Drazina v De Martin & Gasparini Pty Ltd

District Court of NSW|2010-03-04

CITATION: Drazina v De Martin & Gasparini Pty Ltd [2010] NSWDC 26

CATCHWORDS: Workplace injury - Labour hire to non-employer - Injury on premises of non-employer - Duty of care of employer and non-employer - Contributory negligence - Damages

LEGISLATION CITED: Workers Compensation Act 1987 s 151Z Civil Liability Act 2002 S 5R

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338 Estate of the Late MP Mutton by its Executors & RW Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340 CASES CITED: Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423 Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82 Maricic v Dalma Formwork Australia Pty Limited & Anor [2006] NSWCA 174 McLean v Tedman [1984] HCA 60 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

PARTIES: Branko Drazina De Martin & Gasparini Pty Ltd

COUNSEL: H N Kelly SC & T McKenzie for the Plaintiff R Gambi for the Defendant

SOLICITORS: Taylor and Scott Lawyers for the Plaintiff Davidson Gerathy Lawyers for the Defendant

1 The plaintiff was a concretor. On 15 December 2005, his employer, Vamugo Concreting Proprietary Limited (Vamugo) told him to attend a construction site at Rhodes, report to De Martin and Gasparini Proprietary Limited (DMG) concretors, and follow their directions. In the course of the day, DMG asked the plaintiff to hold a hose during a "blowout", a procedure designed to clean out a concreting hose by forcing the concrete out using an air compressor. Such a task is not part of the normal work of a concretor. A blast of air jolted the hose, which flicked up and struck the plaintiff on the right temple.

2 The plaintiff sued DMG, claiming that the accident caused injuries to his neck, right shoulder and head, and resulted a psychiatric disorder. DMG admitted that it breached its duty of care to the plaintiff.

Issues (1) Whether and to what extent damages are to be reduced because DMG is entitled to recover a contribution from Vamugo. The resolution of these issues hinges on whether Vamugo breached its duty of care to the plaintiff, whether the plaintiff suffered a whole person impairment of at least 15% and who bears the onus of proving those matters.

(2) Whether the plaintiff was guilty of contributory negligence.

(3) The extent of the plaintiff's non-economic loss. Inter alia, whether and to what extent the accident caused a right shoulder disability.

(4) The extent of the plaintiff's past and future economic loss. Inter alia, it is necessary to decide the most likely period for which the plaintiff would have worked but for the accident.

Section 151 Z and Whether Vamugo Breached Its Duty Of Care

3 Section 151Z (2) of the Workers Compensation Act 1987 relevantly provides: "(2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division three as to the award of damages," (emphasis added)

4 The expression in s 151Z (2) "is entitled to take proceedings" refers to an employee's cause of action against an employer, rather than to whether the enforcement of the cause of action would result in an award of damages: Grljak v Trivan Pty Ltd (In Liq) (1994) 35 NSWLR 82 (Grljak No 1). In considering the question of entitlement to take proceedings, it is irrelevant that, if proceedings were taken, the employee would not recover damages because the employee could not satisfy the 15% permanent impairment threshold.

5 In Forstaff Blacktown Pty Limited v Brimac Pty Limited & Anor [2005] NSWCA 423 at [74], McColl JA summarised the operation of s 151Z (2) (c) and (d) as follows: "(b) The figure used in s 151 Z (2) (c) is calculated by the Court: (i) deciding the amount of the contribution the non-employer would (but for Pt 5) be entitled to recover from the employer as a co-tortfeasor or otherwise at common law; (ii) deciding what is "the amount of the contribution recoverable" within the section 151 Z (2) (c) and s 151 Z (2) (d); and (iii) deducting the second figure from the first, the product being the amount by which the plaintiff worker's common law damages from the non-employer tortfeasor are to be reduced: Grljak No 1 (at 88 - 89) Clout (at [29] - [31])."

