Haralambopoulos v Longin

Damages Evidence concerning damages 44The plaintiff was born in 1958 and is now 52 years of age. He left school with his School Certificate at the age of 16. He and his wife were married in 1984. They have one daughter who is aged 23 and currently studying in the United States of America with the benefit of a tennis scholarship. 45The plaintiff was in good health prior to the accident. He used to play tennis and helped train his daughter. He was a talented snooker player, competing at national level. He also enjoyed fishing and golf. 46Upon leaving school, the plaintiff completed an apprenticeship as a fitter and turner at the Port Kembla steel works. He then worked in video stores for 3 or 4 years before entering the building industry in the early 1980's. Although he did not engage in any formal training, he acquired skills, including in computer aided design. His work in the 27 or 28 years before the accident involved him in providing clients with designs for small construction projects. He prepared costings and quotations for the construction of patios, atriums, conservatories and the like. 47The plaintiff traded through a company called Albion Way Pty Limited. The work was subcontracted by Sales Galore Pty Limited. His role was described as involving design, costings, estimation, sales and marketing. 48At the time of the accident, there was a proposal to expand the scope of work that was undertaken from "light weight construction" to "full construction", meaning domestic building work in the nature of building whole rooms and whole floor extensions. This was an initiative proposed by the plaintiff. He was to have performed the same role as he had previously, that is the preparation of designs, costings and quotations, but he has not been able to do so because of the effects of his injuries. Another man, Mr Alessio Sidoni, was engaged to perform what was to have been the plaintiff's role. 49Some time after the accident, a position was found for the plaintiff with Sales Galore Pty Limited which is, essentially, office work. It is not a full-time role but allows him to work at his own pace, taking breaks when required, and mostly from home. Mr Campbell SC, without being disrespectful, likened it to "working in (a) sheltered workshop provided to him by the good graces of Mr Capenecas" (14.4.11 at T25.22). The plaintiff said that his income had been reduced significantly, but that he does not have the training, skills and experience to do anything else. He also said that he is not one to "sit around doing nothing" and would work until at least the age of 67. Mr Capenecas confirmed there was no other work available that was suitable to the plaintiff's current abilities. Initially the salary paid was $500 per week which in about mid-2010 was increased to $750 per week. 50In a report of 30 January 2009, Dr Dragutinovich, clinical and consulting psychologist, set out the plaintiff's immediate reaction to the accident: When I looked down my [right] leg was going in the opposite way to my pants-line - the shock took over - it was surreal - it felt like a bad dream - then the client started screaming - panicking badly - she kept apologising - she called her husband - they rang an ambulance - I was injected with morphine - the SES had to lift me out - I felt confused - panicked - I had this pit in my stomach - I kept feeling like I was going back down - falling - I know it sounds silly but as I'm talking to you about it now I can still feel that feeling - it still comes [flashes] back when I think about it even when I don't want to think about it - it feels horrible. 51After recounting aspects of the treatment the plaintiff received, Dr Dragutinovich continued: Since then to date John has suffered constant pain in the right foot, across the right ankle, in the right tibia and right fibula and right knee which he, as a stoic man who regards himself as having a high pain threshold: 'you have no choice', describes as: 'bloody annoying but that's not the main problem - the main problem is the sharp, shooting pains up through my foot and to the knee - it brings tears to your eyes - unbearable pain which I get when I step with my foot [flat] down - I have to compensate by stepping down [with a rolling motion] on the right side of my foot with my right toe sticking up - I still get the pains - it's bad but not as bad as when I step normally which I don't do anymore - I'm trying to but I can't because it hurts so much - the worst is steps - worse when I'm going down steps - when I'm going up [steps] I can pull my leg up - when going down the shooting pain is unbelievable - I can't walk properly along uneven ground. 52I interpolate that the reference to the plaintiff as a "stoic man" is consistent with the impression I formed when listening to his evidence in the trial. 53Dr Dragutinovich reported that although the plaintiff did not claim to be suffering "accident related mood and affect disturbance", he did concede that his wife and former work mates consider that he now becomes easily frustrated, irritable and angry. He found it boring to be doing nothing in comparison to his previous active lifestyle. He ruminated about the accident and the dramatic changes it had caused to his life. He had not been able to return to his job and this has had a significant effect upon his income earning capacity and, in turn I have no doubt, his pride and self-esteem. There has been impact upon his capacity to socialise. He is no longer able to enjoy rock fishing, competitive snooker, tennis and golf. He told Dr Dragutinovich, "(W)hen you can't work and can't socialise there's not much to do except sit on your bum and eat and drink" . 