Fuller v Avichem Pty Ltd trading as Adkins Building & Hardware Supplies

District Court of NSW|2018-11-21

Introduction

The plaintiff brings a claim for work injury damages against the defendant.
On 11 August 2009 the plaintiff was employed by the defendant as a shop assistant in a hardware store in Broken Hill. It is common ground that during the course of his work on that day the plaintiff suffered injuries to his back and left shoulder as a result of lifting six of medium density fibre (MDF) sheets onto a customer's vehicle. It was also common ground that the plaintiff suffers from more than a 15% whole person impairment enabling him to bring a claim for work injury damages.
The plaintiff alleges that in removing the MDF sheets from the rack in which they were stored that he was required to lift them over pallets of material that were positioned in front of the rack. In the process, the plaintiff felt pain in his lower back, mid back and left shoulder, which persisted when he lifted each MDF sheet overhead onto the roof rack of the customer's vehicle. Each MDF sheet measured 1200mm x 2400mm x 16mm (thick) and weighed about 33kgs.
The defendant denies that it breached the duty of care owed to the plaintiff and says that the plaintiff is guilty of contributory negligence.
If successful in establishing negligence, the plaintiff is entitled to damages for economic loss. The plaintiff has not returned to work and alleges that he has no residual earning capacity as a result of his injuries and disabilities. The defendant contends that the plaintiff is fit for work or alternatively has some residual earning capacity.

Ms Owen's evidence

The defendant relied on an Earnings Capacity Report dated 24 August 2018 prepared by Ms Amber Owen, a clinical psychologist. Ms Owen was required for cross-examination.
Ms Owen had access to the medical reports relating to the plaintiff and his work history. She then administered a series of psychometric tests to determine the plaintiff's aptitude for various skills. She then compiled a list of appropriate jobs for the plaintiff based on his skills and restrictions. She then researched similar roles advertised on various job-seeker websites.
Ms Owen identified six positions for which the plaintiff was suited, being: 1. Customer Service Call Centre Operator; 2. Department Manager; 3. Sports Club/Facility Manager; 4. Gaming Manager; 5. Event Co-ordinator; 6. Store manager.
Ms Owen noted Dr Young's recommendation that the plaintiff participate in a multi-disciplinary pain management program to increase his capacity. Ms Owen supported this recommendation. Further, Ms Owen recommended that the plaintiff participate in vocational counselling to develop and enhance his job-seeking skills.
Ms Owen was subjected to a thorough and skilful cross-examination relating predominantly to the physical and mental disabilities that are outlined in the medical reports. In my view, Ms Owen's evidence was unshaken. For most of the challenges she could identify where the particular restriction was taken into account in her report. I was impressed by her as a witness, by reference to what she said and her demeanour at the time of giving her evidence.

Mr Chapman's evidence

The defendant called Mr Chapman to give evidence and he was cross-examined.
Mr Chapman and his wife were directors of the company that operated the defendant's business for the past 28 years.
The plaintiff was employed as a sales assistant in June 2007. Mr Chapman employed the plaintiff and inducted him into the job. The induction consisted of showing him around where different products were stored or displayed and what they were used for. Mr Chapman showed the plaintiff how to lift bags of cement and how to use some of the saws for cutting timber.
Mr Chapman did not recall saying anything to the plaintiff about how to lift MDF sheets. He did show the plaintiff that you could pull the MDF sheets across the floor. Mr Chapman could not recall telling the plaintiff anything about asking for assistance with lifting the MDF sheets.
Mr Chapman described the shed as being 3100mm from the end of the rack where the MDF sheets were stored to the sliding door. The rack was a bit more than 2400mm deep.
Mr Chapman gave evidence that the plaintiff had told him on 8 August 2009 that he was cleaning up in the shed area. Mr Chapman gave evidence that two pallets would not fit in front of the rack. One pallet made it hard to drag the sheets out, but it was possible. A standard pallet was 1200mm by 1200mm, a half pallet was 600mm by 1200mm and various items came on bespoke pallets of varying measurements according to the product it was designed to carry. From the floor to the bottom of the rack was 1275mm.
Mr Chapman suspected the plaintiff of stealing money and considered that he had no prospects of promotion. Mr Chapman thought that the materials depicted in the photograph of the shed were from a training night that had been conducted by a sales representative after hours at the store.
In cross-examination, Mr Chapman did not think that it was possible to lift the MDF sheets up and over a pallet if it had been left in front of the rack, because you could not lift it high enough.
In re-examination Mr Chapman explained that there was only 75mm clearance on the rack and a standard pallet was 120mm high.
I accept that Mr Chapman was trying to do his best to give honest evidence. I generally accept his evidence, except as to his assertion that the plaintiff's actions in removing the MDF sheets from the shed were impossible, for the reasons that follow.

