Chandra v Bunnings Group Ltd

His duties were essentially carrying out contract duties delivering hardware for the defendant in the Ashfield area generally. This work, which was an extension of the work he did for the defendant under its previous ownership, was based on a verbal agreement. This involved him making deliveries for the defendant of building materials such as timber, bricks, cement and gyprock. He was paid $28 per hour for this work. Before the injury which is the subject of this claim, the plaintiff did not experience difficulty with these heavier aspects of this delivery work. I accept his evidence in this regard.

For about seven years before his injury the plaintiff had experienced some knee pain. His evidence concerning this was that any such knee pain had not affected his ability to carry out the requirements of his work in the years before the injuries he received on 5 June 2006. I accept his evidence in this regard.

In the incident in question, immediately after the plaintiff fell, he realised he had sustained a sore back. He later realised he injured his left knee and left leg. He nevertheless carried out two deliveries that afternoon and then went to see a nearby general practitioner, Dr Latif whom he saw at about 3.00 to 4.00pm on that day, a few hours after being injured.

Dr Latif ordered x-rays of the back, the left knee and right ankle and gave the plaintiff some medication. The plaintiff did not return to work that day or subsequently. The plaintiff did not return to see Dr Latif again, because of parking difficulties he experienced in attending the practice of Dr Latif.

On 10 June 2006 the plaintiff consulted his usual general practitioner, Dr Laughlin at the Merrylands Medical Centre. The plaintiff told Dr Laughlin about the incident in question and that in the incident he fell onto his back and injured it. He also told Dr Laughlin that as he fell the timber landed on his left knee and he twisted his right ankle. Dr Laughlin felt that this mechanism of injury may have contributed to injury to the left knee. On examination, Dr Laughlin observed the plaintiff's back had spasm with associated restriction in flexion and extension. Dr Laughlin also noted that on examination the plaintiff had pain and swelling in what I infer from the context, were his left knee and right ankle.

Dr Laughlin arranged x-rays of the knee and ankle and these did not show any bony injury. He initially prescribed treatment with analgesia, ice packs and rest. On 13 June 2006 the plaintiff had physiotherapy at which time it was noted that he was having hip problems however this problem resolved in the short term.

The initial diagnosis was of soft tissue injury and strain to the affected areas.

Dr Laughlin continued to see the plaintiff on some 40 or so occasions at regular intervals to manage the after-effects of the injuries sustained in the incident.

The plaintiff has been taking Voltaren tablets daily for his back pain as well as occasionally taking Panadeine Forte but this latter medication caused him a gastrointestinal side-effect. He has also tried but ceased taking the medication Mobic. He was prescribed an anti-depressant medication but ceased this because it gave him headaches and made him feel sleepy.

In addition to being seen by general practitioners the plaintiff has been examined by various specialists. His solicitors arranged to have him assessed by Dr GD Patrick, a surgeon and Dr V Maniam, an orthopaedic surgeon. The workers' compensation insurer arranged to have the plaintiff assessed by Professor R Bauze, an orthopaedic surgeon, Dr M Bookallil, a neurosurgeon, Dr P Miniter, an orthopaedic surgeon, Ms L West, a physiotherapist, Mr G Frost, an exercise physiologist, Ms A Pyke, Ms A McGillivray and Ms T Simpson who are occupational therapists. In the paragraphs that follow I will review these assessments of the plaintiff.

Dr Latif - initially consulted general practitioner - no report tendered

No medical report has been tendered from Dr Latif, the general practitioner whom the plaintiff initially consulted on the day of his injury. The plaintiff stated Dr Latif examined him, gave him medication and suggested he take a week off work. Since there is no evidence that a report has been obtained from Dr Latif I draw no inferences concerning the absence of a report from him.

Dr Laughlin - the plaintiff's usual general practitioner

The defendant tendered 10 pages of handwritten clinical notes obtained from the file of the plaintiff's treating general practitioner, Dr Laughlin. The starting date of those notes was 17 February 2002 and the end date was 17 December 2008.

Those notes show that on 16 February 2002 the plaintiff had been involved in a previous motor vehicle accident in which he had injured both of his knees when they came in contact with the dashboard. It was also noted that he complained of some neck pain. The last entry in the clinical notes concerning that previous injury is dated 18 April 2002. The handwriting for that entry is difficult to decipher but it seems to indicate that there was tenderness evident on examination of the medial aspect of one of the plaintiff's knees and it was thought that there was a ligamentous injury without evidence of crepitus.

