Hitchen v Strategic Formwork Pty; Hitchen v RTS Holdings Pty Ltd

2015/267220 K Andrews (Plaintiff) G Parker SC (Defendant)

Solicitors: 2014/129961 Law Advice Compensation Lawyers (Plaintiff) Biggers & Paisley (Defendant)

2015/267220 Law Advice Compensation Lawyers (Plaintiff) Moray & Agnew (Defendant)

Solicitors: 2014/129961 Law Advice Compensation Lawyers (Plaintiff) Biggers & Paisley (Defendant)

2015/267220 Law Advice Compensation Lawyers (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2014/129961; 2015/267220 Publication restriction: Nil

table of contents Witnesses Background Events leading up to the accident The relevant telephone call - 27 April 2011 Wayne Gales Control and supervision Occupational Health and Safety (OH&S) Anna Claire Van Der Merwe OH&S Mr Graham Van Der Merwe Establishment of two entities - RTS Holdings and Strategic Formwork Signs and shirts The salient features of the relationship between RTS Holdings and Strategic Formwork After the accident - Ben Knox Liability of RTS Holdings Liability of Strategic Formwork The plaintiff's pleaded case against Strategic Formwork Strategic Formwork's submissions The Civil Liability Act Section 5B Did Strategic Formwork owe the plaintiff a duty of care? The risk of harm - Was it foreseeable and not insignificant? Causation - s 5D of the Act Apportionment between RTS Holdings and Strategic Formwork After the accident - damages Roxy and the plaintiff's parents Trip back to Australia Return to work Damages Damages - Injuries and medical evidence Statistical information (1) Non economic loss The plaintiff's life pre and post accident After the accident (2) Past out of pocket expenses Economic loss Past economic loss Calculation of past economic loss Consideration Superannuation Past superannuation Fox v Wood Future economic loss Buffer? Future superannuation Past domestic care Future domestic assistance Housing adjustments Travel Automatic vehicle (3) Future out of pocket expenses Costs Judgment

Judgment

1. HER HONOUR: The plaintiff seeks damages for personal injuries sustained in an accident that occurred on 2 May 2011, when during the course of his employment, he sustained injuries resulting in incomplete paraplegia.
2. There are two proceedings involving the plaintiff. In proceedings No 2014/129961 the defendant is Strategic Formwork Pty Ltd ("Strategic Formwork"). In proceedings No 2015/267220 the defendant is RTS Holdings Pty Ltd ("RTS Holdings"). Both matters were heard together and evidence in one is evidence in the other.
3. RTS Holdings as the plaintiff's employer has admitted liability. The plaintiff's claim against RTS Holdings is an assessment of damages only. Strategic Formwork is alleged to have had the care, control and management of the premises at XXXX Street, Corrimal ("the yard") and denies liability. There are no allegations of contributory negligence made by either defendant.
4. The main issue in dispute is apportionment. Both RTS Holdings and Strategic Formwork have filed cross claims against each other seeking contribution pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). In its cross claim RTS Holdings, in addition to contribution, seeks indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW).

Witnesses

1. The plaintiff made a statement dated 14 June 2011 to WorkCover (Ex A) and an evidentiary statement filed 9 February 2016 (Ex B). Benjamin Knox a director of Compliance OH&S provided a statement to WorkCover dated 13 July 2011 (Ex F) and made a handwritten statement dated 3 May 2011 (Ex G), Michael Keogh the manager of Cronulla Beach Youth Hostel ("the hostel") provided a statement dated 12 July 2011 (Ex H) and Graham Van Der Merwe a director of Strategic Formwork made two statements to WorkCover dated 11 July 2011 (D1/3) and 14 July 2011 (Ex D1/4) and an evidentiary statement dated 4 April 2016 (Ex D1/2). Rosanne Appleton (Roxy) provided an evidentiary stated filed 21 June 2016. (Ex C). She is the plaintiff's partner and since the accident she has supported him both in Australia and England. She is a vibrant and responsible young woman. Her credit was not in issue. She was a truthful witness. I unhesitatingly accept her evidence. All witnesses gave evidence and were cross examined.
2. The plaintiff's mother and father Jean Hitchen and Jeff Hitchen filed evidentiary statements on 21 June 2016 (Exs N and O respectively). They reside in the United Kingdom. Christian Palmer made an evidentiary statement dated 5 April 2016 (Ex M). He currently resides in New Zealand working as a chef. Due to a video link failure these witnesses were not able to be cross examined. Their evidence is uncontentious.
3. Mrs Anna Claire Van Der Merwe provided a statement to WorkCover dated 14 July 2011 (Ex L). She was not required for cross examination.
4. Mr Gales the yard manager was ill and tendered a medical certificate. At the hearing I was satisfied that he was physically unable to give evidence. It is my view that it was not reasonably practicable for him to overcome that inability so his statement to WorkCover dated 1 June 2011 (Ex D2/4) and his affidavit dated 24 September 2015 (Ex D1/6) were admitted pursuant to s 63 of the Evidence Act 2005 (NSW). Hence he too was unable to be cross examined.

Background

1. The plaintiff's credibility was not in issue. The plaintiff is a determined young man who has persevered to improve his disabilities and has made a remarkable recovery. The plaintiff was an impressive witness who gave straightforward and truthful evidence and I have no hesitation in accepting his evidence. He did not exaggerate his injuries and if anything, he understated them. Senior counsel for Strategic Formwork tendered copies of the plaintiff's Facebook entries. (Ex D1/1). There is nothing in them that shows anything that is inconsistent with the plaintiff's presentation of his case. There is little dispute as to the facts and circumstances as to how the accident occurred.
2. The plaintiff was born in the United Kingdom in March 1986 and is currently 30 years of age. He presently resides in Deansgate, Manchester. He is currently employed as a neuro rehabilitation assistant for the National Health Service. He lives with his partner Roxy who met him shortly before the accident when they were both backpacking around Australia.
3. When he was 16 years old, the plaintiff completed high school. He captained schoolboy level football for his college and Lancashire.
4. In 2003, the plaintiff suffered a fracture of the left distal tibia and was treated at the Royal Liverpool hospital. He was not left with any disabilities.
5. From 2002 until 2010, while attending university, the plaintiff worked part time as a duty manager and personal trainer with FX Leisure, providing sale promotions and training to gym members. When he was not at university he worked full time at three to four gyms.
6. In June 2003, the plaintiff completed a course in economics at Winstanley College, Wigan.
7. In 2004, he completed college and commenced working as a land surveyor. He also coached football part time and was a gym instructor for two years.
8. From 2005 until 2006, the plaintiff worked as a full time land surveyor for RJP Surveys.
9. From 2005 until 2008, the plaintiff worked part time as head coach and regional co-ordinator for Proscore Academy providing soccer coaching to school children.
10. On 7 July 2009, the plaintiff obtained Bachelor of Sport and Exercise Science with second class honours (Division 1) from the University of Lancaster.

Events leading up to the accident

1. Mr Keogh gave evidence and was cross examined. Mr Keogh was a truthful witness and his contemporaneous diary entries supported his evidence. Mr Keogh gave evidence that over the last five years he often received telephone calls from Mr Van Der Merwe asking if Mr Keogh had any backpackers that might be interested in some casual labour. (T113.35-50). It is only necessary to refer to the last two telephone calls prior to the accident.
2. On the afternoon of 8 April 2011, Mr Van Der Merwe from Strategic Formwork rang Mr Keogh. Mr Van Der Merwe said that they needed two guys to work for two to three weeks. The guys needed to have a car or transport to get to the yard. Mr Keogh does not recall if Mr Van Der Merwe mentioned at that time whether the site was in Corrimal or Helensburgh but thinks that this was the first time he had heard about the Corrimal yard. Mr Van Der Merwe told Mr Keogh that if anyone was interested in doing the work they could contact a man called Wayne to get details about the job. Mr Van Der Merwe gave Mr Keogh Wayne's mobile phone number and Mr Keogh wrote the information in his diary at the time. (Ex J). Mr Keogh was unable to find anyone who was staying at the hostel who wanted to do the work because no one had transport.