Breach of duty

The defendant owed the plaintiff a non-delegable duty of care to provide a safe system of work. An employer must take reasonable care to avoid exposing an employee to an unnecessary risk of injury. The employer must take reasonable care to devise a method of operation for the performance of a task that eliminates the risk or provides adequate safeguards. The employer must take into account thoughtlessness, inadvertence or carelessness particularly in the case of repetitive work: Czatyrko v Edith Cowan University (2005) 214 ALR 839 at [12].
In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J stated: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man is response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.
The defendant's primary submission was that the plaintiff's case depended on the acceptance of his evidence and that because he was an unreliable witness that I could not be satisfied on the balance of probabilities that the defendant breached the duty of care that it owed to the plaintiff.
Taking into account all of the evidence, the plaintiff's evidence as to the circumstances in which his injury occurred should be accepted, for the reasons that follow.
The defendant's attack on the plaintiff's credit was not as effective as the submissions for the defendant convey. I am not satisfied that the plaintiff's first statement conveyed that he would lift MDF sheets of the kind involved in the incident, with the assistance of another person. The first statement was capable of conveying that there were two people to move these MDF sheets, being the yard workers Mr Stacey and Mr Fulton. My reading of his answers in his evidence-in-chief and cross-examination is consistent with this finding. I am satisfied that the plaintiff's evidence was consistent on this topic.
I am satisfied that the histories given to Dr Rolleston, Dr Osti and/or Dr Waters were consistent with the plaintiff's evidence. The defendant submitted that the history given to those doctors and in the claim form to the insurer was consistent with his injury occurring during the course of lifting the MDF sheets onto Mr William's vehicle, and that because the plaintiff had assistance at that point in time that there was no breach of duty.
The plaintiff did not dispute the histories given to the doctors. In cross-examination, the plaintiff gave evidence that he believed that he was injured when he was manoeuvring the first MDF sheet out of the rack. In my view, the history given to the doctors and in the claim form was an appropriate and adequate description of what occurred and not inconsistent in the way suggested by the defendant.
The presence of the obstacles in front of the rack was included in the plaintiff's first statement dated 27 March 2014, which was made with the assistance of his solicitor. It is possible that the plaintiff did not appreciate the significance of the presence of the obstacles until making that statement. It was not put to the plaintiff that the obstacles were not present or that he was not telling the truth on this point. The photograph of the presentation of the shed some years later was corroborative of the plaintiff's evidence.
Mr Chapman did not contradict the plaintiff's evidence on this point. Mr Chapman was not asked if the photograph was a true depiction of the presentation of the shed on occasions or at all and in particular whether materials on pallets were at times stored in front of the rack. In this respect the defendant failed to ask questions of Mr Chapman that were within his knowledge and I would infer that his testimony on this topic would not have assisted the defendant: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9 per Handley JA (Kirby P agreeing).
I am satisfied that the plaintiff's evidence about the way he was required to remove the MDF sheets from the rack was plausible. The defendant submitted that it was impossible for the plaintiff to have pulled an MDF sheet out 900mm from the rack and then to have lifted it 400-500mm off the ground, because the rack was 1275mm high and at the time when the vertical lift was commenced, there was still 1500mm of the sheet in the rack. The defendant's submission depends on taking the measurements estimated by the plaintiff to be absolute, which they were not. The plaintiff's evidence was that there may have been two pallets in front of the rack or one full pallet and one half pallet. A standard pallet was 1200mm by 1200mm and 120mm high and a half pallet was 600mm by 1200mm and 120mm high. It was also possible that one of the pallets could have been a custom made pallet of unknown dimensions. Mr Chapman gave evidence that the distance between the end of the rack and the sliding door was 3100mm. If there were two standard pallets side by side in front of the rack there was a clearance of about 700mm, before the lift could commence. If one of the pallets was a half pallet the clearance was about 1300mm. The plaintiff gave evidence that the pallets had broken materials, buckets and some concrete mix on them. I am satisfied on the evidence that the plaintiff did not have to lift the MDF sheets over all of the material on the pallets and it is unlikely that he had to lift the sheets 400-500mm off the ground. In my view it was more likely that he had to lift the MDF sheets 130-200mm off the ground to clear the pallets and to negotiate the MDF sheet through the material on the pallets. I am satisfied that one of the pallets was a non-standard pallet and accordingly there was a clearance of about 1300mm or more from the front of the rack, before the plaintiff was required to lift the MDF sheet vertically.