Those notes also show that on an uncertain date some time before 27 August 2005, amongst other things, the plaintiff had complained of low back ache for about 3 to 4 weeks. It is impossible to accurately decipher the handwriting in respect of this entry in the notes.

Thereafter, and significantly, there appears to be at least one page missing from Dr Laughlin's copied handwritten notes because there is no text included concerning any consultations between the entries for 19 February 2006 and 10 July 2006.

The significance of these absent consultation notes is that this period covers the time when the plaintiff first consulted Dr Laughlin in respect of the injury which is the subject of this claim. The absence of this material remains unexplained however Dr Laughlin has provided a report that relevantly deals with the plaintiff's injury.

On my reading of Dr Laughlin's notes made on 10 July 2006 he recorded that the plaintiff's ankle was better, but there was a complaint of a slight knee pain and a statement that the back pain was worse if the plaintiff coughed or sneezed. The remainder of the entry is difficult to decipher except for the notation that the plaintiff had been sent to an insurance doctor for an examination some two weeks previously.

I find it difficult to reliably extract any further clinical details from Dr Laughlin's notes apart from his notations suggesting that there had been regular contact discussions between himself and representatives of the plaintiff's workers' compensation insurer.

The report of Dr Laughlin commented on the plaintiff's back problems in the light of the findings on MRI he had arranged. He commented in the following terms: "Mr Chandra had an MRI performed on 17 August, 2007 and I assume you have a copy of the report. Essentially this showed quite marked generalised degenerative change and some posterior protrusion of discs at various levels. There is the possibility of some narrowing of the foramen on the right side at the L5 level, and therefore the possibility of sciatica.

I should also note that there is a prior history of low back injury and a fusion procedure carried out some years prior to this incident from which Joseph had recovered and after which he was carrying out the duties which were his pre-injury duties at the time of the accident without any difficulty. Hence, I don't consider this an aggravation but rather a new incident.

I note in other reports that where there is a finding of a back x-ray of degenerative change, that often times (sic) experts suggest that this is the cause of the problem. However, the presence of degenerative change in someone who is over 50 does not preclude worsening of symptoms as a result of a new injury, and I believe this is the case in this instance."

Dr Vijay Maniam - orthopaedic surgeon - report dated 20 August 2008

On 16 June 2000 the plaintiff was assessed by Dr V Maniam at the request of his solicitors. Dr Maniam took a history from the plaintiff that he sustained an injury to his lumbar spine on 5 June 2006. In the consultation the plaintiff complained about a moderately severe lumbar spine pain with radiation into the buttocks and lower limbs. Dr Maniam reviewed the prior history of lumbar fusion and examined the MRI scan dated 17 August 2007 which revealed a moderate degree of facet joint arthropathy, a right eccentric disc bulge, facet joint hypertrophy and ligamentum flavum hypertrophy, all of which appeared to compromise the central canal along with the possibility of a right L5 nerve root foraminal narrowing. He recommended treatment along conservative lines with physiotherapy and medication.

Dr WGD Patrick - general surgeon - report dated 4 July 2007

On 4 July 2007 the plaintiff was examined at the request of his solicitors by Dr WGD Patrick, a general surgeon. Dr Patrick prepared a report on the same day of the examination. Dr Patrick carefully recorded the plaintiff's complaints of post-accident problems. Dr Patrick noted an antalgic gait with the limp favouring the left lower limb. He noted the presence of thoraco-lumbar stiffness with limitation of movement and the presence of other signs. After reviewing the x-rays Dr Patrick commented that the plaintiff presented as genuine, with clinical evidence of left lower limb radiculopathy emanating from the lumbar spine. He also noted the presence of post traumatic, chondromalacia of the left patella.

Dr Patrick believed that the plaintiff's employment / work was a substantial contributing factor to his injuries and continuing symptoms concerning his back, left lower limb, left knee and right ankle. Dr Patrick was of the opinion that the plaintiff was permanently incapacitated for his pre-injury work as a delivery driver and was permanently incapacitated for physical work involving heavy lifting / carrying, frequent bending, prolonged stooping, significant squatting / kneeling, handling a lot of steps / stairs or ladder work, or working on uneven ground. Dr Patrick believed that the likelihood was that the plaintiff would be permanently incapacitated for all work.