The relevant telephone call - 27 April 2011

1. On 27 April 2011, Mr Keogh received a telephone call from Mr Gales about work at Strategic Formwork. He does not recall whether it was in the morning or afternoon. Mr Gales told Mr Keogh that he had casual jobs in the yard for up to four guys for three weeks with a pick up available from Gymea train station at 6.00 am. Mr Gales informed Mr Keogh that if anyone was interested in the work they could contact a person called Leigh to make arrangements for pick up. Mr Gales provided Mr Keogh with Leigh's mobile phone number. Mr Keogh wrote details of this phone call in his diary. (Ex K).
2. The plaintiff, Christian Palmer, George Imlach and Michael Stockwell were staying at the hostel.
3. On the same day (27 April 2011), Mr Keogh informed Christian that there was a labouring job available, requiring four workers for three weeks on a full time basis. Mr Keogh gave Christian a number to call. Christian rang the number and spoke to a person called Wayne, whose surname he did not know. (Ex M [12] and [13]).
4. Christian Palmer, George Imlach and Michael Stockwell all took up the opportunity to start work on Thursday, 28 April 2011. The plaintiff did not start work on that Thursday as he had worked 14 days straight with Dyson and was too tired. On arrival Christian, George and Michael were greeted by Mr Gales. Christian says that the name Wayne Gales sounded familiar, but he could not be 100 per cent sure of the surname. He described Mr Gates as being a large guy, about six foot in height, in his mid to late forties, with black curly hair. (Ex M [14]). It appeared to Christian that Mr Gales was the site manager and oversaw all the activities of workers at the yard. None of them were informed of the company hierarchy or staffing structure. (Ex M [25]). The yard was a mess with formwork and timber lying around in disorganised piles. There was a warehouse at the front of the site with signage of Strategic Framework and a makeshift office that was made from unused shipping containers.
5. Christian Palmer's evidence is not controversial and corroborates the plaintiff's version of events. He was working with the plaintiff both on the Friday prior to the accident and on the day of the accident.
6. Prior to commencing work at the yard, Christian had some prior experience with labouring and landscaping. He did not hold any qualifications in any trade, nor did he have his "White Card" or any industry related OH&S training. He assumed that the plaintiff was in a similar position. (Ex M [19] and [20]).

Wayne Gales

1. On 1 June 2011, Mr Gales provided a statement to WorkCover. (Ex D2/4). On 24 September 2015, he swore an affidavit. (Ex D1/6). As previously mentioned, he was not available to be cross examined. Since 2007, he had been employed by RTS Holdings as a yard supervisor. Up to 2009, Mr Van Der Merwe trained Mr Gales to manage the yard and provided Mr Gales with on the job training and site specific tasks in the yard so that he could then train the boys. He was paid by RTS Holdings. On 1 March 2011, Mr Gales received a salary adjustment. (Ex D1/11). He is a qualified panel beater and had bobcat, loader and excavator tickets. However, he did not hold any qualifications for the supervisory position he held at RTS Holdings as at the day of the accident.
2. Mr Gales deposed that he was the only one with authority to provide instructions to the plaintiff as to his method of work. Mr Gales became aware that the shipping container was not on even ground and was unbalanced about a week prior to the plaintiff's accident. Mr Gales was also aware that the beams within the shipping container did not have gluts separating the individual beams. A glut is put on the ground so when the timbers are stacked, the forklift driver can position the forklift underneath. The gluts stabilise the beams. He says that at no point did he notify anyone at Strategic Formwork or anyone else of these facts. (Ex D1/6 [35] and [36]).

Control and supervision

1. Mr Gales' evidence in relation to control and supervision is similar to that of Mr Van Der Merwe. Mr Gales says that he discussed safety issues with Mr Van Der Merwe once every two months when Mr Van Der Merwe visited the yard. During the time that Mr Gales was employed with RTS Holdings he was responsible for the employees. He told the employees firstly, what work they were doing for that day; secondly, how to do the work; and finally, the achievement expected by the end of the day. Luke Day was Mr Gales' direct supervisor and instructed him in relation to the duties he carried out for RTS Holdings.
2. Mr Gales says that Mrs Van Der Merwe did not have any role in the day to day operations of RTS Holdings. However, in his role as yard supervisor for RTS Holdings, Mr Gales says that he was answerable and required to comply with instructions or directions given by Mr Van Der Merwe. If Mr Day was on holidays Mr Van Der Merwe would step in. Mr Van Der Merwe would occasionally ring Mr Gales and talk about things and see how everything was going. The information about the progress of loads or getting equipment ready was given verbally and by email, usually from Mr Day. Mr Gales would telephone Mr Day and tell him the progress of a particular job.

Occupational Health and Safety (OH&S)

1. Prior to the plaintiff's accident, Mr Gales was responsible for managing OH&S for RTS Holdings at the yard. Mr Gales had not been provided with any specific OH&S training nor did he have any previous experience in undertaking OH&S responsibilities. He is not aware as to why RTS Holdings did not have an OH&S management system from the time it commenced operations at the yard nor why there was no OH&S documentation at the yard. He says that RTS Holdings had a verbal method of managing their OH&S at the yard whereby Mr Van Der Merwe would tell Mr Gales what work had to be done and how he expected it to be done in a safe way. When giving instructions Mr Van Der Merwe would identify the particular work tasks and explain the associated risks or hazards that might be present while performing those tasks. Mr Van Der Merwe provided directions or information on how to remove or manage those hazards or risks. Mr Gales verbally conveyed this information to the employees performing the work.
2. There were no safety audits of the yard undertaken either internally or externally. No employees or other persons were provided with a site induction at the yard prior to them commencing work. Mr Gales knew from his previous work experience that employers were required to complete site inductions, but that this did not occur at RTS Holdings.
3. Since the accident RTS Holdings has taken steps to improve its OH&S practice and procedures. It has documented procedure developed for the unstacking of the beams from containers and has changed how the work is done. The beams are now pulled out one by one so there is no one standing next to them and it is impossible for the beams to fall on anyone. I shall refer to the steps taken to make the workplace safer in more detail later in the judgment when I summarise the evidence of Ben Knox.