6 DMG submitted that Vamugo breached its duty of care in that Vamugo should have warned the plaintiff to refuse work that was unsafe, unfamiliar or beyond the normal scope of work for a concretor. Instead, the plaintiff was simply told to report to DMG at Homebush Bay and follow instructions.

7 The duty of care owed by a labour hire company was discussed in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99. In the leading judgment at [33] - [36], McColl JA reaffirmed the proposition that an employer owes an employee a special and stringent duty of care that is non-delegable. A labour hire company remains responsible to its employees for the provision of safe plant and equipment: Pollard at [41] referring to Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28. The duty extends to giving an employee such directions about the performance of work as might reasonably be required to prevent the danger of injury: Pollard at [36] and [43]. The Court must take into account the power of the employer to prescribe, warn, command and enforce obedience to its commands: Pollard at [37] referring to McLean v Tedman [1984] HCA 60.

8 The fact that the employee is not working at premises controlled by the employer is an important consideration: Pollard at [48] - [50], discussing Estate of the Late MP Mutton by its Executors & RW Mutton trading as Mutton Bros v Howard Haulage Pty Limited [2007] NSWCA 340. In considering whether an employer has discharged its non-delegable duty in relation to an employee working at a third party's premises, relevant factors include the employer's opportunity to inspect the premises, the length of time that the employee will work at the premises, the employer's awareness of danger and the employer's capacity to shield employees from the danger: Pollard at [45]. Other relevant considerations include whether the danger was latent and whether the negligence was casual or part of a system of work: Pollard at [60], discussing Atkinson v Gameco (NSW) Pty Limited [2005] NSWCA 338.

9 Vamugo did not act as a labour hire company, and a Vamugo employee supervised Vamugo concretors when they worked on third party's building site. However, on 15 December, the plaintiff was working at premises that were not controlled by Vamugo and there was not a Vamugo supervisor on site. Therefore, Vamugo's duty of care to the plaintiff at that time, was analogous to that of a labour hire company.

10 Vamugo had no control over the worksite or the system of work. Seemingly in response to a late request by DMG, at 9:30pm or 10pm on the evening of 14 December the plaintiff was assigned to work with DMG at Homebush Bay. The assignment was short term, possibly no more than a day. Consequently, there was little opportunity for Vamugo to inspect the premises and limited utility in doing so. The danger did not arise as part of the system of work for which the plaintiff was contracted to DMG. He was assigned to work as a concretor, not a concrete pump operator. The plaintiff was an experienced concretor. Previously, the plaintiff had worked with DMG under the supervision of a Vamugo employee. There is no evidence of any previous request that the plaintiff undertake unsafe work or work that was beyond the normal scope of work for a concretor. With the benefit of hindsight, the injury may have been avoided had Vamugo warned the plaintiff that he should refuse work that was unsafe, unfamiliar or beyond the normal scope of work for a concretor. However, the risk of injury was not reasonably foreseeable.

11 In any event, in the absence of proceeding against Vamugo, the onus of establishing that Vamugo breached its duty of care fell on DMG: Maricic v Dalma Formwork Australia Pty Limited & Anor [2006] NSWCA 174 at [71], where the Court approved the approach of Hodgson JA in Forstaff Blacktown Pty Ltd v Brimac Pty Ltd [2005] NSWCA 423 at [5]. The onus has not been discharged.

12 DMG submitted that the plaintiff was guilty of contributory negligence. DMG contended that the plaintiff was aware of the risk posed by the hose becoming blocked and flicking upwards. Relying on the evidence of the witness Mr Di Stefano, DMG argued that, although he was instructed as to how the hose should be held and initially held the hose correctly, the plaintiff chose to alter his grip and hold the hose less securely by holding it "on top".

13 Section 5R of the Civil Liability Act 2002 applies to an assessment of contributory negligence. A finding of contributory negligence turns on a factual investigation of whether a plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person, given the circumstances of the case, including the duty owed by the defendant: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [16].