Associate Professor RJ Bauze - orthopaedic surgeon - reports dated 22 June 2006 and 5 April 2007

On 22 June 2006, at the request of the workers' compensation insurer, the plaintiff was examined by Associate Professor Robert Bauze who reviewed the history of the incident, the significant past history, the history of the plaintiff's current complaints and then conducted a physical examination. He also reviewed the products of investigations namely x-rays. Associate Professor Bauze concluded with his diagnosis that the plaintiff had aggravated degeneration in the lower lumbar spine and had also quite possibly aggravated pre-existing intervertebral joint degeneration. He agreed that the plaintiff appeared to be in extreme pain at the time of examination and was not fit for any form of work. He stated that the prognosis was guarded. He was of the opinion that the plaintiff has aggravated pre-existing degeneration of the lumbar spine and that such aggravation had not yet ceased at the time of the examination. He also concluded that the incident of 5 June 2006 was a substantial contributing factor to the current condition, as an aggravation of the pre-existing degeneration. He suggested a review of the plaintiff in three months time.

On 5 April 2007 Associate Professor Bauze re-examined the plaintiff and reviewed the history since his last report. He noted that the plaintiff walked very awkwardly in apparent genuine pain and noted that it was very difficult for him to get out of the chair at the time of examination. Associate Professor Bauze reiterated his earlier diagnosis, confirmed the consistency of the history and the complaints and noted that there had been minimal improvement. He accepted that the plaintiff remained with significant low back pain which, in his opinion, was genuine. He confirmed that the plaintiff was unfit for any form of work and noted that it was unlikely that he would ever be able to return to work, the aggravation of the earlier condition having not ceased.

Dr Paul Miniter - consultant orthopaedic surgeon - report dated 12 September 2007

On 10 September 2007, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Paul Miniter, a consultant orthopaedic specialist. Dr Miniter noted that he had read and noted the documentation which had been forwarded to him but he did not otherwise fully identify that information. It seems that Dr Miniter had at least been provided with a copy of a lumbosacral MRI scan report dated 17 February 2007.

Dr Miniter noted his interpretation of the plaintiff's complaints as being poorly defined back pain extending from the mid-thoracic zone to the lumbosacral junction with pain in the left buttock made worse with sneezing and he noted the plaintiff's complaint of an inability to return to work. He also noted a complaint of weight gain. Dr Miniter considered the plaintiff to be a particularly pain focused individual because of many non-organic signs in the presentation. He found no abnormality on examination of the left knee. He noted extensive disease affecting the entire lumbosacral spine protuberances of the L2/3, L3/4, L4/5 and L5 discs without clear evidence of nerve root compression although he acknowledged that there may be some narrowing of the right sided L5 outlet foramen and difficulty identifying the previous surgery. He found he was not certain of the cause of the plaintiff's pain and found the diagnosis to be elusive.

In answer to specific questions asked of him by the insurer Dr Miniter stated that the plaintiff had non-specific back pain in the lumbosacral and thoraco-lumbar spines. He stated his disagreement with the plaintiff's self-assessment of his own employability and regarded him as being fit to return to work. Dr Miniter gave no reasons for his view in that regard.

In answer to other questions he addressed the question of estimated period of incapacity and prognosis by stating that the estimated period of incapacity after an injury of the sort reported by the plaintiff was somewhere between six and eight weeks although if there had been a disc disruption this could be expected to extend to 3 months. Dr Miniter expressed the view that by the date of his examination the plaintiff could have been functional enough to return to some type of employment. He stated that the plaintiff did not require formal rehabilitation and he further stated that one would have to regard the plaintiff's injury as an aggravation although the exact cause of the plaintiff's problem was very difficult to determine and the cause of the pain would in all likelihood remain elusive.

Importantly, Dr Miniter stated that he did not regard the plaintiff to be fit for unrestricted duties and regarded him as being able to return to truck driving as long as there was no extensive loading involved in this work. He did not identify reasoning for these views as required by clause 5(c) of schedule 7 to the Uniform Civil Procedure Rules 2005.