54Although the plaintiff denied that he was depressed, Dr Dragutinovich's administration of the Beck Depression Inventory-2 evaluated his depression at the time of testing (30 January 2009) as being in the "moderate category". 55The plaintiff endorsed a number of items in the inventory which are of note: feeling sad much of the time; feeling more discouraged about the future; getting very little pleasure from the things he used to enjoy; feeling like he was being punished; experiencing a loss of confidence; being restless or agitated; being less interested in other people or things; not considering himself to be as worthwhile and useful as before; not having enough energy to do very much; sleeping a lot less; being more irritable; not being able to concentrate as well as before; being too tired or fatigued to do things he did before; and being much less interested in sex. 56Dr Lorraine Jones, a consultant in rehabilitation medicine, provided a report of 28 March 2009. Mr Campbell specifically referred me to her opinion that the plaintiff "has had a very severe knee injury" and " will develop severe osteoarthritis in his knee and will require a knee replacement in the future" (Mr Campbell emphasised the "will"). Dr Jones confirmed that the plaintiff was not fit for his pre-injury occupation. It was her opinion that impairments to the plaintiff's knee, foot and various toes, and his sensory impairment combine to give a 19 per cent whole person impairment. 57Ms Sophie Hogg, occupational therapist, provided in her report of 12 May 2009 the history she received from the plaintiff of his experiences following discharge from hospital after three weeks as an inpatient. He had a full range of motion brace on his right leg and was using crutches and a manual wheelchair for mobility. He was advised to avoid weight bearing on his injured leg for three months. 58For the first four months he slept downstairs in a recliner chair, sponge bathed at the kitchen sink and used the downstairs toilet and basin for personal hygiene and grooming tasks. His wife was the primary care giver aside from an initial two weeks of daily visits by a community nurse for wound care. 59The leg brace was removed after a couple of weeks and he was advised he could begin weight bearing, insofar as he could tolerate it, on 13 June 2008. By that stage he was undergoing physiotherapy and hydrotherapy. 60In her assessment in May 2009, Ms Hogg observed the plaintiff to have a limp, but did not require any walking aid. He told her that he was managing steps with difficulty but had resumed sleeping and bathing upstairs. He was still undergoing physiotherapy and physical therapy. He experienced significant levels of pain, worse on weight bearing, as well as occasional rapid swelling in his right lower limb when aggravated. He had been told in his most recent review with his trauma specialist, Dr Walker, that he should persist for another three months, but if there was still no improvement in pain levels he would be considered for referral to a neurologist. 61Ms Hogg set out the various symptoms the plaintiff reported at the time of her assessment. They include significant pain in his right lower limb as well as weakness and reduced stability. He reported that a difficulty with his right shoulder previously experienced had fully recovered by the time of seeing Ms Hogg. (This aspect of the history, Mr Campbell submitted, supported the proposition that the plaintiff was not exaggerating or malingering (14.4.11 at T27.15)). The other major symptom of note is that the plaintiff reported that his back injury was becoming progressively worse and that he, by that stage, experienced chronic lower back pain. 62Ms Hogg's report includes an extensive survey of the various respects in which the plaintiff's physical abilities have been affected so as to impair or disable his participation in everyday living, social and sporting activities. Suffice to say the report includes that the plaintiff's "injuries have significantly impacted on his capacity to manage all ADLs, inclusive of personal care, domestic duties, home maintenance, driving and leisure" . 63Dr Richard Walker, orthopaedic surgeon, has managed the treatment of the plaintiff since he was admitted to Sydney South West Private Hospital four days after the accident. There were multiple consultations since that time. Dr Walker described the plaintiff's injuries as: 1.Intraarticular bicondylar right tibial plateau fracture with displacement. 2.Compartment syndrome right leg. 3.Fracture of the right medial cuneiform bone with subluxation of the first metatarsal cuneiform joint. 64Dr Walker performed an open reduction and internal fixation of the right proximal tibia fracture and a repair of the medial meniscus. Fasciotomy wounds were closed and an external fixator was removed. 65A subsequent operation on 17 April 2008 involved an open reduction and internal fixation of foot injuries. 66At the time of the last of the consultations with Dr Walker on 18 August 2009, the plaintiff had experienced no real change in his symptoms for some months. He experienced ongoing pain in the knee and ankle and generalised weakness in the leg. He reported occasional episodes of the knee giving way. 67Dr Walker's report includes an account of the various ways in which the plaintiff's domestic, work, social and sporting life has been affected. It is consistent with what has been reported by others. Dr Walker made an assessment of 19 per cent whole person impairment. 