The defendant submitted that it was unlikely that the plaintiff could have continued working if he experienced the pain he gave evidence of following the incident, or at least it would have caused him to report the injury on the day. The first point to note is that this submission is inconsistent with the defendant's concession that it accepted that the plaintiff did receive an injury on 11 August 2009. Having carefully reviewed the medical histories, it is apparent that the plaintiff developed his symptoms over a period of a few weeks. He gave evidence that each symptom was apparent on 11 August 2009 during the process of opening the sliding door, removing the MDF sheets from the shed and loading of them onto the vehicle. I do not accept that part of his evidence. Dr Rolleston's notes support the conclusion that the plaintiff's symptoms developed in the period between 13 August 2009 and 24 September 2009. Those symptoms were corroborated by objective medical findings of a broad disc bulge at L4-5 in the CT scan performed on 29 August 2009 and the full thickness tear of the supraspinatus tendon in his left shoulder in the ultrasound performed on or about 24 September 2009.
I do not accept that the plaintiff gave a misleading or dishonest answer on his claim form dated 1 September 2009. The plaintiff described his injury sustained on 11 August 2009 as 'Back/mid, groin pain and buttock sciatica'. The claim form then asked 'Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?' to which the plaintiff answered 'No'. The plaintiff had previously had a personal injury claim for a motor vehicle accident in which he received an injury to his lower back at L5-S1. The plaintiff also made reference in the claim form and the letter accompanying it to the 'upper part of my back' and 'middle part of my back'. I am satisfied that was a reasonable description of his injury at the time of completion of the claim form and drafting the letter. The medical evidence supports his assertion that the injury occurred other than at the site of his prior injury. Whilst a lawyer may give the phrase 'relates to' a wide meaning, the question asked in the claim form is capable of being understood as the plaintiff gave evidence that he understood it to mean, that is the same injury.
The balance of the credit challenges related to histories given on minor aspects of the plaintiff's medication, his presentation to Dr Kapur, his mental acuity to undertake his tertiary studies and his ability to undertake some of the jobs that he applied for. Overall, I am not persuaded that any of these matters alone or in combination are sufficient for me to reject the plaintiff's evidence on liability. I will return to some of these matters when considering the plaintiff's earning capacity.
It is fair to say that the plaintiff was a poor witness. In course of giving evidence he was on some occasions evasive and argumentative. To at least some extent the plaintiff was an advocate for his own cause. However, on the liability issue his evidence was corroborated and/or not contradicted in a number of important respects that I have already referred to and on that basis I would make the following findings of fact: 1. The MDF sheets weighed approximately 33kgs each. 2. It was part of the plaintiff's duties to remove the MDF sheets from the rack and to load them onto the customer's vehicle. 3. The plaintiff had not previously attempted to or been required to move this type of MDF sheet. He was unaware of the weight of each sheet and had not been instructed on how to lift them. The Plaintiff had not been directed to use a two-man lift or to arrange for the use of mechanical means to lift the sheets. A forklift was available at the premises as a means of completing a mechanical lift of the MDF sheets. 4. There was no other employee available at the store at the time, capable of assisting the plaintiff with a two-man lift. 5. There were pallets stored in front of the rack where the MDF sheets were stored. There was broken material, buckets and some concrete mix stored on the pallets in front of the rack. 6. In the course of moving the MDF sheets out of the shed and lifting them onto the customer's vehicle the plaintiff received injuries being a disc injury at L4-5 of his spine and a full thickness tear of his supraspinatus tendon in his left shoulder.
The risk of injury to the plaintiff from the manual handling of items sold at the store was obvious and known to the defendant. The plaintiff had been instructed to employ a two-man lift for any bag of cement weighing in excess of 20kg.
There were simple and inconvenient measures available to the defendant to eliminate or minimise the risk of injury. First, the defendant could have instructed the defendant to employ a two-man lift when lifting the MDF sheets or to use the mechanical means that were available. Second, the defendant could have ensured that the shed was free of obstacles that required the plaintiff to move the MDF sheets in a confined space.
The magnitude of the risk was significant, in that it could result in serious injury as it did in this case. The probability of the risk coming home was moderate.
Taking into account all of those matters, I am satisfied on the balance of probabilities that the defendant breached the duty of care that it owed to the plaintiff.

