of business earnings. The evidence of the father is not precisely that he always earned more by being the business proprietor. Worldly experience would suggest that falling back on the climbing activity permitted him an economy in some jobs in which, had he not performed climbing activity, they would not have been economical. The father's evidence, even in the absence of evidence of what he earned, was not evidence that the business activity operated without the facility of his climbing. It was not evidence that the operator of a tree lopping business, who due to injury or age no longer climbed, would continue to earn income equal to or better than that of a climber.
The parties agreed at the commencement of day two that the evidence supported finding an age limit for climbing work at between about mid 40s and early 50s. The plaintiff's father climbed 2 weeks before the hearing, he is 45 years of age. The plaintiff's evidence was that workers performed the climbing duties to 50 (transcript 33, 10) and his father's evidence was that the oldest was "50 something" (T page 72 line 39). Obviously in the exercise of calculation of damages on account of loss of future earning capacity an age of about 50 years is appropriate as the reasonable age limit before retirement from the performance of the highly paid but highly dangerous and strenuous performance of climbing duties in the business of tree lopping. There was no evidence of the rate of attrition from climbing resulting from workers in that calling suffering from injury or from other causes such deciding that they were no longer fit enough or no longer willing to accept the continuing risk of serious injury or death.
Prior to his injury, the plaintiff was a young adult male with the considerable physical capacity to work as a ground person in his father's tree lopping business and to perform climbing whilst employing safety techniques taught to him at TAFE. He was of sufficient literacy, concentration and cognitive capacity to have achieved his higher school certificate and to have successfully completed part of his arboriculture course at TAFE. He assessed his academic ability as fit for university study, had he chosen. The plaintiff suffers no assessed significant cognitive loss. His pleasant presentation and ability to communicate, which were observable as he gave evidence, indicate a residual work capacity.
The defendant proposed the plaintiff's residual capacity for work as "something like office work or indeed, work from home, which is increasingly a possibility, online work" (T page 122 line 35). In my opinion, the office environment would be a problematic match for the plaintiff's impairments. His moods and anger can be even triggered by noise. His concentration is limited to between 1 and 2 hours with the assistance of medication and not across consecutive days of the week. His combination of impairments has to be taken into account. Any suitable work environment external to his home would need to be a sheltered and protective one operated by an understanding employer. Realistically, the opportunity to obtain and maintain such work should be assessed as extremely hard to achieve.
On the evidence, the plaintiff's residual earning capacity is above 6 hours per week whilst performing non-physically strenuous tasks most likely from home and with flexibility of hours worked per day and across the week such that he might achieve a total of six hours or more per week of duties such as those employing computer or telephone. Allowing for exacerbations of his conditions, including but not restricted to bouts of debilitating anxiety and depression, and taking into account periods of unemployment consequent of the difficulty which he is likely to experience in obtaining and keeping work with an understanding employer in a very sheltered work environment such as within his home, his capacity should not be assessed at more than 35 weeks per annum. Given his presentation in the witness box which displayed a person of well-presented communication and courtesy skills in the controlled environment of the court room, it is reasonable to attribute average hourly rates of earning as achievable from his residual earning capacity within those limits.
Given the plaintiff's ongoing treatment with Dr Stephenson, in my opinion it is reasonable to permit him another 12 months of recuperation and rehabilitation before regaining some form of employment. His evidence freely expresses his frustration with his not been able to do things and his realisation that achieving tasks might make him feel somewhat better. A period of 12 months would give him the opportunity to identify and achieve some form of employment in the course of his continuing to attempt more activity as Dr Stephenson has advised.
[5]
Consideration and Assessment
I accept the plaintiff's evidence that he would have acquired his Certificate V from TAFE at least by the date of the hearing. I accept the plaintiff's evidence that from mid-2017 he would, on the obtaining of his Certificate III, have undertaken progressively more advanced climbing duties in his father's business. From that date it was available to him to earn an increasing income as a climber in the tree lopping business according to his increasing skill. His father would have handed the business over to him when they chose. The plaintiff was clear in his ambition to achieve the operation of his own business as early as he could. Doing the best I can on the plaintiff's evidence, that date would likely have been in his very early 20s. There is no evidence of what the earnings of a tree lopping business proprietor were, are, or in the future will be. The defendant, the plaintiff's father, claimed to be unable to give any evidence of what he earned from his business. On that evidence, it is of little assistance toward assessing financial gain, that the plaintiff's father also gave evidence that with a Certificate V permitting the plaintiff to tender for government work, he might have earned more than his father had done.
A climber, assuming they were not injured in the course of that very dangerous occupation, and remained fit and willing, could perform those duties to about age 50.