68In a subsequent report dated 28 January 2011, Dr Walker indicated that the plaintiff had not previously mentioned back pain to him, but he allowed for it being a possible result from altered gait patterns. I note that it is stated in the report of the defendant's orthopaedic surgeon, Dr Roger Rowe, that "the diagnosis in regard to the back is probable postural aggravation of degenerate change associated with age. This aggravation is probably the result of strain associated with the fall and also the ongoing limp resulting from the injured right leg" . 69Dr Peter Sherell, the plaintiff's general practitioner, noted in his report of 17 November 2009 that the plaintiff experienced the following symptoms: reactive depression; restricted social and sporting activities due to his leg injuries, with painful giving way sensation in his right ankle and foot; right knee swelling with limited flexion; right ankle swelling with poor ankle movement; reduced peripheral pulses on the right leg with apparent right leg shortening; and general hypersensitivity in the right lower leg and foot 70Dr Sherell also noted that the plaintiff is permanently unsuited to resume his former employment; he was restricted to lifting of 8kg and less; and he is unsuited for prolonged standing, walking and sitting in the one position. 71Dr Klaas Akkerman, psychiatrist, provided a report which was tendered on behalf of the defendant. He is somewhat critical of the DSM-IV (TR) diagnoses of post-traumatic stress disorder and chronic pain disorder made by Dr Dragutinovich. Dr Dragutinovich and Dr Akkerman subsequently conferred and produced a joint report. They remained largely in disagreement. Mr Campbell pointed out, however, that the plaintiff is not claiming for psychiatric injury (14.4.11 at T30.13). Accordingly, this matter of dispute may be put aside. 72The report of Dr Rowe is dated 27 May 2010. It raises no significant matters of dispute with the first report by Dr Walker. Dr Rowe agreed that the plaintiff was permanently unfit to resume his pre-injury employment. His conclusions include that the plaintiff's "ability to lead a normal life has been significantly impaired by the accident" . 73Drs Rowe and Jones prepared a joint report following a discussion between them on 31 January 2011. They agreed as to the disabilities the plaintiff experienced as a consequence of his injuries which had been set out in their individual reports. They agreed that such disabilities were permanent. They were also in agreement that the plaintiff would likely require a total right knee replacement in the future. Dr Walker was of the opinion that there was a possibility that such replacement may need subsequent revision. Drs Rowe and Jones accepted that this was a possibility, but did not regard it as a probability. 74The plaintiff's oral evidence included that for the first three months after his return home from hospital he did nothing. He and his wife lived in a two storey townhouse. The bedrooms and bathrooms were upstairs whilst the living areas, kitchen, and a toilet were downstairs. He confirmed that he slept on a recliner chair downstairs because he could not use stairs whilst dependent upon crutches. He used the downstairs toilet and bathed in the kitchen. He spent his days watching television while his wife was at work (T26-27). 75Two crutches were used for the first eight or nine months. The plaintiff was then able to manage on one crutch for the next three or four months. He then progressed to a walking stick. He had been advised to try not using it in order to maintain some strength but there were still occasions when he found it necessary.

Non-economic loss 76It was submitted on behalf of the plaintiff that an assessment in the range of 45 to 50 per cent of a most extreme case should be made. Specifically, Mr Campbell submitted that "a figure of 40 per cent would be unthinkable, a figure of 45 per cent would be conservative and a figure of 50 per cent would be about the mark" (14.4.11 at T31.1). This is to be contrasted with the submission of Mr Priestley on behalf of the defendant that "33 per cent, a third of a worst case of a man his age reflects the seriousness of his injury. Anything much more would be outside the range" (14.4.11 at T4.30). 77The plaintiff confirmed the various changes and limitations in domestic, social and sporting activities that are well set out in the reports. It became abundantly clear when listening to his evidence that his self-esteem and general enjoyment of life has been significantly impacted. This is overlaid by virtually constant pain. His stoicism is exemplified by his reticence in using pain relieving medication. 78The foregoing review of the medical evidence indicates that, aside from psychiatric injury which is not part of the plaintiff's claim, there is little that is in dispute. The plaintiff has endured considerable pain and suffering, particularly in the first year or so following the accident. This has reduced but the present level is not likely to abate any further. His ability to undertake many activities, domestic, work, social and sporting, has been significantly impacted. 79I am satisfied that an assessment of 45 per cent of a most extreme case is appropriate. With the amount currently declared for the purposes of s 16(2) of the Civil Liability Act being $500,500, that yields an award of $225,000.