Dr Anthony Bookallil - consultant neurosurgeon - two reports dated 25 February 2008

On 25 February 2008, the plaintiff was examined by Dr Anthony Bookallil at the request of the workers' compensation insurer. The report of that examination bears the same date. Dr Bookallil reviewed the prior history and reported on the results of his physical examination. He noted that the plaintiff had impaired back movement to the extent of about half the normal range. He noted that the pain in the legs was worse with walking and was relieved by rest as was classic of lumbar canal stenosis but he also noted that the plaintiff's most overwhelming symptom was the back pain which was constant and required painkilling medication. He was of the opinion that the plaintiff was incapacitated for all but light work, that such incapacity was indefinite, and the prognosis of the incapacity was guarded. He concluded that the plaintiff had aggravated a pre-existing condition of his back and that such aggravation had not ceased.

Peak Conditioning physiotherapy report dated 14 August 2006

On 14 August 2006 the plaintiff was assessed by Ms Jocelyn West, a physiotherapist engaged by the workers' compensation insurer. The purpose of the assessment was to ascertain the feasibility of rehabilitating the plaintiff to his pre-injury duties as a truck driver and manual labourer. She recommended that that the plaintiff participate in a one month Peak Conditioning work hardening program comprising eight supervised gymnasium-based sessions and to case conferences with an exercise physiologist.

Peak Conditioning exercise physiologist's report dated 26 September 2006

On 26 September 2006, Mr Glen Frost, the exercise physiologist engaged by the workers' compensation insurer, reported upon the plaintiff's completion of the supervised exercise sessions that had been previously recommended. By the conclusion of the programme the plaintiff had improved his functional tolerances however he was still not able to carry out his pre-injury work. It was concluded that the plaintiff was unable to reach the rehabilitation goal by the completion of the programme.

Peak Conditioning exercise physiologist's report dated 1 December 2006

On 1 December 2006, Mr Frost prepared a further report following the plaintiff's completion of a further supervised programme of exercise sessions aimed at advancing his rehabilitation. Whilst there were some exercise benefits from the sessions which improved some of the plaintiff's fitness levels, and whilst the plaintiff was compliant with the program, he still demonstrated pain focused behaviour. Consequently, no further supervised sessions were recommended, the program ceased and the plaintiff was left to maintain his exercise program independently.

On 17 August 2007, at the request of the workers' compensation insurer, the plaintiff was examined by Ms Azaria McGillivray, an occupational therapist and by Ms Amelia Pyke, a rehabilitation counsellor. This process involved a two and-a-half hour functional assessment and a two hour vocational assessment, which involved a combination of interview and functional activities. This process demonstrated that the plaintiff was precluded from returning to his pre-injury employment.

The plaintiff was considered to be unsafe for the performance of many of the postural and dynamic tasks involved in such employment, demonstrating reduced muscular strength, endurance and biomechanical control. This assessment merely resulted in recommendation for the plaintiff to participate in volunteer work or an updated work conditioning program to improve his fitness levels, postural tolerances and mobility. They thought that courses involving such tasks could possibly increase the chances of the plaintiff returning to the workforce. Referral to a rehabilitation provider was recommended as was referral to cognitive behavioural therapy to assist the plaintiff with his moderate to severe depressive symptoms. No evidence has been obtained from a psychologist or from a psychiatrist.

Work Solutions report received by workers' compensation insurer on 28 November 2007

On 28 November 2007, Ms Trudy Simpson, an occupational therapist of Work Solutions sent an undated letter to the workers' compensation insurer in which she reviewed a number of reports, including one which was not the subject of tender in evidence. She concluded that the plaintiff was not currently fit to return to work in any capacity. It was noted that further rehabilitation programmes were required in order to enhance the prospects of the plaintiff returning to work. It appears that this report was based on a review of the papers rather than being based on an actual examination of the plaintiff.

Before the injuries in question the plaintiff had episodes of back pain which he described as being slight. This was not surprising since he had previously sustained a significant back injury for which he had spinal fusion surgery. It is also unsurprising because he was engaged in heavy work which he nevertheless found manageable. His evidence was that the prior back injury did not affect his ability to do his work which consisted of loading and unloading items of hardware from his truck. Similar comments apply with regard to a previous left knee condition. I accept his evidence in that regard. It is borne out by his steady work history and by the absence of medical evidence in the records of his general practitioner as to any periods off work due to disability before the events with which this litigation is concerned.