The plaintiff submits that from age 50, but for his injury, the plaintiff would have retained capacity to market his business and contract tree lopping work even after losing the capacity to fall back on climbing duties. There is no evidence of the viability of such a business in which the proprietor cannot climb when required. In the latter period of his business, the plaintiff's father had climbed when he needed to but there was no evidence of how frequently or to what extent his business needed him to climb.
In the alternative, the plaintiff says that had he retired from active climbing duties at age 50, it is reasonable to project that given he is a person capable of qualification from TAFE and experienced in the performance of trades work; his capacity would be to earn average weekly wages.
Finally, the plaintiff submitted that when he was no longer fit for climbing duties at age 50, he would have remained fit and would have had the skills to work as a groundsman.
In relation to all of these propositions, in my opinion, it is appropriate to take into account that climbing duties in particular and tree lopping work in general is highly strenuous, dangerous work accompanied by a risk of very serious injury. The dangerous nature of the work is conceded by the plaintiff and the reason for his want to train in the professional techniques as taught at TAFE which include safe work skills and safe equipment education. This approach was indeed encouraged by his father who was experienced in the work. Nevertheless, in the environment of father and son being so aware of the need for safety and when the plaintiff was wearing personal protection equipment including a helmet with face visor (open at the time because he was not using machinery), the injury happened and whilst he was engaged in the relatively safer work of a groundsman duties.
The uncontested proposition on the evidence was of the plaintiff would work to age 67 years.
The deprivation or impairment of earning capacity for which the plaintiff is entitled to be compensated is that which "is or may be productive of financial loss": Graham v Baker (1961) 106 CLR 340 347; [1961] HCA 48.The plaintiff must prove the loss for which he claims compensation: Todorovic v Waller (1981) 150 CLR402 at 412; [1981] HCA 72. Conversely, it is not the plaintiff's burden to prove what employment he is not incapacitated for performing. It is for a defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Rabay v Bristow [2005] NSWCA 199, per McColl JA at [73].
Availability of employment for which the plaintiff will in the future remain fit according to his residual earning capacity and the opportunity for remuneration from that employment, are relevant to the extent of the existence and the extent of any loss of earning capacity: Medlin v State Government Insurance Commission (1995) 182 CLR 1 per the plurality at 12; [1995] HCA 5. The question for assessment is: given that as a result of the accident the plaintiff has been rendered less capable of earning income, after looking at the plaintiff's capacity for work beyond the particular employment in which he was engaged at the time of the accident; what is the reasonable value of compensation for financial loss which his deprivation or impairment of earning capacity is or may be productive. In this, earning capacity is an intangible asset that has a value only to the extent that it is or could be exploited financially: Medlin Supra per McHugh JA at 19.
The defendant did not in closing submissions submit that between the date of his injury and the date of trial the plaintiff failed to mitigate his loss by achieving remunerative work. To the contrary, as is recorded in these reasons, the defendant conceded that the evidence did not permit identification of remunerative work which he could have done in that period. Clearly therefore the plaintiff is entitled to damages compensating him for deprivation and impairment of earning capacity to total incapacity for work productive of remuneration for the whole of that period.
In Closing Written Submissions, counsel for the plaintiff put that he "was never going to work as a wage earner for somebody else. He would work for himself as a tree climber contracting, probably to his father's business, before taking that business over." Because the plaintiff case was opened on the fact of his being an employee of his father at the time of his injury (transcript page 2. 11), I understand this submission to mean that the plaintiff would pursue work as a contracted climber once he completed his Arboriculture certifications at TAFE and, with experience, have found the opportunity to step outside of employment with his father and work as a contracted climber as well as pursue operation of his own business in tree lopping. On the whole of the evidence, the plaintiff would probably have remained in his father's employment whilst he developed his skills and learned the operation of the business. I have determined that the plaintiff would most likely have commenced in that pursuit of independent remunerative engagement in his early 20s. Compensation for past economic loss is therefore to be assessed on a wages basis.
No payslips of earnings were tendered by the plaintiff. His 2016 Tax Return recorded payments from two employers in a total sum of $37,387. Of that total, $28,231 was from one payer. After deductions for the cost of managing tax affairs and for protective clothing, his taxable income was $35,091. There is no evidence identifying the component or proportion of that taxable income which was earned in the employment of his father. He did not work after his injury on 26 November 2015. The defendant Closing Written Submission at [2] helpfully informs that net income on a gross wage of $800.00 per week was in the 2016 financial year, $693.16. The plaintiff could not recall precisely what he was paid per week but thought it was around $800.00 and approximately $700 in the hand: T page 16 line 38 to line 46. The plaintiff's recollection therefore, in round terms, equates to the defendant's calculation of the tax payable and to that extent is corroborated. I accept $693.16 to be the plaintiff's net income at the time of injury.