Past out of pocket expenses 80The parties agree on an amount of $52,043.89.

Future treatment 81The plaintiff sought an amount for future consultations with his general practitioner. There is reference in Dr Walker's report of 1 September 2009 to the plaintiff likely requiring analgesic and anti-inflammatory medications and, for this reason, needing to see his general practitioner every month or two for repeat prescriptions. However, I note that the plaintiff gave evidence that he was no longer taking medication and that this was his preference (T37). Despite this, I accept, as did counsel for the defendants, that there will be a need for future general practitioner consultations. 82A claim is made in respect of a need for future surgery. Dr Walker said in his first report that further surgery is "likely". It was his view, in September 2009, that as the plaintiff's symptoms had not by that time improved, "it would be reasonable to consider arthroscopic examination of the knee and removal of all his hardware". He estimates a cost in the range of $8,000 to $10,000 for this. 83Dr Walker also reported in September 2009 that "if" the plaintiff developed post traumatic osteoarthritis of the knee requiring total knee arthroplasty, further hospitalisation would be required. He assessed the cost of such an admission as being in the order of $25,000 to $30,000 with an additional need for ongoing post-operative physiotherapy. Further, given the plaintiff's age, Dr Walker considered that he would likely require revision surgery at a cost of $30,000 to $35,000, depending on the implants required. 84In his subsequent report of 28 January 2011, Dr Walker referred to the need for total knee arthroplasty if the plaintiff was to develop post traumatic osteoarthritis as a "possibility", and reiterated that revision surgery some years later "may" be required. However, he then opined that the chances of the plaintiff developing significant post traumatic osteoarthritis over the next 5 to 20 years were "highly probable". He updated his assessment of costs: $7,000 to $10,000 for the removal of hardware and arthroscopy of the knee; $30,000 for the knee arthroplasty; and $45,000 for revision of the knee arthroplasty. 85Dr Jones put the matter of future surgery more strongly: "He will develop severe osteoarthritis in his knee and will require a knee replacement in the future" . Her estimate of the cost of the knee replacement, in her report of 28 March 2009, was $20,000. 86Dr Rowe regarded it as "more probable than not" that the plaintiff will experience premature and significant arthritic change in his knee over the next five to ten years. He estimated the total cost of a total knee replacement as being in the order of $25,000. 87In their joint report, Drs Rowe and Jones expressed the view that a total right knee replacement in later life was "likely" . They referred to Dr Walker's view that subsequent revision may be needed and agreed that, although this was a possibility, it was not really a probability. 88For the plaintiff it was submitted that a sum of $41,775 should be awarded for future treatment, whereas the submission for the defendant was that "a reasonable figure ... might be in the order of $35,000". Precise calculation of an appropriate amount not being possible, I propose to allow $40,000. Past domestic assistance 89There was a substantial dispute as to the amount that should be awarded for past domestic assistance. 90The plaintiff's evidence was that his wife did everything for him for the first three months following his discharge from hospital, during which time he was virtually confined to the recliner chair downstairs. He had very limited mobility for the balance of the first nine months after the accident when he needed to use two crutches and his wife continued during that time to do everything for him. 91Mrs Haralambopoulos was asked how many hours per week the plaintiff contributed to domestic and gardening chores before the accident. In her evidence in chief, she said "I don't know, about 20, 30 hours; 20 hours" (T65.31). In cross-examination, she agreed that she had not given that answer much thought. At the end of her evidence she said, "Per week? I don't know, about 10, 12, maybe" (T68.29). 92As to what he did after the accident, she said in chief, "Now? Actually nothing" (T65.27). In cross-examination, she indicated that he performed some minor tasks such as dusting his computer, cleaning up after himself in the kitchen and occasional cooking (T66-67). 93Ms Haralambopoulos experienced a serious back injury following a car accident in 1978 which restricted her ability to perform "the heavier parts of the housework and that sort of thing" (T63). She nominated cleaning the bathroom, carrying washing, vacuuming and carrying shopping as examples of tasks the plaintiff performed because she could not (T64). Since the accident they have paid for somebody to come in to assist with housework "about every five, six weeks" (T65). 94The plaintiff said that the domestic cleaning service came to the house "about every six weeks" and it cost "$400 and something" each time, he thought. He had also paid for someone to attend to mowing lawns and household maintenance tasks. Each of these costs was met by workers compensation up until about February 2010 (T41). 