Anna Claire Van Der Merwe

1. Mrs Anna Claire Van Der Merwe provided a statement to the WorkCover Authority dated 14 July 2011 (Ex L). She was not required for cross examination. As at the date of the accident, she was the director of RTS Holdings. While she had been a director of RTS Holdings since 2007, she became a working director in 2009, with her husband Graham Van Der Merwe. She holds shares in RTS Holdings and is paid by RTS Holdings annually. She has not redeemed any dividends.
2. RTS Holdings had 10 employees at the time of the accident. Its annual turnover in 2011 was $1,200,000. She played little or no relevant part in the OH&S issues of the yard. Mrs Van Der Merwe says that she has no level of influence with Strategic Formwork, nor did she have any involvement with the day to day operations of Strategic Formwork. She says that Strategic Formwork does not provide any financial support to RTS Holdings. Overall she played little or no part in the activities and management of RTS Holdings, other than as an accountant. She did not play any role in relation to OH&S (or its lack thereof) at the yard.
3. After 2011 Mr Van Der Merwe was no longer an employee of RTS Holdings but remained the point of contact for Mr Gales. Mrs Van Der Merwe describes it as like a transition so Mr Gales was comfortable knowing that if he needed Mr Van Der Merwe he could call him.
4. It is common ground that Mr Gales was allowed to order any stock or any items that he required to almost any value from authorised suppliers that they had a credit application with. There was also a $500 limit for out of pocket expenses so that Mr Gales could buy brushes or paint or the like. (T164.39-42). Mr Gales was also authorised to order and make payments from suppliers if there was an established account in place. He was not authorised to sign cheques. The range of the credit limits were anywhere from $5,000 to $20,000. If he wanted to spend a sum of say $50,000 he would have to get approval.
5. Mrs Van Der Merwe attended the yard about two to three times a year. The purpose of her visits was to show her face, to see the yard and assess it. She says that her safety concerns were usually in the nature of housekeeping and the untidy yard. However, I find that it was Mr Van Der Merwe who identified the untidy yard. Mrs Van Der Merwe did not specify any other safety concerns. In response to those concerns, if any, she says that she would discuss them with Mr Van Der Merwe, review them and check that action had been taken.

OH&S

1. At the time of the plaintiff's accident, Mrs Van Der Merwe says that she had the overall responsibility for OH&S but in fact there was no OH&S management plan or documentation in place. She acknowledges that there was no systematic reporting system at the yard but says that Mr Gales had the responsibility to implement the company's OH&S obligations at the yard. However, she also says that Mr Gales would report to Mr Van Der Merwe if any safety issues arose. Mrs Van Der Merwe says that it was Mr Gales who acted in the capacity of OH&S representative at the yard. She understood at the time of the plaintiff's accident that Mr Gales had no formal qualifications in OH&S but had a lot of experience. She believed that Mr Gales had received training from Mr Van Der Merwe but she did not actively do anything in relation to OH&S training, implementing proper procedures such as reporting or record keeping.

Mr Graham Van Der Merwe

1. Mr Van Der Merwe provided three statements dated 11 July 2011 (Ex D1/3), 14 July 2011 (Ex D1/4) and 4 April 2016 (Ex D1/2). He gave evidence and was cross examined.
2. Since the mid 80's, Mr Van Der Merwe has been employed in the construction industry. He is a qualified civil engineer. His experience in the construction industry predominantly involves the supervision of formwork systems, including site engineer. His formal education, through his civil engineering degree, made him knowledgeable about stability, safe working load, load patterns and stress and safe storage of materials. Throughout his career he has been responsible for supervising construction personnel undertaking tasks on and off site, both in Australia and overseas. (Ex D1/5 [5] to [7]). Since 1992 he has been involved in the construction industry throughout the world. He has been involved in site safety induction courses and is trained in relation to power tools, loading and unloading, rigging and working at heights. He has also been involved in various safety issues at various sites in occupational health and safety at sites throughout the world. (T134.5-18).

Establishment of two entities - RTS Holdings and Strategic Formwork

1. Mr Van Der Merwe explained how the two entities came into fruition.
2. In 2006, Strategic Formwork's largest client went into liquidation. There was non payment of Strategic Formwork's invoices which put it at risk of also going into liquidation. After that Strategic Formwork sought advice as to how it could protect its assets should something like that happen to it in the future. The advice given was to split the company into two parts. RTS Holdings was incorporated in 2007. (T125.5-21).
3. Strategic Formwork designed its own branded jumpform system called the Coremaker jumpform. A jumpform is a reusable formwork mould used to construct high rise lift shafts. The Coremaker jumpform is self-climbing, meaning it does not require the use of a crane. It is made from timber and steel.
4. After RTS Holdings commenced operation in 2009, it became responsible for the storage, servicing and maintaining of the Coremaker jumpform. Strategic Formwork remained responsible for the design and site supervision of the Coremaker jumpform and developed a crane lifted "Wallmaker" jumpform system. RTS Holdings supply jumpform equipment to formwork companies for the construction industry. RTS Holdings currently have two clients including Strategic Formwork.
5. Strategic Formwork and RTS Holdings were established by Mr Van Der Merwe. Mr Van Der Merwe was the general manager of RTS Holdings from May 2009 until January 2011 and again from 1 July 2011 (Ex D1/4 Q&A 14-20). From May 2009, Mr Van Der Merwe was a director and employee of Strategic Formwork and Mr Day was the general manager of Strategic Formwork.

Signs and shirts

1. The plaintiff understood that he was working for Strategic Formwork as he had seen the name Strategic Formwork on the employees' jerseys (Ex A Q&A 12 and T72.19-22) and had seen a sign on the yard, although he was never told who his employer was. (T72.5-17).
2. Christian does not remember Mr Gales identifying himself as being from Strategic Formwork. However, Christian says that he was of the belief that Mr Gales was the site manager for Strategic Formwork. (Ex M [12] and [13]). He also saw the name Strategic Formwork visible on some of the worker's t-shirts (Ex M [16]). Mr Gales says, and I accept, that at no stage did he advise the plaintiff that he was employed by or worked for Strategic Formwork. (Ex D1/6 [29]).
3. In cross examination Mr Van Der Merwe explained the presence of signs of Strategic Formwork signage on the shirts and the bins in the RTS Holdings yard. His explanation is that when RTS Holdings delivered equipment to Strategic Formwork's job sites, they would label the delivery bins with Strategic Formwork. If the equipment was delivered under RTS Holdings, the multiplexes or their clients would not recognise who belonged to that gear, so they would load the equipment into delivery boxes with Strategic Formwork written on it. Some of the delivery boxes were in the yard. (T129.14-24). He further explained that it is very common in the construction industry for companies to share high visibility work shirts. Strategic Formwork gave them out a lot to their clients, so you would see people working for Wideform or BKH wearing Strategic Formwork's personalised protective equipment. Mr Van Der Merwe says that it a common practice throughout the industry. (T128.48-50; T129.1-6). I accept that there were Strategic Formwork work shirts worn by employees and bins at the yard had Strategic Formwork written on them.

The salient features of the relationship between RTS Holdings and Strategic Formwork

1. Strategic Formwork and RTS Holdings have the same registered principal place of business, Mr and Mrs Van Der Merwe's home. Strategic Formwork and RTS Holdings share a number of administrative functions. Strategic Formwork is a client of RTS Holdings and hires formwork equipment from RTS Holdings. (Ex D1/2 [9]).
2. The commercial lease of the yard is between Albert Street (NSW) Pty Ltd as landlord and RTS Holdings as tenant that commenced on 1 November 2009 for a period of two years with rent payable of $5,000 per calendar month. Mr Van Der Merwe guaranteed the lease of the yard. (Ex D1/9).
3. There is a standard hire agreement between RTS Holdings and Strategic Formwork dated 19 June 2010. (Ex D1/13). It relevantly states: "By signing this Hire Agreement you are entering into a legal contract with us and confirming that you accept the following: A Hire will commence upon despatch of equipment to the pre-assembly yard and shall cease when all the components have been stripped, thoroughly cleaned and returned to our yard. …"
4. Interestingly, on 1 May 2001, RTS Holdings hired to Strategic Formwork, 68 jackets for the supply of Coremaker Equipment to "Supreme Law Courts" (Invoice RTSH3425, Ex D1/15).
5. Mr Gales was the yard supervisor of RTS Holdings at the time of the accident (Ex D2/4 Q&A 26 and 27) having been promoted to yard manager when Mr Van Der Merwe left RTS Holdings in 2009.
6. Mr Van Der Merwe designed the system of work implemented which was the operative system of work at the time of the plaintiff's accident (D1/4 Q&A 122).
7. When Mr Van Der Merwe was interviewed by Inspector Michael Duncan, he said: "The main thing that would have prevented the incident from occurring is if the timbers had been stored with gluts, second to that the container should have been levelled, thirdly a more senior person would be assigned to work with a less experienced person, regular uploads of how the yard looked like should be forwarded to upper management." (D1/4 Q&A 138).
8. Mr Van Der Merwe agreed that RTS Holdings did not have an overriding safety document because: "I had a strong belief in the other areas of safe working, which had been influenced by my time on construction sites. Very much a believer in communication with lads using pictures and diagrams and satisfying myself that they knew the scope of works and risks that go with that. The idea is that there is a fulltime supervisor, there is constant communication and there is on the job training monitoring and also leading by example for example getting the first aid box on site, providing facilities, educating that if a tool is broken you just buy a new one you don't try to repair it." (Ex D1/4 Q&A 102)