The defendant Closing Written Submissions at [8] allow a 3% per annum increase of net wages, which calculation rounded to $700.00 net per week between the date of injury and the trial. For the reasons which follow, in my view the defendant's submission is too conservative.
I accept that the plaintiff's enthusiasm, commitment and ambition to his chosen career course would have seen him continue successfully through his TAFE certifications and to progressively increase his climbing to all sizes and species of trees as well as increase his responsibilities in and about his father's business. By the completion of his Certificate III in about mid-2017, his training would have qualified him for unrestricted climbing and as his skills developed through experience he would have engaged that. By the time of this hearing, he would have achieved his Certificate V. Given the cost to his father of contracting experienced ground workers and more precisely the cost of contracting experienced climbers, I prefer the plaintiff's Closing Written Submission at [7]. Appropriate allowance for past economic loss should be calculated on the base is of $800 per week net averaged over the period. I note that according to the Furzer Crestani Handbook (1 October 2018) this would indicate average earnings of a little less than $1,000.00 gross per week.
The next task of the court is to estimate the plaintiff's future economic loss consequent of the deprivation and impairment of his earning capacity. The first enquiry is to assess the plaintiff's likely remunerative future earning capacity but for the injury.
Not unusually for such a young plaintiff this must be done on the basis of evaluating the range of possibilities. The first and most obvious possibility is that he would have worked as an employed or as a contracted climber in the tree lopping business. I determine this to be the strongest possibility because the plaintiff whilst a high school student and with the opportunity of having observed his father in that industry, chose to pursue that career course. In addition, at the time of his injury, he remained strongly committed to that course with an enthusiasm to achieve the substantial earnings which he knew to be available. In the course of the period of a little over three months during which he worked with his father, that commitment and enthusiasm had not been dampened. This is evidenced by his successful passage through the TAFE course and his performance of climbing of trees of not more than 30 cm diameter, as he was certified to do by his Arboriculture Certificate II.
Albeit the evidence of earnings of climbers is infected with inconsistency and with an absence of evidence of net earnings, identified in these reasons; on the whole of the evidence the significant sum of the $650 per day is a reasonable starting point as normal contractor gross earnings in that work. His chosen career would have permitted him all options for earning as a climber, including employment, work as a contracted climber and as proprietor of a tree lopping business. These would be options between which he would be able to choose that which promised the greatest remuneration from time to time. With his Arboriculture Certification V, which would have been achieved by the date of this judgement, he would be qualified for all work including working with government agencies and municipal authorities. There might be periods during which the promise of significant earnings as an employed climber would, against the risks of interruption by weather and other business risks such as clients who do not pay, promise greater income than he might achieve as a contractor seeking jobs over that period. Alternatively, as a business proprietor, he retained the opportunity of profiting from contracting the work of others. The flexibility of options, logically, would permit him the greatest chance of maintaining a full work diary and continuity of income. Quite obviously this nature of work was high risk. It was a career path which, as conceded by the plaintiff, carried a greater risk of interruption through injury than might another career. Other causes of interruption more likely to interrupt a career in climbing than another career path might include loss of physical fitness, ill health or simply the election to no longer accept the risk of the work.
Indeed, the plaintiff impressed as a young adult male determined to achieve significant earnings and who had already displayed a commitment and capacity to do so. Even whilst at school he had worked part-time. In his future he may have changed career path but on the evidence of his presentation and of his short history as a worker, one is given the strong impression that it would have to be an alternative career of equal or greater remuneration which would attract him away from climbing. His positive attributes of personal presentation, respectful manner and communication displayed in court would have assisted him in his future working life.
The evidence of earnings of climbers working in the tree lopping industry is uncertain to the extent that the figures described in the evidence of the plaintiff and of his father are those of contract workers. There is no evidence of their overheads. Whilst there is some evidence of advertisement for positions, there is no evidence of whether or not the positions were filled, the longevity of the position, or otherwise the terms of the employment such that the worker's actual income can be readily ascertained. That there is not better evidence is not reason for me to refrain from determination by estimate, on the evidence such as it is, compensation for future deprivation and impairment of earning capacity: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Guzman v Zammit [2003] NSWCA 224; White v Redding [2019] NSWCA 152.