Following his injury the plaintiff's back condition changed from having what I infer was an intermittent and occasionally slight problem, to what has since become a very severe problem with back pain. He experiences pain from the mid-line of the back at about belt level from the centre extending to the hips. This prevents him from sitting for prolonged periods. He experiences a pins and needles sensation in both legs. Bending and prolonged standing are also problematic for him. The preponderance of the medical opinions is that the plaintiff has sustained a significant aggravation of an underlying back condition that has as a result become incapacitating and productive of significant pain, discomfort and restriction of movement. This aggravation has been characterised by Dr Laughlin as not so much an aggravation but a new incident. Given the opinions of Dr Patrick, Professor Bauze and Dr Bookallil, whose opinions I prefer and accept in preference to that of Dr Miniter, I do not consider it necessary to resolve the issue of whether there has been a new injury or an aggravation. Both explanations seem reasonable and plausibly explain the plaintiff's ongoing problems which prevent him from working.

The plaintiff experiences continuing problems with his left knee. The knee injuries he received in a motor vehicle accident in 2002 had mostly resolved and his left knee only gave him occasional problems with pain. Now his left knee gives him considerably more problems. He feels like he is falling at times although he has not yet fallen. Dr Patrick, whose opinion I accept, identifies the condition of chondromalacia patella as the probable explanation for the knee problem.

The plaintiff has difficulty with mobility, climbing stairs or negotiating uneven ground. He has reduced standing and walking tolerance, having to stop walking after about 20 minutes. He experiences difficulty driving a car.

These problems cause him upset, he has become cranky and argumentative. He takes Voltaren and occasionally Panadeine Forte for his pain. He was trialled with anti-depressants but these gave him headaches. He continues to suffer from sleeplessness.

He has difficulties carrying out heavier forms of housework which involve bending and mopping. He has difficulty tying his shoelaces. These types of activities cause him to experience back pain. He intends to obtain paid help for these tasks which are presently provided to him gratuitously by his son.

The plaintiff has not worked since his injury. He has become and remains unfit for work. The plaintiff misses the emotional satisfaction and enjoyment that his work previously gave him. I accept the medical opinions that he remains unfit to return to work.

The plaintiff's reading, writing and spelling difficulties have made it difficult for him to readily obtain alternative employment. This is readily apparent from his unsuccessful attempt at training to use a computer as part of his rehabilitation programme.

The plaintiff stated that he believed he could not manage to work an 8 hour day . He experiences a feeling of pins and needles on the sides of his legs and he finds difficulty with sitting for too long. He finds other activities such as climbing stairs, walking on uneven ground, driving for sustained periods up to an hour and even stacking light objects to be aggravating factors for his back pain. His walking tolerance has been reduced to about 20 minutes following which he experiences pain in all of his back. He restricts his walking to 10 minutes to go to the local shops. Even then he finds the need to take a rest break from 10 minutes of walking. He now experiences some problems with his left knee and it feels as if it is going to give way on him and may cause him to fall. The plaintiff also has left knee pain which is worse than the knee pain he experienced before his injuries. He experiences back problems and difficulty with the simple task of putting on shoes and prefers laceless shoes for this reason.

The foregoing problems do not auger well for placing the plaintiff in alternative employment.

The plaintiff presents as a challenge for rehabilitation into alternative employment. This is because of background factors concerning his age, his prior history of injury, his limited abilities with regard to reading and writing and, more significantly, the effects of his disabilities which have already been described. In my view those disabilities significantly reduce his prospects for placement in alternative employment to carry out suitable light duties.

This challenge has been demonstrated by the failed attempts at rehabilitation by the workers' compensation insurer. The plaintiff could not be trained for computer skills. Although he has not worked since his injury this has not been for want of trying. He has been looking for suitable work, including in car sales and has attempted many telephone interviews without success. He remains hopeful of finding some kind of work despite the medical opinions suggesting he is unfit. His optimism may well be misplaced.

I consider that the plaintiff has taken reasonable steps to endeavour to mitigate his post-injury situation. On the advice of rehabilitation providers the plaintiff has carried out rehabilitative exercises. I find that the plaintiff has made reasonable efforts to mitigate the effects of his injuries and therefore his damages should not be reduced on account of any alleged failure to mitigate his loss.

The plaintiff's claim incorporates items of future losses for treatment and for domestic assistance. Any allowances for these items of expenditure requires projection over his remaining life span. The evidence does not disclose any reason why for assessment purposes the plaintiff's future life span should be discounted for early or greater than average mortality. According to the prospective life tables, a male aged 58 years can expect an average life span of a further 27 years. Accordingly, I propose to project the plaintiff's future losses over a period of 27 years. The 5 per cent multiplier for 27 years is x 783. I now turn to an assessment of the individual heads of damage claimed by the plaintiff.