After the accident - Ben Knox

1. On 3 May 2011, Ben Knox made a handwritten document. (Ex G). On 13 July 2011 Ben Knox, was interviewed by Stephen Cooper on behalf of WorkCover. (Ex F). Mr Knox is the director of Compliance OH&S. He has Bachelor of Applied Science in Occupational Therapy and a diploma in Occupational Health and Safety. He is a certified occupational health and safety auditor. He holds a white card which is a construction induction certificate. Mr Gales was obliged to report to Mr Day, the general manager of Strategic Formwork every day as to the progress of a particular job. In the absence of Mr Day, Mr Gales would report to Mr Van Der Merwe.
2. On 3 May 2011, Mr Day contacted Mr Knox by telephone and told him that he was employed by Strategic Formwork but was assisting RTS Holdings with compliance of improvement and prohibition notices it had received. Mr Knox arranged to meet with Mr Day the next day at the office of Strategic Formwork.
3. On 4 May 2011, a meeting was held at the office of Strategic Formwork at Sutherland. Mr Knox, Mr Day, Mr Van Der Merwe and Mrs Van Der Merwe were in attendance. At the meeting, Mr Knox took handwritten notes and it was explained to him that there had been an incident at RTS Holdings where a worker had been injured. He discussed the final costs of his services with Mr Van Der Merwe who Mr Knox believed was the director of Strategic Formwork. Mr Knox says that he only had one discussion with Mrs Van Der Merwe who he understood was the sole director of RTS Holdings. All other instructions were provided verbally by Mr Van Der Merwe. There was no written authorisation in relation to the services Mr Knox was to provide although he thought there could have been emails. (Ex F Q&A 82).
4. On 4 May 2011, Mr Knox attended the yard with Mr Van Der Merwe, Mr Day and Mr Gales so he could review the needs of RTS Holdings in relation to OH&S. He had, like Mr Gales and Mr Van Der Merwe, observed that the yard was untidy. He became aware that there were limited policies and procedures in place and amongst other safety concerns, some materials were stacked in an unsafe manner.
5. Mr Knox's evidence is that there were some management systems in place. The extent of the management system was that there were verbal instructions and staff were supervised until deemed they were competent to perform their work tasks. There were also some photographs that showed the appropriate procedure for stacking beams. Apart from the verbal instructions and photographs Mr Knox says that there were no documented policies or procedures in place at the yard.

Liability of RTS Holdings

1. So far as RTS Holdings is concerned, it has admitted breach of duty of care so the plaintiff's claim against it is for assessment of damages only. RTS Holdings is liable for damages pursuant to the Workers Compensation Act. The plaintiff's damages claim is limited to economic loss, comprising of loss of income, superannuation and Fox v Wood (1981) 148 CLR 438; (1981) 35 ALR 607; (1981) 55 ALJR 562; (1981) 1 ANZ Ins Cas 60-445; [1981] HCA 41 components.

Liability of Strategic Formwork

1. The main issue in these proceedings is whether Strategic Formwork was also negligent and has a liability to pay damages to the plaintiff and if so then what should be the apportionment between Strategic Formwork and RTS Holdings.
2. So far as liability is concerned, Strategic Formwork submitted that firstly, it did not owe a duty of care to the plaintiff; secondly, it was not in breach of any duty of care owed (in the sense that it was not negligent within the meaning of s 5B of the Civil Liability Act 2002 (NSW)); and finally, any breach of duty of care by it did not cause the plaintiff's accident.

The plaintiff's pleaded case against Strategic Formwork

1. The plaintiff pleads that on 2 May 2011 Strategic Formwork:

• Strategic Formwork had the care, control and management of the yard. It carried out a business and/or occupation at the yard which required it to engage in the process of supplying, moving and/or preparing laminated veneer lumber planks (beams) which were supplied to the plaintiff's employer RTS Holdings. (ASC [2] and [3]).
• By its servants and/or agents was aware and/or ought to have been aware that the shipping container was not level and that it had the beams stacked on one side of it which were likely to fall due to the way in which the shipping container was seated on the yard; and that Strategic Formwork ought to have been aware that in the absence of taking appropriate precautions there was a risk that the plaintiff would sustain serious and life threatening injuries and that appropriate steps were available which would have prevented such injuries being sustained by the plaintiff. (ASC [8] and [9]).
• Was under a duty to ensure that appropriate steps were taken to ensure that persons entering the shipping container were not likely to be injured by the beams falling as a result of the container not being level and/or as a result of the manner in which the container had been stacked with the beams. (ASC [10]). Strategic Formwork denies these allegations. (D [7]).

1. The plaintiff adopted RTS Holdings' submission that Strategic Formwork firstly, failed to provide supervision of all employees including the plaintiff working at the yard; secondly, failed to ensure that the shipping container was placed upon a level surface; thirdly, failed to inspect the shipping container before allowing the plaintiff to enter the shipping container to determine that it was safe for him to do so; fourthly, failed to ensure that the plaintiff and/or other personnel working at the yard had been appropriately instructed and/or trained in the performance of their duties; fifthly failed to carry out occupational health and safety management audits; sixthly, failed to provide assistance and/or ensure that assistance was provided to the plaintiff in the performance of his duties; seventhly, failed to provide to the plaintiff and/or ensure that appropriate equipment was provided to him to perform the duties at the yard; eighthly failed to inspect the inside of the shipping container to ensure that it was safe for persons to enter and remove timber without the risk of injury; and finally, failed to ensure that a safe system of work was in place at the yard. (ASC [11A]).