95The plaintiff's claim is for $36,000 (40 hours per week for 40 weeks at an average of $900 per week) and $33,000 (12 hours per week for 110 weeks at approximately $300 per week, this being part commercial and part gratuitous assistance); a total of $69,000. 96On behalf of the defendants it was conceded that domestic assistance of, perhaps, 10 hours per week may have been necessary for the first 9 months after the accident whilst the plaintiff was on two crutches. 97I do not accept the estimate by Ms Haralambopoulos that her husband was performing 10 to 12 hours of domestic chores per week before his accident. It had all the hallmarks of an off the cuff guess. In any event, it is at best only a partial guide to the gratuitous attendant care services provided since the accident. 98With the plaintiff being virtually helpless in the first nine months, I would assess the amount of additional work and care provided by Mrs Haralambopoulos at an average of 3 hours per day or 21 hours per week. 99The subsequent period to the date of judgment is in the order of 131 weeks. Ms Haralambopoulos' provision of gratuitous attendant care services has continued but there has been less need as the plaintiff acquired some improvement in mobility. That improvement was likely in the early part of this period before it plateaued at the level of restriction that now persists. Seven hours per week is, in my view, a reasonable average. 100I will leave it to the parties to calculate an appropriate figure in accordance with s 15(5) of the Civil Liability Act . 101I accept the plaintiff's evidence that he has had to pay for commercial domestic assistance since about February 2010, and that it cost about $400 for each six weekly service. Again, I will leave it to the parties to agree on a calculation to the time of judgment. Future domestic assistance 102It was submitted that there was a need for commercial domestic assistance in the order of 3.5 hours per week; handyman, gardening, lawn and maintenance assistance of 2.5 hours per week; and a shopping home delivery service at $20 per week. The submission relied upon the recommendations in the report of the occupational therapist. The total award sought in relation to this category was $263,127.25. 103Mr Priestley submitted that one hour per week was appropriate. Reference was made to the joint report of Dr Rowe and Dr Jones in which it was said to be reasonable that the plaintiff have domestic assistance in regard to lawn mowing and garden maintenance and that he may also require assistance for any heavy work or work around the house requiring kneeling or squatting. 104There was some controversy about the extent to which the plaintiff and his wife had engaged external services to assist with tasks around the house. To date, this has been done at a low order of frequency but that is not a useful guide as to what is actually required. The frequency with which there has been recourse to such services has been driven not so much by need but by cost. 105In my view, the joint report understates the position and fails to acknowledge the contribution that the plaintiff formerly made in terms of household cleaning and related chores that his wife either could not perform or found difficult because of her back complaint. Two hours per week appears to be a reasonable amount to allow for domestic assistance. 106The need for handyman, gardening, lawn and maintenance assistance is something that would fluctuate. The plaintiff lives with his wife in a rented townhouse with what seems to be an outdoor area of modest proportions. The landlord would be responsible for provision of certain types of handyman and maintenance services. However, I accept the plaintiff's evidence that these are not always attended to in a timely fashion and so he used to attend to many such matters himself (T60). I am of the view that an allowance of one hour per week is appropriate. 107The plaintiff gave evidence that his wife did the shopping but that he used to reluctantly assist her once a week. He told Ms Hogg that his wife did most of the grocery shopping but that he assisted her when necessary. He also said that now he is unable to complete shopping due to his poor walking tolerance. 108I am not persuaded that an allowance for a weekly shopping service is necessary. The plaintiff and his wife are the only occupants of the house and their shopping requirements must be relatively modest. 109As with past domestic assistance, I will leave it to the parties to agree a calculation upon my conclusions of two hours per week for domestic assistance and one hour per week for handyman, gardening, lawn and maintenance assistance. Net income loss 110It was the plaintiff's submission that there should be an amount of $149,378 for past net income losses and $552,973 for future net income losses. It was also submitted that there should be an amount of $100,000 allowed for the lost opportunity to significantly increase earning capacity. 111For the defendant, however, it was submitted that there should be an award in the order of $18,000 for past lost and that "an appropriate cushion for future economic loss would be in the order of $100,000". Alternatively, it was submitted that "loss for the future would be reflected by a notional weekly sum in the order of $200 per week". 