Causation

The defendant conceded that if the plaintiff established a breach of duty that causation would also be made out.

Contributory negligence

The defendant submitted that any award in favour of the plaintiff should be reduced for contributory negligence.
The making of an apportionment between a plaintiff and defendant for their respective shares in the responsibility for damage involves a comparison of both culpability and the relative importance of the acts of the parties in causing damage. The whole conduct of each negligent party in relation to the subject of the accident must be subjected to comparative examination: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 492 at 533.
A critical difference between the assessment of negligence and the assessment of contributory negligence is that the purpose of the latter assessment is to allow for an apportionment of responsibility for the injury by a reduction in the damages recoverable by the plaintiff to the extent that the Court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage: Council of the City of Greater Taree v Wells [2010] NSWCA 147 at [107] per Basten JA.
Contributory negligence differs from negligence. There is no duty owed to another person and contributory negligence involves conduct that exposes the actor to risk of injury without necessarily exposing others to risk. The standard of care in contributory negligence, like negligence, depends on foreseeability and is that of a reasonable person. The plaintiff is guilty of contributory negligence if he or she ought reasonably have foreseen that if he or she did not act as a reasonable person, that would that expose him or herself to a risk of injury: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570 per Mason J.
The defendant's departure from the standard of care of the reasonable employer was significant. The defendant had actual knowledge of the risk and there were simple and inexpensive means available to eliminate or minimise the risk. The defendant's culpability for the injuries sustained by the plaintiff was high. The defendant's omissions were a significant and important cause of the plaintiff's injuries.
By comparison, the plaintiff was attending to the duties that were expected of him by the defendant and he was focussed on that task. Whilst the plaintiff had received some manual handling training in 1985 with Big W, the content of that training was not explored in cross-examination. There is no evidence of what the plaintiff knew or ought to have known from receiving that training. The plaintiff knew that he had a prior back injury, but I accept his evidence that he was not suffering any adverse effects of that injury in August 2009 and that he was completing his usual duties with the defendant without difficulty. I accept that the removal and loading of the MDF sheets was an unusual task for the plaintiff and that he did not know how much the MDF sheets weighed before attempting to manoeuvre them out of the shed and load them. The pain that the plaintiff suffered at the time of the incident, whilst unusual, did not prevent him from continuing with the task at the time. I am not satisfied that the plaintiff failed to take reasonable care to avoid the risk of injury.
Taking into account all of those matters, I am not satisfied on the balance of probabilities that the plaintiff was guilty of contributory negligence.
If I am wrong on this conclusion, I would assess contributory negligence as 10%.