Strategic Formwork's submissions

1. Firstly, Strategic Formwork submitted there is no evidence that it conducted a business at the yard. The fact that any of its employees, such as Mr Day and Mr Van Der Merwe, may have attended the yard from time to time while they were employed by Strategic Formwork (that is, during the period between January 2011 and the date of the accident on 2 May 2011), does not mean that Strategic Formwork was conducting a business at the yard.
2. Secondly, Strategic Formwork submitted that if it conducted a business at the yard then the next question that arises is whether it was the occupier of the yard and Strategic Formwork says that there is no evidence that it was. There is a commercial lease between RTS Holdings and the owner of the yard. Strategic Formwork says that there is no evidence that it was in control of the yard and the evidence of Mrs Van Der Merwe does not suggest or lead to any inference that RTS Holdings shared occupation with Strategic Formwork. (Ex L). I place little weight on this submission as quite frankly Mrs Van Der Merwe had little understanding of what her responsibilities as director of RTS Holdings entailed.
3. Assuming I accept what Strategic Formwork understands to be the focus of the cross examination of Mr Van Der Merwe, Strategic Formwork submitted that all that has been established is that Mr Van Der Merwe had some authority in respect of financing matters and of occupational health and safety and that Mr Van Der Merwe would have expected Mr Gales, who used to work for him, to follow any instructions he might give. I agree that situation would not be surprising but overall it is my view that Mr Van Der Merwe and Mr Day exercised de facto control of the day to day running of RTS Holdings.
4. Thirdly, Strategic Formwork submitted that there is no suggestion that the arrangements between Strategic Formwork and RTS Holdings are a sham. The Court has always upheld the sanctity of the corporate structure but that does not determine whether or not the corporate structure owes a duty of care to the plaintiff.
5. Finally, Strategic Formwork says that so far as paragraph 11(B) of the ASC is concerned the plaintiff's alternate argument is a novel one and is based on simply ignoring the different corporate structures and focusing on Mr Van Der Merwe's status as the husband of Mrs Van Der Merwe and the founder of the business. In 2011, Mr Van Der Merwe was no longer employed by RTS Holdings. Strategic Formwork submitted that despite this fact, the plaintiff alleges that Mr Van Der Merwe must still have had some power and authority. Therefore Strategic Formwork owed a duty of care to the plaintiff merely because Mr Van Der Merwe could still go to the yard and Mr Gales would do what Mr Van Der Merwe asked him to do.

The Civil Liability Act

1. Sections 5B and 5D of the Civil Liability Act 2002 (NSW) ("the Act") are relevant here, I will deal with each of them in turn.

Section 5B

1. Section 5B of the Act reads: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
2. The plaintiff referred to Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 ("Endeavour Energy"), where Basten JA (with whom Macfarlan JA and Sackville AJA agreed) in relation to the breach of duty of care found that given the long-standing practice of conducting aerial inspections of power lines in rural areas, combined with the public campaigns advertising such inspections, Telstra, the second defendant, ought reasonably to have foreseen the possibility that a helicopter may operate in the vicinity of its wire and thus come in contact with a not readily detectable wire. The risk which arose was not insignificant. Hence Telstra owed a duty of care to the owner of the helicopter and its occupants.
3. In Endeavour Energy Basten JA stated at [29]: "The first two elements in s 5B(1), foreseeability and significance of risk, will usually constitute matters to be considered in determining whether a duty is owed in particular circumstances to a class of persons including the plaintiff. That does not mean that duty is to be addressed by application of s 5B and 5C; as explained by Beazley P in Grills v Leighton Contractors Pty Ltd, such an approach would be erroneous. The existence of a duty of care depends, in part, upon a prospective determination that physical injury to a class of persons which would include the plaintiff was reasonably foreseeable in circumstances where the defendant did not take reasonable care in conducting its affairs. As Gageler J stated in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288: 'A duty of care at common law is a duty of a specified person, or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid specified loss to another specific person, or to a person within another specified class.'"

Did Strategic Formwork owe the plaintiff a duty of care?

1. The alleged duty of care owed by Strategic Formwork to the plaintiff derives from the relationship between Strategic Formwork, RTS Holdings and employees of RTS Holdings. While Strategic Formwork argued that the Court has always upheld the sanctity of the corporate structure, this of itself does not absolve it from owing a duty of care to the plaintiff.
2. I shall briefly summarise the set of circumstances to ascertain whether a duty of care arises.
3. Mr Gales said he reported to Mr Van Der Merwe and Mr Day. Mr Van Der Merwe personally trained Mr Gales. (Ex D1/4 Q&A 93-94).
4. Mr Van Der Merwe was the managing director of RTS Holdings. He is currently the director of Strategic Formwork. Mrs Van Der Merwe is the director of RTS Holdings. Mr Van Der Merwe explained the way in which the businesses were established, why they were established and the separate functions of the businesses.
5. Mr Gales said of the management structure of RTS Holdings "Graham or Luke would be in charge and they would let me know what was needed and what was needed at different times." Mr Gales also explained that he was answerable to Mr Day, who was his direct supervisor. (Ex D2/4 Q&A 39, Q&A 48-53). Mr Gales was obliged to report to Mr Day, the general manager of Strategic Formwork, every day as to the progress of either a particular job or particular jobs. In the absence of Mr Day, Mr Gales would report to Mr Van Der Merwe.
6. As I explained earlier in this judgment, the relationship between Strategic Formwork and RTS Holdings was a commercial one. Strategic Formwork was reliant upon RTS Holdings to supply products to it. As Mr Van Der Merwe explained, he would go to the yard of RTS Holdings so as to ensure that the products Strategic Formwork required from RTS Holdings were on schedule because if Strategic Formwork did not get the products on time, the supply to clients became a problem. It was of critical importance that RTS Holdings were delivering stock to Strategic Formwork on time and getting it right. (T128). To my mind this was a commercial imperative and central to the relationship between RTS Holdings and Strategic Formwork. In fact Mr Van Der Merwe exercised a lot of control over the day to day running of RTS Holdings.
7. Casual employees, often backpackers, were obtained from the hostel. It was Mr Van Der Merwe's practice to ring the hostel to secure casual labour. He hired staff directly and directed Mr Gales to employ staff. (Ex D1/5 [31]). On 8 April 2011 Mr Van der Merwe requested two men who were to be employed by RTS Holdings, who needed to have a car. On 27 April 2011, Mr Gales rang Mr Keogh, the manager of the hostel, to request employees for "Strategic". (Ex J).

The risk of harm - Was it foreseeable and not insignificant?

1. Counsel for the plaintiff submitted that the risk of harm which was known or ought to have been known to Strategic Formwork was that the plaintiff would sustain not insignificant injury in the event that the beams collapsed during the course of unloading them from the shipping container.
2. As previously stated, Strategic Formwork through Mr Van Der Merwe knew or ought to have known that the lack of gluts stabilising the beams in the shipping container, the lack of assistance of experienced personnel and the fact that the shipping container was not level were all causative of the fall of the beams which caused the plaintiff's injury.
3. In my view the risk of harm as defined in s 5B of the Civil Liability Act was foreseeable to Strategic Formwork, or ought to have been foreseen by Strategic Formwork, because Mr Van Der Merwe and therefore Strategic Formwork knew that:

• The beams in the shipping container were liable to collapse unless the stack was stabilised by the position of gluts.
• The shipping containers were being used to store the beams.
• The beams that were being delivered to RTS Holdings and on-delivered to Strategic Formwork job sites were on occasions delivered without gluts. Mr Van Der Merwe directed Mr Day and the yard at Strategic Formwork that "gluts must be used period".
• The delivery of beams without gluts represented "safety to everybody. The delivery of beams like that onto the site flagged up a change in material handling on site to resolve that issue." (D1/4).

1. The plaintiff submitted that:

• Each of these facts were known to Strategic Formwork and had been known for a prolonged period of time.
• Strategic Formwork had the capacity to control the accident site, to direct the system of work which should have been engaged and to have implemented by way of directions to Mr Gales a means of carrying out the duties without the risk of injury.
• Strategic Formwork was in a position to monitor, direct and enforce the system of work which was adopted at RTS Holdings' premises. (T263.5-9).