112The plaintiff relied upon reports by an accountant, Mr Dennis Furey. His rationale was to completely ignore past earnings (although past taxation returns are annexed to his first report). Mr Furey looked at the commissions earned by Mr Sidoni since he commenced doing the work formerly done by the plaintiff for Sales Galore Pty Limited. He then increased that figure by an amount to factor in that Mr Sidoni's conversion of leads into actual contracts was in the order of 1 in 5 compared to the plaintiff's conversion rate of about 1 in 3.5. It was on this basis that, before any deductions were made, Mr Furey calculated average commission revenue of $187,636 per annum. 113The deductions that were made were the expenses of Albion Way Pty Limited, superannuation guarantee forgone, taxation, the prescribed discount rate of 5 per cent and 15 per cent for vicissitudes. 114Mr Priestley referred to the amount of the gross income of Albion Way Pty Limited that was attributable to "sales of goods and services". This was the figure that represented the commission revenue generated by the plaintiff's work for Sales Galore Pty Limited. In the 2005 tax year the gross income from the provision of services was $70,936. In 2006 it was $54,376; in 2007, $56,238; and in 2008, $73,549. That is vastly different to the figures calculated by Mr Furey with his method that ignored past earnings. 115The plaintiff's personal tax returns for the four years prior to the accident reflect an average assessable income of about $15,000 per annum. However, Mr Priestley fairly acknowledged that "because of the mysteries of assessing business income and deductions for tax purposes, his true earning capacity and even his true earnings were greater than this" (written submissions at [38]). 116When he recommenced work in his new role in about mid-2009, the plaintiff was earning $500 per week. According to Mr Capenecas, that was increased in about the middle of 2010 to $750 per week. The latter is little different in net effect to the gross commission income derived in the four years prior to the accident. 117Mr Priestley's submission was that a compromise was called for and that $100,000 was an appropriate figure (14.4.11 at T6). 118I am not satisfied that this is a case in which past events provide appropriate guidance about the future: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [7] - [8] per Gleeson CJ, Gummow, Kirby and Hayne JJ. With respect to Mr Priestley, I prefer the plaintiff's approach. I acknowledge the stark difference in the figures derived in the competing analyses. The fact remains, however, that the role played by the plaintiff has been taken over by a man with at least equal and possibly less skill than he had. There was no challenge to the evidence as to the commissions that Mr Sidoni had generated. That seems to me to be a fair assessment of the likely commissions that the plaintiff would have generated with the expansion of the enterprise that he had promoted. 119The greater scope of the work that Sales Galore Pty Limited subsequently came to offer seems to be the most likely explanation for the difference in the prior earnings of the plaintiff and the substantially greater subsequent earnings of Mr Sidoni. It must be borne in mind that the previous work that Sales Galore engaged in was in small scale constructions. The contracts subsequently won by Mr Sidoni in the period for which data is available (October 2008 to June 2010) were primarily in five figure sums but a number of them were in six figure sums. It is safe to assume that the value of contracts won by the plaintiff prior to his accident, when the work was confined to light constructions, was significantly less. Indeed, the average value appears to have been in the order of $15,000, whereas the average value of contracts won by Mr Sidoni is many times more than that. The plaintiff's commission rate was in the range of 8 per cent to 10 per cent. Mr Sidoni's commission rate averaged 8.5 per cent which is not significantly different. 120Accordingly, I am of the view that the earning capacity lost by the plaintiff as a result of the accident can be measured on the basis of the commission earnings of Mr Sidoni. That seems to be the best measure of the plaintiff's most likely future circumstances but for the injury: s 13 Civil Liability Act . 121I am satisfied as to the appropriateness of most of the assumptions made in Mr Furey's calculations. That includes an assumed retirement age of 67. I note that he has taken into account the 5 per cent discount and made an allowance of 15 per cent for vicissitudes. There was no real dispute about it but I also record that I am satisfied that the plaintiff's economic prospects as a consequence of the accident are broadly the same as they have been over the past two years or so; that is, his actual earning capacity in the future is not expected to be significantly different. 