Damages

The only damages that may be awarded in this claim are damages for past economic loss and future economic loss by deprivation or impairment of earning capacity: section 151G Workers Compensation Act 1987.
There is very little dispute on the medical evidence. I have set out most of the opinions of the plaintiff's treating doctors and the medico-legal opinions at [25] to [68] above, which I will not repeat. The plaintiff suffered injuries to his left shoulder and spine that have each required surgery on a number of occasions. I am satisfied that there was a significant continuous period between the date of the incident and about August 2012 during which the plaintiff was receiving treatment for either his shoulder injury or his spine injury and during which time the conditions had not stabilised. The plaintiff continued to have injections in his lumbar spine to control the pain in 2013 and in about June 2017 suffered a second re-tear of his supraspinatus tendon. In 2018 the plaintiff consulted pain specialists, who both considered his continuing complaints of significant and debilitating back pain to be reasonable.
Since about August 2013, the plaintiff has suffered some depression as a result of the impact of his disabilities. This condition made him unfit to work between March 2014 and March 2016.
The defendant relied on one medico-legal report prepared by Dr Hugh English dated 12 November 2013. At the time of the consultation with Dr English, the plaintiff complained of ongoing back pain radiating into the right great trochanter and pubic region, intermittent numbness in the right thigh, right lateral calf and 3 toes on his right foot. The pain was constant and required the plaintiff to take strong pain medication. On examination, the plaintiff had restricted shoulder movement and lumbar spine movements. Dr English opined that the injuries to the plaintiff's shoulder and spine required surgery and were both related to and consistent with the plaintiff's description of how the injuries occurred in the course of his employment. Dr English opined that the plaintiff was fit for non-lifting work that allowed for a change of position between sitting and standing, including customer service if there was no manual handling of goods in excess of 5kg. Dr English was of the view that there was no treatment for the plaintiff's condition other than the continuation of analgesic medication. Dr English's opinion on the plaintiff's whole person impairment was not pressed.
The doctors all agree that the plaintiff is unfit for his pre-injury employment and that he is precluded from employment requiring lifting of more than 5kg in one hand, lifting more than 10kg in both hands, overhead lifting, bending, twisting or squatting and standing or sitting for extended periods, with a 30 minute limitation on driving.
The plaintiff tendered medical certificates prepared by his treating general practitioners. Those certificates indicate that he was unfit for any work from 11 August 2009 to 2 April 2012. On 2 April 2012 he was certified as fit for modified duties as described in Dr Osti's reports and set out in paragraph 43 above for the period 2 April 2012 to 25 October 2013. From 25 October 2013 to 6 December 2018 the plaintiff was certified as unfit to perform any work.
The plaintiff was assigned a rehabilitation provider by the workers compensation insurer. As part of that service the plaintiff was required to apply for 10 jobs per fortnight. The plaintiff tendered records relating to more than 400 positions he applied for on the 'Seek' website, in the relevant period. The plaintiff received two responses to his applications and was unsuccessful in getting employment.
It was accepted by the plaintiff in cross-examination that he believed that he was able to do the jobs that he applied for. On the basis of this acceptance, the defendant submitted that the plaintiff's evidence that he could not do these jobs now should be rejected. In my view, the requirement by the rehabilitation provider that the plaintiff apply for 10 positions per fortnight made it inevitable that the plaintiff would have to apply for positions for which he was unqualified to do or unable to do. For the reasons that follow, I have come to the conclusion that the plaintiff is capable of doing some work.

Past economic loss

As to the past, I am satisfied on the balance of probabilities that the plaintiff was completely incapacitated for work. Taking into account the plaintiff's varied employment history and the fact that he had a prior back injury, I find it is likely that the plaintiff would have continued working with the defendant. I find that it is unlikely that the defendant would have terminated him on the basis of a mere suspicion that he was stealing money.
The defendant submitted that that at the time of the incident the plaintiff was earning $600 per week nett, and that I should allow a 3% increase per annum to take into account CPI increases, giving the figures set out in the table below. Date Wage Net Per Week Number of Weeks Amount 30.6.10 $600 46 $27,600 30.6.11 $618 52 $32,126 30.6.12 $637 52 $33,100 30.6.13 $656 52 $34,093 30.6.14 $675 52 $35,115 30.6.15 $695 52 $36,170 30.6.16 $716 52 $37,254 30.6.17 $737 52 $38,372 21.11.18 $760 21 $15,960 Total 581 $289,800

At the time of the incident, the plaintiff and Mr Tumes were roughly earning comparable amounts, for the pay period 11 April 2009 to 17 April 2009 the plaintiff earned $731 per week gross ($622 nett) and Mr Tumes earned $741.00 per week gross ($626 nett). I am cognisant of the fact that Mr Tumes was Mr Chapman's son-in-law and that he may have been treated more favourably than the plaintiff. However, it is useful to test the figures suggested by the defendant by comparison to the figures I have for Mr Tumes, that are set out in the table below. Week ending (hours) Gross Nett Defendant's estimate figure for the plaintiff 02.07.2010 (43) $751.00 $646.00 $600.00 15.06.2012 (44) $1,145.00 $909.00 $637.00 03.04.2015 (52.5) $1,300.60 $1,020.60 $656.00 08.07.2016 (48.5) $1,274.39 $996.40 $716.00 07.07.2017 (57) $1,570.37 $1,189.35 $737.00 24.11.2017 (61.5) $1,920.25 $1,402.25 $737.00