1. The evidence establishes that Mr Van Der Merwe, on behalf of Strategic Formwork:

Causation - s 5D of the Act "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

1. To establish causation, the plaintiff is required to prove on the balance of probabilities that had Strategic Formwork taken the steps identified, the injury to the plaintiff would not have occurred or would have been avoided.
2. If Strategic Formwork had taken reasonable care to ascertain whether the beams were stable before permitting the plaintiff to commence unloading them, the accident would have been avoided. As previously stated, all that needed to occur was for a reasonable inspection to take place before the plaintiff commenced work inside the shipping container. On the balance of probabilities, this would have ascertained that the gluts were not in position and the shipping container was not level. If a more experienced employee than Mr Palmer or the plaintiff had done so, there is a substantial prospect that he would have detected the potential danger. In that event, an instruction that the work was not to proceed until the beams were stabilised and the shipping container made level would have completely eliminated the risk of harm.

Apportionment between RTS Holdings and Strategic Formwork

1. RTS Holdings as the employer is liable for its failure to provide the plaintiff with a safe system of work and for this RTS Holdings has admitted its liability.
2. If Strategic Formwork has a liability, then the Court must assess apportionment according to what is just and equitable in accordance with the principles set out in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529; (1985) 59 ALJR 492; (1985) Aust Torts Reports 80-321; [1985] HCA 34 ("Podrebersek").
3. In Podrebersek, the High Court stated (at 10): "… comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage: ... . It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
4. In Endeavour Energy, Basten JA at [165] stated: "Apportionment of liability on a just and equitable basis does not provide clear standards or permit precise calculation. It involves a weighing of various causative factors, resulting in relevant loss…"
5. RTS Holdings seeks that Strategic Formwork indemnifies it under s 151Z(2) of the Workers Compensation Act. A determination must be made as to the respective responsibility of RTS Holdings and Strategic Holdings.
6. Section 151Z(2) of the Workers Compensation Act relevantly reads: "(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 3 as to the award of damages, …"

After the accident - damages

1. As previously stated, the plaintiff was taken to Wollongong hospital and then transferred by helicopter to Princes of Wales hospital at Randwick where he remained for just over seven weeks. On 5 May 2011, a ventilation and perfusion lung scan was performed upon the plaintiff. On 6 May 2011, an x-ray and CT scan of the thoracic and lumbar spine confirmed thoracolumbar fusion. On 9 and 10 May 2011, the plaintiff underwent a whole body bone scan and whole body gallium scan. On 11 May 2011, an x-ray of the plaintiff's left ankle was performed which showed that there was an undisplaced fracture of the lateral malleolus.
2. The plaintiff underwent surgery and a T11-L2 posterior spinal fusion with pedicle screw and rods was performed. As a result of the accident, the plaintiff sustained injuries resulting in incomplete paraplegia.

Roxy and the plaintiff's parents

1. Roxy arrived at the hospital on the day that the plaintiff's accident occurred. During the plaintiff's stay at the Prince of Wales hospital she moved to Manly. Every day at 7.00 am she caught the ferry and then a bus to the hospital. She stayed with the plaintiff all day, leaving at around 10.00 pm or 11.00 pm when they "kicked her out". She helped the plaintiff in an out of his wheelchair, helped him to dress, wash and shower, moved him around, did things for him on the internet, sorted out the TV and obtained food and drinks for him. She made the plaintiff breakfast and got his dinner, liaised with his doctors and medical practitioners, did his washing, ironing, transported his clothes back and forth and anything else that he needed. She also provided him with constant emotional support which was very important to him. She spent all day and most nights providing some form of care and assistance.
2. The plaintiff's parents arrived from Wigan, United Kingdom about two days after the accident. Initially, they were absolutely devastated when they were told by the plaintiff's surgeons that there was a 95% certainty that the plaintiff would not walk again.
3. The plaintiff's parents provided him with every support possible and had meetings with his surgeons and social worker at Prince of Wales hospital. Every day was spent at the hospital. They also got in touch with Southport Spinal Unit in the United Kingdom to begin the possibility of repatriation. The plaintiff's parents say that the biggest hurdle was the plaintiff coming to terms with the possibility that he may not walk again. The plaintiff also had to see a psychologist because of the mental trauma as a result of his accident. They say that all that they could do was to be with the plaintiff and be strong for him. While the plaintiff's parents were in Australia, they stayed with him every day at the hospital helping him with anything that was required. They estimate that they spent about 8 to 10 hours per day at the hospital providing physical and psychological support to the plaintiff.
4. The plaintiff's parents paid for their return flights to and from Sydney and for their accommodation. They also paid for Roxy's flight back to Wigan and the plaintiff's living expenses while he was living with them on his return to the United Kingdom.
5. On about 25 June 2011, the plaintiff was discharged from hospital in Australia. He travelled directly to the airport and on to the United Kingdom. On his arrival in the United Kingdom the plaintiff was transferred to the spinal injuries unit at Southport and Ormskirk hospital where he remained for two weeks. The plaintiff was discharged as an inpatient of Southport and Ormskirk hospital but remained an outpatient with daily treatment.

Trip back to Australia

1. In January 2012, the plaintiff and Roxy returned to Australia for four weeks to finish off their holiday that had been cut short due to the plaintiff's accident. They travelled from Sydney to Cairns in a campervan. Roxy did most of the driving. Although the plaintiff took his crutch and medication with him, he found it quite a challenge. They both enjoyed it but stated "We got through it." (T16.35). They flew back from Cairns to Sydney and then onto the United Kingdom.
2. On 13 March 2012, the plaintiff consulted Mr Soni who noted a numbness patch at L1/L2 and L3 on the plaintiff's left side with weakness of the ilipsoas and quadriceps muscles on his left side. On 3 August 2012, the plaintiff again consulted Mr Soni who noted that the plaintiff was walking without aids but his gait was slow and he had a limp on his left side.

Return to work

1. Prior to the accident, the plaintiff's past working experience was as a duty manager in a gym, a personal trainer, a football coach and a surveyor. His only employment as a labourer was with RTS Holdings. Prior to the accident, once the plaintiff returned to the United Kingdom from his backpacking adventure, he had planned to do one year of further study to become a physical education teacher at a secondary school. (T72.50).
2. The plaintiff's first post-accident employment occurred in September 2012, when he commenced work as a teacher's assistant at Abraham Guest High School working with children part time from 9.00 am to 3.00 pm. He was in the special needs department. He worked with children with learning difficulties, assisting the teacher to facilitate the children's learning. (T15.19-23). Some of the children were in 5th year. The plaintiff resigned because he felt quite vulnerable at times. While he enjoyed some aspects of the work, overall he did not really enjoy it. At this time he was walking around unaided but still had a lot of functional issues. He could not walk to work. He had to get a lift by car to and from work from his father or Roxy. The school was five minutes away by car. (T16.13-14).
3. In March 2013, the plaintiff returned to Australia for medico legal examinations. On 18 March 2013, he consulted Dr S Buckley who diagnosed the plaintiff with spinal cord injury with incomplete paraplegia, neuropathic bladder and other problems, a healed fractured ankle and fusion of the thoracolumbar spine.
4. On 19 March 2013, Dr H Ting, provided a vocational and functional assessment report. On 20 March 2013, the plaintiff consulted Dr R Higgan orthopaedic consultant. On 21 March 2013, he consulted Associate Professor M Fernside, a neurosurgeon. On 25 March 2013, the plaintiff consulted Dr A Durrell, a psychiatrist.
5. From 21 December 2012 until June 2013, the plaintiff did not undertake any paid employment. During cross examination he admitted that he could have worked during this time (T57.3-9) but he was "looking for work" and that he was "still in a position where [he] didn't really know what to do…" (T57.18-19).
6. From June/July 2013 until January 2014, the plaintiff volunteered at Manchester City Football Club coaching children. He felt frustrated trying to coach kids' football. He was not able to do a lot of the things that the kids could do, nor could he show them how to do things. He found it more physically demanding than what he thought it would be. (T17). He helped children from certain backgrounds and disabilities get involved in sport. (T7 .7-10). Due to his physical limitations and pain he felt vulnerable and for those reasons, he resigned.