14 Mr Migliari, the concrete linesman who was in charge of the "blowout" operation, told the plaintiff to hold the hose under his arm and firmly in both hands, with the hose angled into the bin into which concrete was to be deposited. Mr Migliari did not demonstrate the manner in which the hose should be held but, before he opened the valve to release concrete through the hose, he observed that the plaintiff was holding the hose correctly. Mr Eddine, the co-worker who was standing a metre behind the plaintiff, observed that the hose was under the plaintiff's arm, the plaintiff was holding it with both hands and the hose was directed into the bin. Mr Di Stefano saw that the plaintiff had his hands "on top of" the hose and thought that the procedure was going well until he heard a loud bang.

15 In the context of the evidence of other witnesses and Mr Di Stefano's statement that the operation appeared to be going well, the use that DMG seeks to make of his expression "on top of" is unwarranted. I am far from satisfied on the balance of probabilities that the plaintiff was holding the hose in an inappropriate manner. According to the accident report (part of Exhibit A), one cause of the accident was a "failure to monitor concrete flow". That failure may well have been the sole effective cause of the accident. I am not satisfied that the plaintiff's conduct contributed to his loss.

16 In order to determine the significance of the plaintiff's injuries and disabilities, it is necessary to consider whether the plaintiff was a reliable witness.

17 In relation to the accident itself, the plaintiff was a credible witness. His account of the accident was consistent with the accounts of the DMG witnesses and with commonsense. In the witness box, he presented as an honest witness who genuinely experienced the pain and restricted movement of which he complained.

18 DMG contended that the plaintiff understated the extent to which he suffered from disabilities sustained in a 1986 work accident at the Queen Victoria Building (QVB) in Sydney. In the QVB accident, the plaintiff injured his left neck, left shoulder and lower back. In evidence, the plaintiff said that, within 12 to 18 months of the QVB accident, his neck problems had resolved. However, medical reports (Exhibit 1) show that, in June 1989, the plaintiff complained of ongoing pain in the left neck and shoulder, and parasthaesia in the fingers of the left hand. At that time, the plaintiff asserted that he could not work full-time and Dr Wolfenden opined that the QVB accident had aggravated pre-existing disc degeneration, causing nerve root irritation. He accepted that the plaintiff was incapable of full-time heavy work (Exhibit 1). However, the compensation proceedings were settled in August 1989 and in 1990 the plaintiff resumed full-time work as a concretor. He continued to work as a full-time concretor until the accident in December 2005. I accept DMG's submission that it is most improbable that, between mid 1989 and 1990, the plaintiff underwent a dramatic recovery. I find that, in 1989, the plaintiff overstated his physical symptoms, either consciously or unconsciously.

19 The plaintiff walks with a limp. DMG argued that this was an example of the plaintiff exaggerating symptoms or adopting a "sick role". In the accident, the plaintiff bumped his right knee. In cross-examination, he said that he had been limping since the accident. However, he did not claim damages in relation to the limp and there was no medical evidence in relation to a significant ongoing disability in the right knee.

20 The plaintiff complained of severely disabling pain and restricted movement but conceded that he was capable of certain activities, including carrying a case of beer in both hands, placing the carton onto his left shoulder and then into his vehicle.

21 Despite his presentation in the witness box, the background of a "dramatic recovery" after the QVB accident, the plaintiff's unexplained limp and his capacity to perform certain activities mean that his assertions regarding the disabilities said to arise from the accident warrant careful examination.

22 Disregarding the plaintiff's assertions about the extent of recovery from the QVB accident, the plaintiff's work history from 1990 and the pre-accident notes of Dr Williams (the plaintiff's long-standing general practitioner) establish that, as at 15 December 2005, the plaintiff's lifestyle and work capacity were unaffected by the QVB accident. Consequently, I do not accept the submission of DMG that the opinions of many doctors are unreliable because the doctors were unaware of the QVB accident or mistakenly believed that the plaintiff suffered from no continuing disabilities as at December 2005.