In defendant Closing Written Submissions at [12] it is put that gross receipts of a contracted climber paid at the rate indicated by the plaintiff's father fall within the range of $96,000-$240,000 per year before expenses and tax, assuming a five day working week, 48 weeks per year. The defendant calculated this on the basis of the plaintiff's father's evidence that the average he paid was about $650 per day with a minimum of $500 per day for non-experienced climbers. On occasion he paid $900 per day for an experienced climber. At [13] the defendant referred to exigencies of demand and opportunity which negatively affect earnings from contract work. To this, I would add interruptions by weather, ill-health and loss of fitness. At [14] the defendant drew attention to a contractor's expected expenses of equipment, vehicles and of course the obligation to pay income tax; about all of which there is no evidence of payment. At [15] the defendant ultimate submission was that the plaintiff's future economic loss be assessed on the basis of Average Weekly Earnings.
The job advertisements contained in the defendant's Exhibit 1 and obtained from Seek Australia website enquiries, no doubt offered positions in the broad range of Arboriculture/climbing work. As I have said, the whole of the evidence displays a broad range of rates of pay. It is my assessment of the plaintiff's commitment and drive already described, that he would achieve in the higher end of remuneration available to him from exploitation of his opportunities in the tree lopping market. On the whole of the evidence, earnings in the realm of $70,000 per annum before tax, offered in those advertisements, are not toward and are well below the higher end of the available range indicated by the evidence, and about which the plaintiff was most likely to earn. In addition, he would have enjoyed the opportunity of flexibility of earning by contracting and through the operation of his own business.
In the plaintiff Closing Written Submissions at [8] it was properly put that the defendant did not challenge the plaintiff or his father on the evidence they gave concerning earnings of climbers working in the tree lopping business. The advertisement for employment at page 146 of the plaintiff Court Book (Exhibit A) described as "Salary" the range of $100,000-$150,000 for full-time work and that the position required applicants to have only one year of tree climbing experience. The advertisement was apparently placed by Acclaim Tree Care and Services, located at Wacol, Queensland. At [18] of the plaintiff Closing Written Submission that income was helpfully calculated to be $1,923-$2,884 gross per week and $1,413-$1,999 net per week. Being a salaried position, assumedly the worker would be entitled to holiday and sick pay. It is not available from the advertisement to determine whether or not superannuation was in addition. The advertisement does not describe the requirement of Arboriculture qualifications.
By the time of judgement the plaintiff would have achieved approximately three years climbing experience and have completed his Arboriculture qualifications. The Acclaim Tree Care and Services position calculates to an offer of nearly $577.00 per day before tax. On the whole of the evidence, I assess the plaintiff as likely to have earned more than that which this relatively junior employment position offered, had he pursued his chosen career.
Compared to what might be expected of 18-year-old persons seeking their future earnings path, the plaintiff's determined selection of a career path, achievements and commitment to hard work are, in my opinion, to be given weight.
Defendant Closing Written Submission at [15] identified Average Weekly Earnings for Males, Full-Time Adults Ordinary Time Earnings (NSW) for November 2018, according to the Furzer Crestani Handbook at $1,717.00 gross and $1,286.00 net per week. That calculates to $343.00 gross and $257.00 net per day. It is a very real possibility, even after finding as a strong possibility that the plaintiff would have pursued his career as a climber in the tree lopping industry, that because of injury, loss of fitness or choice that he would not, but for injury, have continued on that path to retirement age 50. In my view, his attributes of commitment and ambition to earning and his enthusiasm to identify high income sources; reasonably support a finding that he would until age 50 have earned above Average Weekly Earnings.
In my opinion the evidence supports assessment of the plaintiff's future likely earnings before tax and after expenses across the range of his possible opportunities of employment, including contracting and operation of his own business, should be assessed at $650 per day. My assessment allows for the particular exigencies of his chosen career, had he pursued it to age 50, including that he might not have achieved tree lopping work 48 weeks per annum. It is the plaintiff's enthusiasm and commitment to earn, already shown in his early adulthood and his opportunity to earn up to $1000 per day as a contractor, combined with the flexibility of choosing the most remunerative course between employee, contractor and business proprietor which I have taken into account. The evidence supports, and there appears to be agreement between the parties as to, finding that the usual retirement age for that work is 50 years.
In the result, I accept the plaintiff's Closing Written Submission at [20]. Such earnings calculate to $3,250.00 per week gross and $2,222.00 per week net.
It follows that in my opinion the plaintiff's future earning capacity but for his injury would likely exceed the statutory maximum pursuant to section 34 of the Act. Accordingly, compensation is to be calculated at the statutory maximum amount of $2,145.30 per week up to age 50 years.
Given that the retirement age of 50 years is dictated by the high physical demands of work involving climbing and the risks of injury; I reject the plaintiff's submission, if it be maintained, that the plaintiff would have continued at earnings equal to these available to a climber after age 50 years.