In my view, this comparison demonstrates that the defendant's figures are too conservative.
The plaintiff submitted that he would have earned $600 per week nett until 2012 when he would have been promoted to manage the store and earned $800 nett per week from that time. In 2015 he would have returned to work as a car salesman in Adelaide or to work in a dairy and earned $1,000 per week nett.
I am not satisfied that the plaintiff would have been promoted to manage the store because of the likely progression of Mr Tumes, based on his relationship with Mr Chapman. However, it is apparent form the figures set out above that the plaintiff was likely to do better than a 3% increase per annum, in line with CPI. If the plaintiff had stayed in Broken Hill it is unlikely that he would have gone back to the jobs contended for by the plaintiff.
It is reasonable to allow a 5% increase each year and to start at the actual nett loss at the time of the incident. The figures are set out in the following table. Date Wage net per week Number of Weeks Amount 11.8.2009 -30.6.2010 $622 46 $28,612 1.7.2010 -30.6.2011 $653 52 $33,956 1.7.2011 - 30.6.2012 $686 52 $35,672 1.7.2012 - 30.6.2013 $720 52 $37,440 1.7.2013 - 30.6.2014 $756 52 $39,312 1.7.2014 - 30.6.2015 $794 52 $41,288 1.7.2015 - 30.6.2016 $834 52 $43,368 1.7.2016 - 30.6.2017 $875 52 $45,500 1.7.2017 - 30.6.2018 $919 52 $47,788 1.7.2018 - 4.3.2019 $965 35 $33,775 Total $386,711

The appropriate award for past economic loss is $386,711.
The plaintiff is entitled to loss of superannuation for the past at 11% of nett earnings. The appropriate award is $42,538.

Future economic loss

The plaintiff submitted that he should be compensated for the future on the basis of average weekly earnings. I do not accept that submission because the plaintiff had not demonstrated that level of earning capacity prior to the incident.
I have had regard to the evidence of Ms Owen. Her evidence is that the plaintiff is suited to certain types of employment with expected earnings of between $53,000 and $71,000 per annum gross. The average of those figures is $62,000 per annum gross or $1,192 per week gross ($943 nett). This figure coincides with the earlier calculation of past loss.
I am cognisant of the fact that the jobs suggested by Ms Owen are limited by the plaintiff's restrictions and that if he was unrestricted that he may have been capable of earning more in other types of jobs, for which he is now unfit.
Taking into account all of the evidence, I am of the view that the plaintiff had a total earning capacity at the time of trial of $1,000 per week nett.
I am satisfied that the plaintiff has some residual earning capacity. The plaintiff is an intelligent man and as recently as 2014 and 2015 completed further tertiary studies. In my view, he is able to work in a customer service position with no manual handling or in a gaming room or TAB or in a telephone-based customer service role, where he could sit or stand as required. The plaintiff has previously held a responsible conduct of gaming certificate and modern gaming operations do not involve the handling of coins.
It would be reasonable for the plaintiff to work eight hours a week, being two shifts of no more than four hours. On a 40 hour week this amounts to a residual earning capacity of $200 nett per week.
I have also considered the availability of this type of work and the chances of the plaintiff finding work. The plaintiff has had some difficulty in obtaining employment after making a considerable number of applications. He needs further support in the form of a structured rehabilitation program and education on applying for jobs. Overall, I am satisfied on the balance of probabilities that the plaintiff could find such work.
The residual weekly loss for the future is $800 per week, until the plaintiff reaches 67 years of age. The defendant submitted that I should apply a higher than normal discount for vicissitudes of 25% because of the plaintiff's prior injury and his work history. I am satisfied that this is an appropriate case to make a higher allowance.
The future economic loss award is $800 multiplied by 412.9 less 25% amounting to a loss of $247,740.
The plaintiff is also entitled to a loss of superannuation calculated at 11% of the net loss, being an award of $27,251.

Other matters

The plaintiff may be entitled to interest in accordance with section 151M Workers Compensation Act 1987. I will ask the parties to confer on this point to determine if they can reach agreement.
The parties agree that the Fox v Wood award is $35,507.
The defendant is entitled to credit for the amount of weekly payments already made to the plaintiff. There is some continuing disagreement on this figure. I will ask the parties to confer to see if agreement can be reached on this figure.
The plaintiff may be entitled to costs in accordance with clauses 94 and 95 Workers Compensation Regulation 2016. I will ask the parties to confer to see if agreement can be reached on this issue.

Orders

The orders I make are as follows: 1. Verdict for the plaintiff. 2. I grant leave to the parties to approach my Associate on or before 5pm on 19 March 2019 to file Short Minutes of Order in relation to the matters still in dispute or to list the matter for argument, after compliance with appropriate directions to serve Short Written Submissions.

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: 10 April 2019

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Judgment (16 paragraphs)

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Cases Cited (6)

Cited By (1)