23 The plaintiff complains of ongoing neck pain and headaches. He complains of pain in the right shoulder radiating down the right arm to the hand. DMG accepts that the accident caused an aggravation of a pre-existing degenerative condition in the cervical spine but disputes that the accident caused an injury to the right shoulder.

24 There is convincing medical evidence that the accident aggravated pre-existing degenerative change in the cervical spine. When ambulance officers spoke to the plaintiff at the scene of the accident, he complained of neck and thoracic pain (Exhibit 2). Since the accident, the plaintiff has complained of cervical pain and headaches. Since 2007 he has complained of pain radiating down the right arm associated with numbness and paraesthesia. In March 2006, an x-ray of the cervical spine showed narrowing of the C 5/6 disc space with degenerative change. In July 2006, a CT scan of the cervical spine confirmed cervical spondylosis maximal at C 5/6. In 2008, Dr Williams referred the plaintiff for treatment by Associate Professor Sheridan, a neurosurgeon, who viewed an MRI taken on 18 August 2008 and observed right sided C 5/6 disc protrusion causing nerve root compression "entirely consistent with his injuries and his symptoms" (of tenderness in the cervical spine and decreased range of movement in the right shoulder). As to the pre-existing degenerative changes in the plaintiff's neck, he stated "if it had not been for the accident (the plaintiff) wouldn't be in (his) current state". In June 2009, Dr Powell, an orthopaedic surgeon, examined the plaintiff on behalf of DMG. He accepted that pre-existing degenerative changes in the cervical spine maximal at C 5/6 were aggravated by the accident on 15 December 2006, although he considered that the plaintiff was "pain focussed" and was overstating his symptoms.

25 DMG submitted that the plaintiff could not establish that the accident caused the right shoulder injury. First, DMG noted that Dr Dave, the plaintiff's treating orthopaedic specialist, opined that, in the accident, there was a direct trauma that destabilised the plaintiff's right shoulder. DMG argued that the Court would not be satisfied that the plaintiff sustained a direct trauma to the right shoulder in the course of the accident. In this regard, DMG relied on the evidence of Mr Di Stefano that the plaintiff was "on his knees" immediately after the accident. DMG submitted that, having been hit on the forehead by the hose, the plaintiff dropped to his knees and there was no direct trauma to the right shoulder. DMG submitted that it was more likely that any right shoulder injury was sustained in the course of previous employment.

26 The accident report prepared by DMG (Exhibit A) notes the observation of Mr Migliari, a witness, that the hose hit the plaintiff and a co-worker "on parts of their upper bodies and face causing them to fall on the floor". In evidence, Mr Migliari confirmed that, after he heard a big bang, the two men "were on the ground". The accident report records that Mr Di Stefano heard a loud bang and saw two men "lying on the ground". That account, given by Mr Di Stefano immediately after the accident, is much more likely to be accurate than the account that he gave in evidence and is consistent with both accounts given by Mr Migliari. It follows that the plaintiff could have suffered a traumatic injury to the right shoulder either when the hose struck his upper body or when he fell to the ground.

27 Second, DMG submitted that a right shoulder injury could have been sustained in the course of previous employment. The records of Dr Williams were subpoenaed. For many years prior to 2005, Dr Williams was the plaintiff's general practitioner. However, there was no evidence that, prior to the accident, the plaintiff complained to Dr Williams about right shoulder pain. As the plaintiff has not worked since the accident, he could not have sustained a subsequent right shoulder injury in the course of work. The right shoulder injury was caused by trauma and the accident is the most obvious source of trauma.