The evidence shows that ground work is also dangerous. Work associated with tree lopping engages physical work in all types of terrain including very difficult terrain in which to manoeuvre. From age 50 the plaintiff would be likely to have pursued manual or trades work in Arboriculture but not the dangerous and highly physically demanding work involved in full-time tree lopping work. In my opinion the appropriate rate of earnings to apply for the plaintiff after his achieving the age of 50 years would be the Average Weekly Earnings for Males, Full Time Adults, Ordinary Time Earnings (NSW) being $1717.30 gross and 1286.30 net per week.
I turn now to the plaintiff's residual earning capacity. Whilst in the present case there is no evidence identifying precisely work activity which the plaintiff would be capable of attracting and performing and which would be productive of financial return; I have found him to be a young adult male of capacities of personal presentation and communication such that he would be able to engage in work employing those personal attributes. On his own evidence, he does not want to be idle. On his evidence and as he is advised by his treating psychiatrist, Dr Stephenson, having something productive to do would make him feel useful and as having purpose. Some form of employment is likely to be not only to his benefit but something which he will embrace and pursue. I do not accept that he will remain totally unemployed. He is unlikely to be able to undergo education and retraining which involves significant study requiring long periods of concentration. His capacity to use a computer and a telephone and to concentrate for 1 ½ to 2 hours in a day but not usually on consecutive days, has led to my assessment that he would be able to perform any remunerative engagement available to him and which he is capable of performing, a six hours or more per week worked during periods of up to 1.5 to 2 hours, when he is capable. I have assessed him as not suitable for work in an office. He requires sheltered employment, the duties of which he can perform will most likely be at home when and to the extent he is fit to do.
He is unlikely to achieve that work until he has had the benefit of another year of treatment during which, with the assistance of medical advisors and his family, he can investigate his opportunities. He is likely to remain unfit for long periods of work. It is likely that he will experience difficulty in attracting work which he can do. It is likely that he will experience significant difficulty maintaining constant work. For those reasons I assess his working 35 weeks per annum as his residual capacity over the remainder of his working life to age 67 years. This assessment allows for 1 year to investigate his opportunities.
He is unlikely to earn at an hourly rate equal to that which he would have earned through his Arboriculture career. He is likely to perform work worthy of the hourly rate applicable for average weekly earnings but, indeed, it is likely that he will have less wages negotiating power that another person because of the limited work opportunities and the sheltered work demand relationship he will require with his work provider. It is possible that in the future he will achieve greater employment and earn greater income than I have assessed; but, it is equally possible that he will earn less.
I assess the plaintiff's deprivation and impairment of earning capacity consequent of his injury at 80%.
In its Closing Written Submission, the plaintiff claims an additional buffer. In oral submissions this was put on the basis of his loss of opportunity of increased earnings through operating his own business. The only evidence of the operation of a tree lopping business is that given by the plaintiff's father. Whilst vague references were given to earning more money than a climber earned, I have noted that there was no evidence of what that difference in earnings was. The plaintiff's father's evidence was that even whilst operating his own business, he was required to climb. In my above assessment of the plaintiffs future earnings but for his injury, I have allowed for the opportunity of operation of his own business. In my opinion it is not reasonable to allow a further buffer on account of loss of that opportunity.
In Closing Written Submissions (defendant at [18]; plaintiff at Schedule of Damages Scenario 2 at [3.7]) the parties agree a discount of 25% on account of exigencies. I agree with that approach, particularly because the dangerous nature of the work of a climber requires some allowance for loss of earnings through injury, loss of fitness, ill health or misadventure.
The parties agree superannuation be calculated at 11.5% of net figures for both past and future loss.
The plaintiff is entitled to compensation on account of Fox v Wood (1981) 148 CLR 438; [1981] HCA 41.
I attach a schedule calculating damages on the following page:
Past Economic Loss $152,000.00
(27/11/2015 - 19/07/2019 = 190 weeks. $800 p/w x 190 weeks)
Post Loss Superannuation $17,480.00
($152,000.00 x 11.5%)
Future Economic Loss
($2,177.40 x 809.6 (5% multiplier) to age 50 $1,762,823.00
$188,418.00
($1,286.30 x 0.243 x 602.8 (5% multiplier) age 51 to 67 = $1,951,241.00
$1,951,241.00 x 80% (20% residual capacity) x 75% (25% for exigencies) $1,170,745.00
Final amount:
Future Loss of Superannuation $134,636.00
($1,170,745.00 x 11.5%) - as agreed
Less Workers Compensation Received to Date $138,821.00
(As agreed by parties)
Fox v Wood $17,320.00
(As agreed by parties)
Total Damages $ 1,353,360.00
[6]
ORDERS:
1. Damages payable by the defendant to the plaintiff are assessed in the sum of $1,353,360.00; and
2. I order the exhibits be returned.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 July 2019
Whilst he is able to enjoy PlayStation playing games called "Battlefield 1" and "Uncharted" and to go to the cinema, he is prone to suffering headaches if he focuses in that way for long periods. He plays PlayStation a few times per week and for 1 to 2 hours maximum. I set out his cross examination evidence on this topic because the defendant relied on it during closing submissions pressing that the plaintiff retains a residual capacity for office work (T page 55 line 01 to line 30):
"Q. Yes.
