Past economic loss
37 In 1988 the plaintiff commenced employment with McEwans Home Hardware as a storeman and salesman. He spent 80% of his time in the storeroom. In 1990 the plaintiff left his employment with McEwans to commence work with Wagga Blind and Awning as an installer subcontracting, full time, five days per week. In addition, during this period, he was working part time at Thomas Blamey Tavern as a barman two to three times per week approximately five hour shifts for 18 months.
38 In June 1992 the plaintiff commenced employment with Fred Clark Australia (FCA) as a storeman/clerk. FCA manufacturers stainless steel sinks, tubs etc. The plaintiff supervised the warehouse, took records of ingoing and outgoing stock, took orders, dealt with customers and drove a forklift. As a one man operation he had to undertake heavy work such as lifting tubs.
39 On 24 March 1994 the plaintiff commenced employment with Laminex Limited as a forklift operator/driver. Laminex produced medium density fibreboard. The plaintiff operated a Holzman saw to cut particle boards and drove a forklift to move and lift the boards. Prior to commencing employment a medical examination revealed that the plaintiff had a right inguinal hernia. In order to get the job with Laminex he underwent surgery to rectify this problem. In 1997 the plaintiff left his employment with Laminex after a disagreement with his supervisor.
40 For the year ended 30 June 1996 (while the plaintiff was employed by Laminex) the plaintiff earned $40,215 gross. This equates to $583 net per week. From 1 July 1996 until 23 April 1997 the plaintiff earned $32,996 gross. This equates to $590 net per week. While the plaintiff was employed by the defendant doing seasonal work he earned $943.50 net per week. Between the plaintiff's employment at Laminex and with the defendant there was an interval of seven months where the plaintiff was unemployed.
41 Dr Honner (report dated 24 December 1998) expressed the opinion that the plaintiff is now permanently unfit to return to the type of labouring work that he used to do, due to a 33% loss of use of the left arm below the elbow, and can now only carry out selected occasional light duties with his left hand. He was of the view that the plaintiff would be fit to carry out work as a security officer.
42 Luba Eikens, rehabilitation physician (reports dated 8 June 1999 and 7 June 2000) opined that the plaintiff was not fit to return to heavy manual labouring work, or work requiring bimanual precision. Dr Eikens thought that the plaintiff was fit to work as a salesman, as a security officer, as a console operator and to do other lighter duty work, that did not require bimanual dexterity, or heavy repetitive use of the left arm. She thought it would be advisable for the plaintiff not to work with heavy machinery. Jocelyn White, occupational therapist (report dated 10 June 1999) more accurately stated that the plaintiff would be fit for some aspects of work as a security officer but is now best suited to low impact tasks such as administrative work.
43 Ruth Erby physiotherapist in her report dated 8 October 2001 based on the results of her assessment opined that although there are limitations with the left hand and thumb functions the plaintiff is physically capable of performing his pre-injury work as a seasonal tractor driver. This may be so, provided he does not have ancillary labouring duties. She said that the plaintiff was also suitable for full-time work in sedentary and semi-sedentary positions with occasional light work demands, but repetitive fine motor tasks using the left hand should be restricted.
44 Dr Dickinson, in his report dated 30 July 1999, said that the 10-15% permanent disability in the plaintiff's left hand makes it likely that he will only be able to pursue careers requiring light use of this hand. In his report dated 22 February 2001, Dr Millons opined that there has been a clear loss of dexterity and strength in the plaintiff's left hand. He then stated that the plaintiff has had a good result from what was a potentially devastating injury, and that security work would certainly be within his capacity, as would light driving jobs or work as a forklift operator. Similar conclusions were reached by Dr Harvey (report dated 9 January 2001), who added that the plaintiff could perform a broad range of lighter work that did not involve powerful gripping with the left hand, and that driving a forklift was well within the plaintiff's capabilities. He felt that the plaintiff was capable of a 'little more' than security work. While the doctors are not specific as to precisely when the plaintiff was fit for light duties, it is generally expressed as the end of 1998.
46 In summary, the plaintiff prior to the accident had been in continual employment for about nine years, although between his period of employment with Laminex and the defendant he experienced seven months of unemployment. The plaintiff's employment prior to the accident involved manual work and some heavy labour.