28 Next, DMG argued that, as the first documented complaint of pain was on 27 January 2006, the Court should not accept the plaintiff's evidence that he experienced significant pain in the right shoulder soon after the accident. Westmead Hospital notes record no complaint in relation to the right shoulder. The clinical notes record observations of normal tone and power in both upper limbs. A CT and x-ray of the cervical spine disclosed degenerative changes at C6/7 but no recent bony injury. After he was discharged from Hospital, on 19 December 2005 and 7 January 2006 the plaintiff saw his general practitioner, Dr Williams in relation to his head injury. Dr Williams made no note in relation to the right shoulder. It was not until 27 January 2006 that Dr Williams noted a complaint of right shoulder pain. He referred the plaintiff for an x-ray, which proved normal.

29 In assessing the reliability of his evidence, the Court is mindful of the plaintiff's history of overstating disabilities in relation to the QVB accident. However, I accept that the plaintiff did experience pain in his right shoulder soon after the accident and became increasingly concerned about right shoulder pain. The mechanics of the accident were such that there could have been a direct trauma to the right shoulder. Between the accident and the January 2006 complaint to Dr Williams, the plaintiff did not work and was disabled by other conditions. Since January 2006 he has complained about the right shoulder. He has undergone surgery on the right shoulder and he continues to undertake physiotherapy. The six-week delay in complaining of pain is understandable, as the plaintiff would have been most concerned about the closed head injury.

30 DMG contends that any right shoulder disability is not significant and is largely attributable to an underlying condition rather than the accident.

31 In 2007, the plaintiff was referred to Dr Dave in relation to chronic right shoulder pain. An MRI scan of the right shoulder showed an OS acromionale (a congenital condition that had become unstable due to direct injury), arthritic changes at the synchondrosis (junction), tendonitis and a type II SLAP lesion (detachment of the tendon of the biceps) as well as a previous fracture of the clavicle (unrelated to the accident). On 16 August 2008 Dr Dave undertook an arthroscopic repair of the SLAP lesion and anterior acromioplasty. In November 2008, Dr Dave referred to continuing complaints of restricted movement in the right shoulder as well as chronic neck and back problems (Exhibit 4). He advised Dr Williams that an MRI scan showed synchondrosis, degenerate acromionale, a SLAP lesion and evidence of impingement. He recommended arthroscopic debridement and repair of the SLAP lesion, but said that it was "highly unlikely that (the plaintiff) will be completely pain free, all that he will be able to return back to work even after such surgical undertaking". By April 2009 the shoulder condition had stabilised and the plaintiff had a full range of motion with pain at the end of the range. Dr Dave reported: "(The plaintiff) has had a significant injury to the shoulder to destabilise the synchondrosis of the OS acromionale and probably caused a dislocation of the shoulder. This subsequently relocated itself leaving behind a labral injury. … Prognosis is guarded. He is likely to have ongoing pain and restricted movements. Future open surgery for the shoulder may be required if his symptoms reappear." The plaintiff is reluctant to undertake further surgery because he believes that the right shoulder condition worsened after the first surgery."

32 In July 2008 (before any surgery) Dr Harrison undertook a medico legal assessment on behalf of the plaintiff. In relation to restricted movement in the shoulder, Dr Harrison noted "the validity of the restrictions in range of motion are in doubt". Based on the history given by the plaintiff and the MRI, Dr Harrison agreed that there was "a work-related component" to the Type II SLAP injury in the right shoulder and considered that the plaintiff "probably had a transient dislocation of the gleno-humeral joint in the mechanics of (the accident)". Dr Harrison said "the impairments affecting his … right upper extremity and right limb girdle and shoulder are substantially attributable to the mechanics of the accident on 15 December 2005."

33 In June 2009, Dr Rushworth, a consultant neurosurgeon, examined the plaintiff on behalf of DMG. He accepted that the plaintiff suffered "clearly orthopaedic" symptoms in the right shoulder but considered that the plaintiff's complaints were "considerably out of proportion to the apparent severity of the injuries (established by the medical material with which he was briefed)". He could identify no permanent impairment of the head or neck and suggested that psychological factors may be significant (Exhibit 6).