General principles

1. An assessment of damages is to be done in accordance with the provisions of Part 2 of the Civil Liability Act. The burden upon the plaintiff to establish matters on the balance of probabilities is a reference to the legal onus of proof: see New South Wales v Doherty [2011] NSWCA 225 and Hirst v Sydney South West Area Health Service [2011] NSWSC 664.
2. Damages are awarded as compensation for the damage suffered. It is accepted, and clearly understood, that it is impossible to use money to restore to a condition of physical wholeness a person who has suffered great personal injury. Therefore, all the law can do is to restore the person who has suffered so far as money can do.
3. Damages cannot be perfect. In Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1, Dixon J stated at 13-14: "No doubt it is right to remember that the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damage in terms of money."
4. Damages are not intended to insure the plaintiff against every possible eventuality, nor to compensate for every loss the plaintiff may possibly have sustained: see Pamment v Pawelski [1949] HCA 43; (1949) 79 CLR 406 at 408-9 per Dixon J; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 562 at 585 per Gibbs and Stephen JJ.
5. Actual loss must be determined, but determination of actual loss is made even more difficult when the disabilities consequent upon the injuries suffered by a plaintiff are not clearly defined: see Government Insurance Office (NSW) v Rosniak [1992] Aust Torts Reports 81-178; (1992) 27 NSWLR 665 at 676.

Damages - Injuries and medical evidence

1. On 29 July 2016, rehabilitation physicians Professor Jones and Dr Buckley prepared a joint conclave report. (Ex E, 941). Professor Jones also provided a report and a supplementary report both dated 20 May 2015. (Ex E, 898, 907). Dr Buckley also provided two reports dated 17 May 2013 and 3 May 2015. (Ex E, 789, 806).
2. On 4 August 2016, Dr Mellick, consultant neurologist, Mr Soni, spinal cord injury specialist and Associate Professor Fearnside, neurosurgeon prepared an expert conclave report. (Ex E, 949). Dr Mellick provided a report dated 25 May 2015. (Ex E, 909). Associate Professor Fearnside provided two reports dated 21 March 2013 and 15 May 2015. Ex E, 770, 781). Mr Soni provided four reports dated 13 July 2011, 12 October 2011, 14 March 2012 and 3 April 2013. (Ex E, 657, 658, 660, 661).
3. On 30 August 2016, the psychiatrists Dr Vickery, Dr Akkerman and Dr Durrell prepared a conclave report. (Ex P). Dr Vickery provided a report dated 26 March 2013. (Ex E 866) Dr Akkerman provided a report dated 15 May 2015 and Dr Durrell provided two reports dated 30 July 2013 and 2 August 2015). Ex D, 821, 845).
4. The plaintiff's serious injuries are: 1. fracture dislocation T12/L1; 2. fractured transverse process of L1/L2; 3. undisplaced fracture of the distal left fibula; 4. incomplete spinal cord injury, partial loss of function of the right and left legs; and 5. neuropathic bladder, and other impairments.
5. On 18 March 2014, the plaintiff consulted Lorraine Moores, principal physiotherapist, at the Manchester and Salford Pain Centre. Ms Moores noted (Ex D, 520-21): "Mr Hitchen presents to the Pain Centre today with on-going back pain mainly on the left side of his lower back and left leg pain… He continues to see a Neuro Physiotherapist every week and is guided with strengthening exercise… … ... He has made excellent progress with his rehabilitation and we have encouraged him to continue with this in order to maintain his function, strength and flexibility. We advised that once pain has continued for more than six months or so it does tend to persist in the long term. Unfortunately there are no specific treatments which can take it away completely or make a significant change in intensity. ..."
6. The plaintiff came under the care of Cathy Field, neurological physiotherapist from Manchester Neuro Physio. In her report dated 27 May 2015 (Ex E, 736) Ms Field noted that the plaintiff had received weekly neurological physiotherapy since 28 August 2013.

Statistical information

1. The plaintiff was born in 1986 and at the time of trial was 30 years of age. On the life expectancy tables he would have a further 56 years. (It is noted in this regard that the United Kingdom Government Actuarial Tables provide for a slightly longer life expectancy and accordingly I have adopted the median life expectancy tables for Australia).
2. The multiplier on the 5% tables for 56 years amounts to 999.8.
3. The plaintiff has a further working life which ought be allowed to age 68 providing for a further 38 years with a multiplier of 1,030.7.

(1) Non economic loss

1. The assessment of non economic loss is governed by the provisions of the Civil Liability Act. The definition of a most extreme case pursuant to s 16 of the Civil Liability Act was discussed in Matthews v Dean (1990) 11 MVR 455; [1990] Aust Torts Reports 81-037 at 68,014; Southgate v Waterford [1990] Aust Torts Reports 81-065; (1990) 21 NSWLR 427 at 440 and Dell v Dalton (1991) 14 MVR 158; (1991) 23 NSWLR 528 at 433.
2. Non economic loss means any one or more of the following, pain and suffering; loss of amenities of life; loss or expectation of life; disfigurement: see Sutherland Shire Council v Major [2015] NSWCA 243.
3. It is not in dispute that the severity of the plaintiff's non economic loss is at least 15% of a most extreme case: s 16(1) of the Civil Liability Act. The current maximum amount is $594,000: s 17 of the Civil Liability Act and s 3 of the Civil Liability (Non-economic Loss) Order 2010 (NSW). The plaintiff submitted that the appropriate amount should be assessed at 75% ($445,500) while Strategic Formwork submitted it should be assessed at 40% ($237,500).
4. Senior counsel for Strategic Formwork submitted that although the plaintiff has not been able to pursue life with quite the same vigour as he had prior to the accident he continues to lead an active and fulfilling life albeit it with some restrictions and discomfort. He drew attention to the fact that the plaintiff has maintained his relationship with Roxy, travelled to Ibiza, Spain New York for a weekend and the Glastonbury Music festival. He was able to move to Manchester, complete a Masters degree, pursue a career and has social and sporting interests. While there may be some deterioration in the plaintiff's condition in his 60's, Strategic Formwork submitted that the plaintiff has the prospect of a fulfilling career, family, social and sporting life to look forward to.

The plaintiff's life pre and post accident

1. Prior to the accident, the plaintiff was a young man. He was healthy and extremely fit. He had no significant prior injuries. It was important to him to be physically active. He was a good football player and playing football was a high priority to him. He attended the gym every day and prior to backpacking was a full time gym instructor. He had completed a university degree and had intended, on his return to the United Kingdom, to become a school teacher. He has a good personality and was capable of having a successful career at whatever he chose to do.