A. You're limited. Yes I would play PlayStation with the help of meds, with the help of being in bed, lying down, relaxed; it wasn't too hard. It was all right.
Q. That's something that you could do; was well within your safety issues. You could do it from your bed, as you said?
A. For one hour a day, two hours a day, sure. Maybe even less.
Q. Okay; up to two hours a day.
A. It just depends, you know; depends on how I'm feeling, depends on how bad it get my headache. It depends on a lot of factors. But I wouldn't say every day, no. It would be a few times a week.
Q. All right, for one, maybe two hours, tops?
A. Possibly, yes.
Q. So that is something that you can do even within the bounds of your current restrictions?
A. Yeah. With the help of, like I said, medication.
Q. Yes; with some medication on board. I think you were saying earlier that you took Endone a few times a week?
A. Yes.
Q. So that's the main drug you use to help you when you got headaches from playing on PlayStation?
A. That was one of the main ones, yes. We also had - there was another one I used to take half a tablet. I don't remember what it's called. It was a relaxant. It would be listed in my list of medications."
In cross-examination the plaintiff frankly acknowledged his ability to travel since his injury including having travelled to Jordan to visit his mother's family for about 2 to 3 weeks. His time there was spent mainly in the homes of family and visiting cemeteries. He no longer owns a computer, although he does use Facebook, WhatsApp and texts but is not very active on social media. He uses his phone to communicate with friends.
The plaintiff said that he has not closed doors completely to work but that presently he cannot imagine going back to work. On the basis of the objective expert medical evidence and taking into account that the plaintiff has not received expert job placement and has to date been unfit, I consider his following evidence to be an emotionally coloured but reasonable self-assessment incorporating a reasonable perception of the difficulty of achieving regular employment with his impairments (T page 31 line 29 to page 32 line 06):
"Q. What about your memory and concentration? How would that affect your work as a tree lopper?
A. Yeah, you wouldn't be able to concentrate. The - taking Endone and that and other medications, you'd be drowsy.
Q. What about the driving? Would that be an impediment to you, not driving?
A. Yeah, I'm not - I'm - I'm - every certificate I've done since the date of the accident I said no driving, as well the medication that I'm on says on the packet no driving.
Q. You can't go back to tree lopping and presumably couldn't go back to any work involving machinery or things of that nature. Is there any work you think you could back to?
A. Look, I haven't closed the doors completely but it's extremely, extremely hard to be able to find something that I can do that I'll be safe doing and that I'll be able to successfully without being in a lot of pain, without doing this, having a boss that will understand what I go through and will be happy to employ with me with everything I go through, like, right now I can't imagine going back to work.
I will - I can't imagine at all with everything that I go through every day, like, I don't take out completely but at this current point I can't imagine it with everything I go through every day and, you know, some people, like, I can't imagine who would even want to hire me. If I get a headache or a migraine I can't work, I can't stay, I've got to go home, you know, and how am I going to get to work? What am I going to do? What's going to be able - what can I do that would be safe enough to not injure me or - that can account for my dizziness or my headaches or everything that I go through every day."
In cross-examination the plaintiff said that the whole day before the hearing he had been out with his father including going to Office Works to print the photographs for the hearing, to his father's home for dinner and then to the mosque with his father for prayers before his father dropped him at home.
His mother, Ms Jannette Shami, gave evidence which was corroborative of the plaintiff's description of his disabilities. She confirmed, in particular, that he continues to suffer a lot of pain in his face and headaches every day. Consistent with the objective medical literature and Dr Stephenson's report in particular, she reported the plaintiff's anger issues. She said that he will start yelling for no immediately apparent reason and then he "goes into his own shell" (T page 69 line 01 and T page 69 line 19).