47 In 1999 after some work experience as a security officer, the plaintiff obtained a seasonal security type job which involved asking drivers of trucks pulled up for inspection questions about fruit flies. This seasonal work lasted a few months and ended in October 1999. He let his security licence lapse. The plaintiff has not been in employment since the end of 1999. By the end of 1999 the plaintiff had had some work as a security officer. He was fit for light duties.
48 The plaintiff has recently moved to Sydney and has painted his uncle's house in exchange for board. He currently has the same arrangement with his cousin. He has difficulty climbing the ladder as his left hand gives way and he can only paint with his left hand, so he is unsuited for this type of work. He has sought employment in a Woolworths store, which would involve stacking shelves. He gave evidence that when that potential employer was informed that he was currently receiving worker's compensation payments he was not viewed as being an employable prospect. In any event, stacking shelves and moving heavy boxes is not work that the plaintiff can undertake due to his injured left hand.
49 It is my view that on the balance of probabilities the plaintiff would not have continued in seasonal work of the type on a long term basis even though it was financially rewarding. On the balance of probabilities, it is more likely than not that the plaintiff would have returned to work of the type he had performed at Laminex in 1997 in pre-accident years. His earnings from this type of job in 1998 was $590 net per week.
51 The plaintiff submitted that past economic loss should be calculated at $108,637 whereas the defendant allowed $63,385. The defendant allows $8,019 from the date of the accident, ie., 16 February 1998 up to 16 April 1998 which is the amount the plaintiff would have earned with the defendant had he not been injured and had completed the seasonal tomato harvesting. I allow this amount. From 16 April 1998 until 31 December 1998 the defendant accepts that the plaintiff was not fit for work and calculates loss at $600 net per week. It is my view that the plaintiff is entitled to compensation for this period and additionally for the period in which he was undergoing rehabilitation. In October 1999 the plaintiff completed the security course and obtained some employment in this area. I allow the sum of $612 per week being the average weekly earnings for this period. For the period 16 April 1998 to October 1999 the plaintiff's loss of earning capacity equates to the sum of $46,512. The plaintiff has earned the amount of $1,694 which has to be deducted from the amount awarded. The amount of loss of earnings for the period 16 April 1998 to October 1999 is $44,818.
52 From 1 October 1999 to date the plaintiff submitted that he is entitled to the sum of $450 per week. The defendant allowed $200 per week loss of earning capacity. While the plaintiff gave evidence that his heroin addiction did not prevent him working, it is my view that since 1 October 1999 to date the plaintiff has not made genuine efforts to find work due to two main factors, firstly, his disintegrating family life, and secondly, the injury to his left hand. He is intelligent and capable of more retraining, and not just by limiting himself to security type work. He has expressed an interest in computing. However, I accept that the injuries to his left hand will affect his ability in this field of endeavour. By October 1999 the plaintiff had stopped taking heroin. The plaintiff was undergoing the methadone program but that ceased in March 2000. I accept that the plaintiff's domestic life has stabilised, however not in a way that gives the plaintiff much joy. From October 1999 to the date of hearing I assess the plaintiff's residual capacity at $250 net per week. This equates to 127 weeks @ $250 = $31,750. Total past economic loss = $76,568.
53 As at the date of trial, the plaintiff's problems in his domestic situation and prior drug problems had abated. I accept that the plaintiff's domestic life has stabilised, however not in a way that gives the plaintiff much joy. The loss of his earning capacity from this date continuing to retirement age is attributable solely to his injuries to his left hand that were sustained in the accident. I assess the plaintiff's future economic loss of earning capacity at 40% of $680 net per week. This equates to the sum of $272 net per week x 845 =$229,840 less 15% for vicissitudes equals $195,364.
Loss of contributions on past and future superannuation
54 This is assessed at 9% of total past economic loss, namely $76,568 x 9% = $6,891.12. Loss of contributions on future superannuation is equivalent to $17,582.76. Total loss of superannuation contributions equals $24,473.88.
Past domestic assistance
55 The parties agree that the amount allowable for past domestic assistance is $6,616. No claim is made for future domestic assistance.
Less workers compensation payments made
56 The amount of weekly payments which have been made and need to be repaid have been agreed at $123,473.56.