The plaintiff's entitlement to damages for non-economic lost is governed by s 16 of the Civil Liability Act 2002. Given the plaintiff's present age of 58 years, his ongoing back and knee problems, the related mobility and physical restrictions imposed on him concerning every day and commonplace activities as described in the medical opinions that I have accepted, I consider that an appropriate award of damages for non-economic loss to be 28 per cent of the most extreme case pursuant to the s 16 table that was applicable at the time of the commencement of the trial. This is the equivalent of $101,200. Accordingly, I assess the plaintiff's entitlement to damages for non-economic loss in the sum of $101,200.

The plaintiff's claim for past loss of earnings is at the rate of $42,056 gross per annum for 152.57 weeks from 5 June 2006 until the commencement of the hearing on 5 May 2009. The sum of $42,056 per annum gross is the equivalent of $500 per week net. The loss of $500 per week net over 152.57 amounts to sum of $76,285 net. This calculation is based on the plaintiff's income tax return for the year ended 30 June 2005.

I consider this to be a very conservative basis of calculation as it makes no allowance for increments that would have applied since the time of the injury. I consider that the amount claimed to be inherently reasonable and I therefore accept the submitted sum as the appropriate basis for calculation of the plaintiff's damages for past loss of earning capacity.

The plaintiff has not worked since his injury. The preponderance of the medical evidence, which I have accepted confirms that the plaintiff has been unable to work in his pre-injury employment since that time. He has undertaken reasonable attempts to mitigate his loss of earnings and has co-operated with reasonable suggestions for treatment. In these circumstances I consider that the plaintiff should be compensated at the full rate that has been submitted on his behalf. Accordingly, I assess the plaintiff's entitlement to damages for past loss of earning capacity in the sum of $76,285.

The plaintiff remains unfit to resume his pre-injury employment. This is confirmed by the medical evidence that I have accepted. Notwithstanding that state of unfitness, he nevertheless remains hopeful that he may find some kind of non-arduous light work that does not require full and active physical duties and full hours of work. Guided by the medical evidence that I have accepted, I consider that the plaintiff is overly optimistic in his hope of finding and sustaining such employment. However, consistent with his expectations of finding work, he has conceded a residual future earning capacity of $100 net per week. This results in a claim for $400 net per week for future loss of earning capacity. I cannot see a sound basis in the evidence for such a concession but since that concession has been formally made by counsel on his behalf, I propose to give effect to the concession.

The plaintiff initially claimed future loss of earning capacity until age 65 years but in accordance with more current trends of work force participation this was later amended to claim loss of earning capacity to age 67 years. I consider the amended approach to be appropriate to the times and I propose to assess the claim for future loss of capacity over the remaining nine years to age 67 at $400 per week net less a 15 per cent discount for potential adverse vicissitudes.

The projection of $400 per week net at 5 per cent over 9 years (x 380.1) less 15 per cent for vicissitudes yields $129,234. Accordingly, I assess the plaintiff's entitlement to damages for future loss of earning capacity in the sum of $129,234 .

Consistent with my finding that in the period between 5 June 2006 and the date of the hearing the plaintiff has lost earning capacity in the sum of $76,285 it is necessary to assess the value of the past loss of employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11 per cent of the net sum awarded for past loss of earning capacity is taken to represent the loss for this head of damage. Accordingly, 11 per cent of $76,285 is the equivalent of $8,391. I therefore assess the plaintiff's entitlement to damages for past loss of superannuation benefits in the sum of $8,391.

Consistent with my findings in respect of past net employer funded superannuation losses it is necessary to assess the value of the loss to the plaintiff of future employer funded superannuation benefits, I apply a similar convention of 11 per cent of the net sum awarded for future loss of earnings to represent the loss for this head of damage. Accordingly, 11 per cent of $129,234 is the equivalent of $14,215. I therefore assess the plaintiff's entitlement to damages for future loss of superannuation benefits in the sum of $14,215.

The parties have agreed that the amount of tax paid by the plaintiff on his weekly worker's compensation benefits amounts to $13,695. Accordingly, I assess the plaintiff's entitlement to damages for the Fox v Wood component of his damages in the sum of $13,695.