In his report dated 4 December 2018. Dr Porteous, Occupational Physician, included reference to the plaintiff's complaints of lumbar pain and restriction. He did not diagnose a significant injury there but considered it to be soft tissue pain revealing no symmetry or muscle spasm. In closing oral submissions the defendant agreed with the proposition put by me from this reading of Dr Porteous's report, that his inclusion of consideration of back pain is a distraction because the plaintiff's other disabilities were assessed in the balance of the medical literature as restricting his capacity for lifting, carrying, pushing and pulling in any event. Dr Porteous recorded, that the plaintiff now wears optical glasses when watching television. Whilst he does go out to the movies with friends he is not socially engaged as he previously was. Dr Porteous recorded, consistently with all of the substantial medical literature contained in exhibits A and 1, the plaintiff's complaints of difficulties with his memory. Treating medical practitioners have recorded the plaintiff's mother's observation of his difficulty with memory. The report of Drs Chapman and Martens dated 4 May 2016 (contained in Exhibit 1 and referred to above) recorded the plaintiff's complaints of memory loss during his admission at Westmead Hospital.
Whilst rehabilitation specialist Drs Chapman and Martens (report 3 May 2016) reported full recovery from mild traumatic brain injury and Dr Stephenson reported her finding of no apparent significant cognitive deficit (report 22 October 2018), there is no expert medical assessment totally dismissing cognitive deficit consequent of the injury.
The defendant conceded that this is a case in which the defendant insurer received advice from its rehabilitation service provider that there should be a neuropsychological assessment in the interests of the plaintiff's rehabilitation, but that assessment was never offered: T page 115 line 46 to page 116 line 06. Quite properly, counsel for the defendant conceded the potential for cognitive issues to arise in a psychiatric context as opposed to an organic brain injury context: T page 116 line 20.
The additional psychiatric and psychological affectations of function including chronic major depression and post-traumatic stress disorder, hyper vigilance, and what Dr Stephenson described as constant anxiety are obviously conditions impairing earning capacity.
I accept the plaintiff suffers some degree of difficulty with memory because it has been consistently reported and because it is consistent with his psychological and psychiatric assessment evidence.
In cross-examination the plaintiff said that his treating psychiatrist Dr Stephenson was trying to get him to do more activities and that he feels better on leaving appointments with her then when he walked in. He agreed that his more recent medication controls his symptoms of mood better than before. He said that prior to the new medication his average mood would have been about 7/10, 10 being the worst and 3/10 being his best mood. With the new medication his average mood has improved to 6/10. He also conceded that he might feel better if he had something to do and that he had tried to do things. He had spoken with his GP about his weight gain, at one stage reaching 120kg. From that consultation he sought to do light workouts and light activities but the Brain Injury Unit said that he could not. He said that he has tried doing more as advised by Dr Stephenson to do, but he ends up in too much pain and it is not enjoyable. In court the plaintiff did not appear obese and present obesity was not pressed.
In cross-examination the plaintiff gave the further answers which in the context of his Post Traumatic Stress Disorder, Major Depression, anxiety and fear of pain I accept as his not unreasonable assessment of his limitations (T p 63 line 22 to p 65 line 08) :
"Q. Even if you know that it's good for you to try?
A. The problem is it's an up and down thing. Like, I've got a - I've got a lot on my mind. You know, obviously, I'm trying to get better, but as well, I don't want to put myself in - in more pain than I already go through. Like, the pain is - is not enjoyable at all. And when you go through it every day, every single day, you don't want to add more on your plate to what you already have, you want to reduce what you have. So I'm trying to limit the limitations I have that's going to cause me pain and stress and anxiety. And, you know, that's why.
Q. So you're at home all day.
A. Yes.
Q. Unless you're being taken out by someone.
A. That's correct.
Q. Do you help out your mother around the house?
A. Yeah, I do. The rehab told me "You need to set a task and stick to it every week". So they've assigned - I think they told me to do the rubbish of the house. So I take the rubbish bin and I put them out with my brothers, they help me do it as well, that.
Q. But you can do that.
A. Yeah.
Q. And is there anything else you do to help out at home?
A. The odd time, like, very rarely, I might try vacuuming or - I think I've done my laundry once or twice, stuff like that, some small stuff to help out.
Q. But it's not like you can't do anything, is it?
A. No, it's not. But it causes me a lot of pain.
Q. I appreciate that. But little things, you have tried and you can do.
A. Well, if my mum asks me for help and I can do it, I'll help her, yes.
Q. Has your mum asked you for help on occasion?
A. Sometimes, she does.
Q. And what has she asked you to help you with?
A. Well usually, she tells me to take the rubbish out, because she tells me 10 times before I actually do it. But that's, like, the main thing that she keeps telling me that you've go to do.