34 In June 2009, Dr Powell, who examined the plaintiff on behalf of DMG, noted inconsistencies in relation to range of motion of the neck and shoulder and concluded that the plaintiff was exaggerating the level and intensity of his symptoms. He considered that the plaintiff "exhibited a heightened pain response" and manifested " pain focused behaviour" (Exhibit 7). Despite labouring under the misconception that the plaintiff had not complained of right shoulder pain for a year after the accident, he accepted that the accident caused an injury to the right shoulder.

35 I am satisfied that the accident caused injury to the plaintiff's right shoulder. I accept the opinion of the plaintiff's treating orthopaedic specialist that there is pain and restricted movement in the right shoulder. The plaintiff may well genuinely believe that his right shoulder is severely incapacitated, but the medical evidence does not support more than moderate incapacity.

36 When the ambulance officers attended the scene of the accident, the plaintiff had a Glasgow Coma Scale of 13 and was confused as to time and place. In Westmead Hospital, the head injury was investigated. A CT scan of the brain on 19 December 2005 was within normal limits. In March 2006, the plaintiff saw Dr Griffith, a consultant neurologist. He was diagnosed as suffering from post-concussion syndrome with associated dizziness, insomnia and tiredness. In a medico legal report obtained for the plaintiff in June 2008, Dr Sutton, a consultant neurologist, agreed that the plaintiff had symptoms of a post concussion syndrome following a closed head injury.

37 The plaintiff gave evidence that he was "nervous" and preoccupied with his disabilities. He was easily upset and his relationship with family members had deteriorated. He no longer played boche and no longer enjoyed going to a club.

38 Soon after the accident, the plaintiff's general practitioner referred the plaintiff for psychological treatment. Since July 2006, he has been treated by a psychologist, Mr Whyte, for a pain disorder with "a depressed affect behaviours and cognitions" (last document in Exhibit A)". The plaintiff gave evidence that the treatment was beneficial. The only psychiatrist from whom a report was tendered was Dr Selwyn M. Smith, who examined the plaintiff in September 2008. I accept his evidence that the plaintiff is suffering from a cognitive disorder and a chronic adjustment disorder with depressed and anxious mood. Dr Selwyn Smith recommended a short course of psychiatric consultation and the introduction of an antidepressant and possibly a hypnotic medication, but was not optimistic that the plaintiff's condition would improve with treatment. Given the period of time for which the plaintiff has received psychological counselling, in my view Dr Selwyn Smith's pessimism is warranted.

39 I find that the accident gave rise to the following disabilities: (1) Closed head injury and postconcussion syndrome. There is no evidence that this condition causes significant ongoing impairment. (2) Cognitive disorder and chronic adjustment disorder with depressed and anxious mood. The condition may improve but substantial improvement is unlikely. The condition is impacting on the plaintiff's perception of his physical disabilities. The plaintiff's subjective perception of his limitations is influenced by the psychological disorders from which he suffers. (3) Pre-existing degenerative changes in the cervical spine were rendered symptomatic by the accident, causing tenderness in the cervical spine and some symptoms in the right arm. But for the accident, the symptoms would have emerged gradually over the years. The condition is permanent. However, I find that, once litigation has concluded, the plaintiff will probably focus less on his physical problems and he will be less disabled by a subjective experience of pain. (4) Right shoulder pain and some limitation of movement. The condition is permanent, but once litigation has concluded the plaintiff will probably focus less on this problem and he will be less disabled by a subjective experience of pain and restricted movement.

40 At the date of the accident, the plaintiff was a 53-year-old man who had worked full-time as a concretor for the preceding 15 years. Apart from the period after the QVB accident, the plaintiff had worked as a concretor since 1980. From 1999 to June 2005 he was self-employed. In some years, the business made a significant income. However, while he was self-employed, the plaintiff's net earnings were always poor. Between July and October 2005, the plaintiff did little work. On 31 October 2005 he began to work for Vamugo. In the seven weeks preceding the accident, the plaintiff earned an average income of $943 net per week. Vamugo voluntarily ceased trading on 18 January 2006.