122There is, however, one aspect of Mr Furey's analysis with which I do not agree and that relates to the comparison of the lead conversion rates of Mr Sidoni and the plaintiff. The plaintiff's conversion rate was measured on the contracts he secured for Sales Galore in relation to light construction projects. Mr Furey was asked to proceed upon an assumption that he would have had the same conversion rate in respect of the full construction projects that have been part of the work that Mr Sidoni has performed. It may well be that the plaintiff was more effective in achieving sales than Mr Sidoni but there may well be factors which relate to the different nature and scope of the projects themselves that have a bearing upon conversion rates. In the end I am not persuaded that the assumption that the plaintiff would have had a greater conversion rate than Mr Sidoni is justified. Past and future net income loss should be recalculated without this assumption. 123The foregoing is not to completely dismiss the evidence about the relative attributes of the plaintiff and the man who has assumed his role because of the accident. I accept the evidence of Mr Capenecas which was to the effect that the plaintiff has energy, enthusiasm, work ethic and skill that exceed those of Mr Sidoni. Whilst I have said that I regard it as appropriate to calculate lost income upon an assumption that the plaintiff would have had an earning capacity the same as Mr Sidoni, I am also of the view that there should be buffer to compensate for the lost opportunity to derive increased earnings. There is support for taking this approach to the different capacities of the plaintiff and Mr Sidoni, as opposed to the approach taken in Mr Furey's calculations of factoring in the relative conversation rates. Mr Campbell conceded that the prospect that, in the future, the plaintiff "would have ... done better than Mr Sidoni (is) ... very difficult ... to mathematically calculate" (14.4.11 at T21.46). 124There is an additional factor to take into account. The calculations made by Mr Furey include a deduction for the plaintiff's present level of income. I am satisfied, however, that the long term security of the plaintiff's present employment is not assured. He is performing a job that is an amalgamation of tasks previously performed by others. It is, in effect, a job that was created specially for him largely out of the goodwill of Mr Capenecas at a time when it was hoped that he would eventually be able to return to his former role (T74.25). I am satisfied from Mr Capenecas' evidence that there is a reasonable possibility that this is not a position that the plaintiff will be able to remain in until retirement age. 125Mr Campbell's submission was that a $100,000 buffer should be allowed for the two contingencies: the lost opportunity to derive increased earnings and the prospect that the plaintiff will not retain his present employment. I am satisfied, as well, that if the present employment is lost, the plaintiff's prospects of obtaining alternative employment at an equivalent level of income are far from assured. I accept the submission. Superannuation 126Mr Furey also calculated that there should be an amount allowed for superannuation guarantee loss of $35,428 for the past and $162,956 for the future. The calculations take into account the proposed increase of the superannuation guarantee rate from the present 9 per cent to 12 per cent on an incremental basis between 2013-14 and 2019-20. 127It was submitted for the defendants that s 15C Civil Liability Act refers to a percentage of damages payable. However, Mr Campbell drew attention to the resolution of such an issue in Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 where it was held by Basten JA, Allsop P agreeing, that s 15C is to be construed as referring to a percentage of gross earnings. That is how Mr Furey appears to have approached the calculation. 128Otherwise there was no submission that an award under this head should not be made. The calculations will need to be updated.

Conclusions as to damages Non-economic loss $225,000.00 Past out of pocket expenses $52,043.89 Future medical treatment $40,000.00 Past domestic assistance Gratuitous attendant care for 9 months at 21 hours per week To be calculated Subsequent gratuitous attendant care until judgment at 7 hours per week To be calculated Commercial domestic assistance from February 2010 at $400 at 6 weekly intervals until judgment To be calculated Future domestic assistance Domestic assistance at 2 hours per week To be calculated Handyman, gardening and maintenance at 1 hour per week To be calculated Past and future income and superannuation loss Past and future income loss without assumption concerning different lead conversation rates To be calculated Loss of opportunity to significantly increase earning capacity and allowance for prospect of not maintaining present employment $100,000.00 Past and future superannuation guarantee loss To be calculated

Orders (1)Judgment for the plaintiff in a sum to be calculated. (2)The defendants are to pay the plaintiff's costs as agreed or assessed. Liberty to apply within 14 days if any alternative order is sought. (3)The parties are to confer with a view to agreeing calculations as to damages in accordance with these reasons for judgment. (4)Plaintiff to file agreed short minutes of order. (5)In the event that there is any disagreement, the parties are to approach my associate with a view to settling a timetable for 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: 09 August 2011