Q. Yes. But that's a set task.
A. Yes.
Q. So is there other things that she's asked you to help out with?
A. Doing my bed.
Q. Doing your bed.
A. Mm.
Q. Making it, changing it?
A. Just putting the - make it properly.
Q. Just pulling up the blanket. And you can do that.
A. Yeah. I don't like to because I'm usually in bed straight away, but I do it because she tells me.
Q. And I think you gave some evidence about reading for short periods of time.
A. I said I could, but then it would lead to a headache.
Q. Yes.
A. So I prefer not to, no.
Q. So when did you last read? For example‑‑
A. I've never - I've never been into reading.
Q. Never been a reader.
A. Never been into reading.
Q. So you're not a book reader.
A. No, no.
Q. Or a magazine reader.
A. No, never been into that.
Q. But you could read an article.
A. Yeah.
Q. So you do a little bit.
A. I can, but I don't.
Q. No.
A. It would lead to, obviously, the more I read, the more a headache will come. That's why I avoid it. Even before the accident, I was never a reader. So it was not something I'm interested."
Dr Stephenson's psychiatric treatment has continued. The defendant conceded that the plaintiff's reports of improvement from her treatment are of not more than "a marginal improvement" of mood: T page 117 line 35 to page 118 line 50. The defendant referred to Dr Stephenson's recommendation for a further two years of treatment and submitted that evidence "inferred an expectation of further improvement": T page 119 line 14. In my opinion, in the absence of Dr Stephenson being called to explain her recommendation for treatment, that evidence does not more than infer her professionally held assessment that treatment is worthwhile and from that, at least some possibility of improvement. I do not accept that evidence as inferring an expectation of further improvement. As earlier quoted, Dr Stephenson reported that it is improbable that the plaintiff's psychological condition will significantly improve.
On 20 May 2016, Oral and Maxillofacial surgeon, Dr Curtis, reported to "Case Officer" GIO General Ltd:
"Work capacity at present, I understand, is zero and any information in relation to future employment should be gained from a treating neuropsychologist in this case."
In his updated report to the plaintiff's solicitors dated 12 December 2018:
"In relation to return to pre-injury duties an opinion from a neuropsychologist in relation to the effects of the brain injury are more relevant than those factors involving the facial injuries in this case. The only factor involving the facial injuries is the necessity for taking a combination of Endone and Celebrex in relation to facial pain and it would be difficult to conduct employment as an Arborist requiring a certain degree of concentration whilst Endone is being used for facial pain in this case. Work capacity at present, I understand, is zero and any information in relation to future employment should be gained from a treating neuropsychologist in this case."
Counsel for the defendant submitted that the just quoted passage from Dr Curtis's 12 December 2018 report showed that facial injuries do not continue to cause a "specific unfitness for work": T page 121 line 15. I read Dr Curtis's opinion as not more than a specific reference to sequelae of the plaintiff's facial fractures and as not more than to say his face alone does not make him unfit for work. Indeed, even within that context, Dr Curtis ((at page 5(d)) reported:
"The prognosis for full recovery from the facial injuries in this case should be reasonably guarded, since full recovery from the facial disfigurement including the telecanthus present may be difficult to achieve."
As already observed, the plaintiff's refusal to undertake further facial surgery is reasonable in the circumstances of his ongoing psychological state and his fear of more pain from surgery.
Whilst expressly not conceding as a basic proposition that the plaintiff has no residual earning capacity, the defendant frankly conceded (T page 114 line 06 to line 14):
"that there is no positive evidence before your Honour of an actual job that the plaintiff could do, there is no evidence of an actual wage that the plaintiff could earn, there is no evidence of when the plaintiff may become capable of earning. I have to concede before your Honour that there is no evidence of that. There is some evidence that I will take your Honour to that falls short of that very stark description and that is all I can take your Honour to."
These reasons have dealt with those parts of the reported opinions of Dr Stephenson and Curtis, discussed above, as well as to other expert medical opinion evidence to which it is not required to turn in the same detail.
Dr Scoppa, ear, nose and throat physician (reports dated 3 August 2016 and 20 December 2018) described total post traumatic anosmia (total loss of smell) as a result of head and nasal injuries sustained in the accident and consequent loss of taste. Dr Scoppa wrote that the condition continued to render the plaintiff "unfit to perform those duties that require the employee to have an absence of dizziness, and an intact sense of smell in order to perform these duties competently and safely… he is not fit to return to work as an arborist…loss of smell… may interfere with his being able to detect oil leaks or burning of oil from machinery such as chainsaws and wood chippers and fires from timber and wood chips…he is unfit to pursue a career as a chef or in the restaurant industry." Dr Scoppa prescribed septoplasty for relief of naval obstruction and rhinoplasty for correction of nasal deformity; but I repeat my finding that it is not unreasonable for the plaintiff to refuse to undergo further facial surgery. Plainly another reason why the plaintiff should not work with machinery is because he would be unable to tell if it was on fire.