41 Dr Dave, the plaintiff's treating orthopaedic specialist, stated that the plaintiff was unfit to return to work as a concretor but would be "fit to return to select the duties provided the neurosurgeon also clears him". The plaintiff was educated in Croatia to 15 years of age. His English is poor. Even if his education, language skills and experience were such that he could, in theory, attempt work other than the work of a concretor, his treating neurosurgeon, Associate Professor Sheridan, has not "cleared" him and considers that the plaintiff is permanently incapacitated for work. Dr Selwyn Smith stated that, from a psychiatric perspective, the prospects for the plaintiff re integrating into the workforce were poor. Dr Powell considered that the plaintiff could undertake light, varied work but conceded that, in view of the plaintiff's age, limited transferable skills and poor English, his employment opportunities were likely to be limited.

42 DMG submitted that the plaintiff would be capable of supervisory work. However, in light of the plaintiff's psychological problems, language difficulties, age and lack of experience in supervisory work, I consider that submission to be unrealistic.

43 Regardless of the accident, the plaintiff would have been out of work for a period from 18 January 2006. However, as the plaintiff was an experienced concretor, I infer that, following the demise of Vamugo, he would have had little difficulty in finding other work.

44 The plaintiff claims a loss of earnings of $750 net per week (or $943 net per week per the plaintiff's amended schedule of damages) from the date of the accident to 68 years of age. Allowing for periods that he may have been out of work, I find that the plaintiff probably would have earned an average of $750 net per week. However, the plaintiff would not have worked until 68 years of age. The work of a concretor is heavy work. The plaintiff's underlying degenerative changes would have manifested themselves at some stage. I accept that the plaintiff may have wished to work until 65 years of age or beyond, but taking into account the heavy nature of concreting work and the plaintiff's pre-existing degenerative condition, I find that, but for the injury, the plaintiff's most likely future circumstances were that he would have worked to about 62 years of age. I discount the award for future economic loss by 15% for vicissitudes other than progressive degeneration of the spine.

45 DMG agrees with the plaintiff's mathematical calculations regarding the medical expenses associated with his right shoulder condition, counselling and pharmaceutical expenses, but disputes the plaintiff's entitlement to recover the expenses.

46 Although, by the plaintiff's own account, his treatment has been largely ineffective, it has been undertaken on medical advice. As the relevant injuries were caused by the accident, I find that the plaintiff's claim for past out-of-pocket expenses is reasonable.

47 Dr Selwyn Smith stated that the plaintiff may benefit from antidepressant or hypnotic medication (possibly for 12 months at $60 per month) and should attend a psychiatrist for at least eight to 10 sessions at a cost of $208 per visit.

48 Dr Dave, the plaintiff's treating orthopaedic specialist, referred to possible future surgery. The plaintiff is disinclined to undertake any further surgery because he perceives that earlier surgery had a deleterious impact. Nevertheless, future surgery remains a possibility.

49 Based on the amount paid to date, the plaintiff claims $1,500 pa for future medication over 28 years, the plaintiff's life expectancy. However, in my view, the plaintiff will perceive an improvement in his condition following the conclusion of litigation, and his need for medication will diminish.

50 There will be an ongoing need for general practitioner consultation, occasional physiotherapy and medication.

Damages 51 I award the following damages: 1 Non-economic loss (29% of most extreme case) $85,000 2 Past economic loss ($750 pw 15/12/05 - 4/3/10, 217 weeks) $162,750 3 Loss of superannuation contribution of 9% $14,648 4 Future Economic Loss (to 62 years, $750 x 189.6 x .85) 189.6 is 5% multiplier for 4 years $120,870 5 Loss of future superannuation contribution of 9% $10,878 Past out- of-pocket expense 6 $42,772 workers compensation insurer $47,413 $4,641 HIC 7 Future out-of-pocket expenses $15,000 8 Fox v Wood $10,648 $467,207

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Cases Cited (8)