The plaintiff claims the sum of $10 per week to cover the likely cost of future treatment expenses. The evidence in support of such a claim is that the plaintiff will continue to take medication and will need to periodically see a doctor. The defendant submits that such a claim is not justified and no allowance should be made on this account.

I consider the amount claimed for future treatment expenses to be very modest and reasonable, especially when it is gauged against the treatment costs the plaintiff has incurred to date. I think it is appropriate to allow $10 per week towards the cost of medication and the cost of occasional medical and allied treatment. I therefore allow the claim. The projection of the sum of $10 per week at 5 per cent over 27 years (x 783) yields $7,830. Accordingly, I assess the plaintiff's entitlement to damages for future treatment in the sum of $7,830.

Although no claim is made for past domestic assistance, the plaintiff makes a claim for future paid domestic assistance for 2 hours per week for the remaining 27 years of his projected life span at the rate of $20 per hour which is the equivalent of $40 per week. The basis of the claim is that the plaintiff has difficulty with the heavier forms of housework such as mopping, cleaning and scrubbing the bathroom and toilet areas of his home and occasional heavier cleaning and the bending that is associated with those tasks. In the past he has been unable to afford to engage commercial cleaners but he has said that he wishes to obtain paid domestic assistance for the provision of such services in the future.

The defendant submits that this component of the plaintiff's claim ought not be allowed because the work that is the subject of the claim is presently being performed gratuitously by the plaintiff's son who for the moment lives with him and this situation is likely to continue. The defendant submits that no liability for the cost of such assistance has or will arise for the purpose of assessing damages.

To recover damages for the cost of such services the plaintiff must show that the need for the claimed services is an injury created need and that the services would not have otherwise been provided in any event. If this threshold entitlement is established, as I think it has, the claim should be assessed at the commercial cost of providing such services. The defendant concedes the plaintiff's submission that the rate of $20 per hour represents a reasonable cost of such services. I consider that rate to be more than reasonable as it is less than the hourly rate provided by s 15 of the Civil Liability Act 2002 for the assessment of claims for past domestic assistance.

In my view the plaintiff is entitled to be compensated for the cost of future paid domestic assistance of the kind sought. I consider that the claim for 2 hours per week is reasonable for the activities described by the plaintiff in his evidence, particularly since the medical evidence discloses that he is unfit for work that involves repeated bending and because he has difficulties with bending tasks, for example, tying his own shoelaces. I consider that but for his injuries the plaintiff would not have required such assistance.

I reject the submission that the services that are presently being gratuitously provided by the plaintiff's son are likely to continue to be provided by him in that manner. The evidence discloses that the plaintiff's son is aged 28 years. I am not prepared to infer that the plaintiff's son will continue to live with the plaintiff for a further 27 years and will continue to provide these services gratuitously. In my view the plaintiff is entitled to be compensated for the future commercial cost of these services because these costs address an injury based need caused by the negligence of the defendant.

The projection of the sum of $40 per week at 5 per cent over 27 years (x 783) yields $31,320. I do not propose to discount this sum as I do not consider there to be any cogent reason to infer that the plaintiff may have needed such services in the future in any event, as he grew older. Accordingly, I assess the plaintiff's entitlement to damages for future domestic assistance in the sum of $31,320.

The parties have agreed upon the amount representing the plaintiff's reasonable past out-of-pocket expenses in the sum of $20,454. Accordingly, I assess the plaintiff's entitlement to damages for past out-of-pocket expenses in the sum of $20,454.

My assessment of the plaintiff's damages is summarised as follows:

(a) Non economic loss $101,200 (b) Past loss of earnings $76,285 (c) Future loss of earning capacity $129,234 (d) Past loss of superannuation $8,391 (e) Future loss of superannuation $14,215 (f) Fox v Wood $13,695 (g) Future treatment expenses $7,830 (h) Future domestic assistance $31,320 (i) Past out-of-pocket expenses $20,454 Total $402,624

The plaintiff has succeeded on the issue of liability without any reduction of his damages on account of alleged contributory negligence. Nor has there been any reduction in the entitlement to damages on account of s 151Z(2) of the Workers' Compensation Act 1987. I therefore assess the plaintiff's entitlement to damages in the sum of $402,624.

I make the following orders:- (a) Verdict and judgment for the plaintiff in the sum of $402,264; (b) Defendant to pay the plaintiff's costs; (c) Exhibits may be returned; (d) Liberty to apply on 7 days notice if further orders are required.

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.