After the accident

1. The plaintiff suffered serious injuries namely, fracture dislocation T12/L1; fractured transverse process of L1/L2; undisplaced fracture of the distal left fibula; incomplete spinal cord injury, partial loss of function of the right and left legs; neuropathic bladder, and other impairments. As result of these injuries the plaintiff has been rendered an incomplete paraplegic. He suffered extreme pain and still suffers from pain. The plaintiff through his determination and perseverance has made a remarkable recovery. However his post accident life is very different to his pre accident condition.
2. He spent months in hospital and then as an outpatient attending daily medical appointments that eventually tapered off. The plaintiff's condition has now stabilised but he suffers and will continue to suffer from low back pain, has reduced quadriceps muscle bulk, a loss of sensation and weakness of his left leg, is prone to falls and has bladder function and other problems.
3. While the plaintiff is able to work, when he arrives home from work and after the gym, he is tired and grumpy. If he goes out socially he also becomes tired. When tired, his walking changes, his left knee locks and he develops a limp.
4. While the plaintiff can play badminton, it causes him a lot of knee pain. He has taken up golf because it is something he can do with his friends and he is able to complete nine holes. He can no longer play football and he misses not being able to play and the social life centred around it. He is not able to ski. In other words, his sporting life is now very limited. He keeps himself in the best physical condition he can by going to the gym every day and having physiotherapy once a week.
5. While the plaintiff says that he could still be a PE teacher, he says that he is no longer able to be the kind of PE teacher that he wanted to be. His options for work are more limited. This is because he is unable to be involved in playing sport nor can he show the students what and how to do things. He has had to change his career plans and his working life will be cut short.
6. While currently he is a relatively young man as he ages there is a possibility he will develop post traumatic syringomyelia. There is a potential for the acceleration of degenerative changes in the adjacent segments to those that are fused namely T10/11 and L2/3. As the plaintiff has considerable weakness of his left leg together with wasting of the musculature, he is more at risk of developing osteoarthritic conditions in his left hip and knee. He is also more at risk of developing urinary tract infections from age 50 onwards.

(2) Past out of pocket expenses

1. The plaintiff claims $171,005.07 for past out of pocket expenses and interest on those expenses. It must be shown that the service was necessarily or reasonably required in consequence of the plaintiff's injuries: see H Luntz, Assessment of Damages for Personal Injury and Death (4th Edition, LexisNexis) at [4.2.1].
2. The plaintiff and Strategic Formwork agree on out of pocket expenses in the sum of $103,354.90 and travel expenses in the sum of $40,157.38. This equates to $143,512.28.
3. The NHS costing for the plaintiff's stay in Southport and Ormskirk hospital is £495 per day for a stay of 77 days. This sum totals £38,155 ($60,960.56). This account has not been paid (see invoice 7517734 dated 28 October 2016). I allow this amount.
4. The only disagreement between plaintiff and Strategic Formwork in relation to part of past travel expenses is the sum of $27,492.79. The disputed travel costs are in relation to return air flights and accommodation in Sydney of the plaintiff's parents while the plaintiff was in hospital and Roxy's return airfare. The plaintiff's parents paid for Roxy's airfare back to the United Kingdom. As their son was seriously injured in another country it is reasonable that they travelled from the United Kingdom to Australia to support their son (other than domestic assistance) and then returned to the United Kingdom together with Roxy. The incurring of these airfares and accommodation were necessary and reasonably required as a consequence of the plaintiff's injuries. I allow the sum of $27,492.79.
5. The total of the plaintiff's out of pocket expenses is $143,512.28 + $60,960.56 + $27,492.79 = $231,965.63.
6. I allow past out of pocket expenses at $231,965.63.

Economic loss

1. Section 12 of the Civil Liability Act provides for damages for past or future economic loss. It reads: "12 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages: (a) for past economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for future economic loss due to the deprivation or impairment of earning capacity, or … (3) For the purposes of this section, the amount of average weekly earnings at the date of an award is: (a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and that is, at that date, available to the court making the award, or …"
2. In Husher v Husher [1999[ HCA 47; (1999) 197 CLR 138, the Court expressed the general principle in relation to an award for economic loss at [7] as follows: "7 Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss'. But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if the injury had not been sustained."
3. Also in State of New South Wales v Moss (2000) 54 NSWLR 536 at 559, Heydon JA at [87] said: "87 The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility."

Football

1. The parties agree that the plaintiff should have an allowance for football payments, however they do not agree on the amount. The plaintiff enjoyed playing football and was good at it. The plaintiff submitted that an allowance should be made for the loss of his income as a football player which is between £30 ($52.50) and £50 ($87.51) for each week that he played. Allowing for a period of 26 weeks amounts to between $1,352 and $2,187.75 which if allowed for a period of five years amounts to a sum between $6,760 and $8,751. RTS Holdings makes an allowance for the plaintiff's football career in the sum of $15,000. Strategic Formwork accepted that the plaintiff should be entitled to lost football earnings as claimed however has not provided an allowance for sponsorships on the basis that the costs that they are likely meant to defray have not been incurred. Strategic Formwork submitted that the plaintiff should have an allowance of $12,700 for loss of football income as per his schedule. It is difficult to be precise as his remuneration is dependent upon the number of games he would have played, whether he incurred injury and the length and success of his career. Taking these factors into account, I allow the sum of $15,000.

Other past economic loss

1. The parties agree that the plaintiff should be entitled to past economic loss for the periods 2 May 2011 to January 2012, March 2012 to September 2012, October 2013 to February 2014 and February 2014 to date. However, the quantum of the plaintiff earnings are in dispute. The periods of past economic loss the defendants disagree upon are firstly from October 2012 to 20 October 2013; and secondly from February 2014 to September 2015.
2. The plaintiff has calculated past economic loss on two bases. The first is that after his trip to Australia he would have returned to the United Kingdom and could have continued working as he had done previously with Proscore Academy where he had previously earned £15 an hour for 37 hours a week.
3. The second or alternative basis is that the plaintiff submitted that he is entitled to a buffer that would allow for the past loss of income of between $175,000 and $200,000 that would take into consideration the reduction of income that he suffered at Fusion from October 2013.

Calculation of past economic loss

1. As previously stated, the amount of weekly wages that the plaintiff says that he is entitled to is in dispute for all periods of past economic loss. The plaintiff calculates his rate of earnings based on the income he earned with Impellan Group that is the sum of £1,659 per month. This equals $2,901.58 net per month or $674.78 net per week for the period of 164 weeks. This equates to the sum of $110,663.92.
2. Alternatively, he calculates his loss of past economic loss on the basis that average earnings as at 2016 for all employees shows a mean annual income of £37,123 or $1,247.53 gross per week. This amount is roughly equal to average weekly earnings in Australia of approximately $1,000 net per week. Rounding these periods down provides for a total period of 164 weeks. Accordingly, the plaintiff submitted that an amount of $1,000 net per week for the past economic loss should be allowed at $164,000.
3. The plaintiff also submitted that a diminution should be allowed for the past loss of income between $175,000 and $200,000, which then also takes into consideration the reduced income at Fusion that the plaintiff suffered after October 2013.

RTS Holdings' submissions

1. RTS Holdings submitted that the base salary should be $692 net per week. The plaintiff's earnings with RTS were at the rate of $20 gross per hour. This amounts to $800 per week, which at the 2011 tax rate produces a net amount of $692 per week. For the 68 week period from 2 May 2011 to 1 September 2012, RTS Holdings submitted that the plaintiff's allowance should equal the sum of $692 x 68 weeks, which equates to $47,056.
2. From 21 October 2013 until February 2014, the plaintiff worked part time. His earnings were an annual salary of £9,373 plus commission. He worked 25 hours per week. For the period 21 September 2013 to 1 February 2014, RTS Holdings allows the sum of $400 per week for 13 weeks which equals $5,200.
3. From February 2014 until September 2014 the plaintiff was not employed. RTS Holdings submitted the allowance for this 28 week period should be at the rate of $400 per week, which equates to $11,200.
4. RTS Holdings submitted that the limitation on the number of hours working as a neuro rehabilitation assistant at NHS is attributable to the availability of hours in the job not to the plaintiff's disability. If more hours were available the plaintiff said he could have worked the additional hours. Accordingly, for the 32 week period from 1 April 2016 to 29 August 2016 RTS Holdings makes an allowance for a base rate of $692 less $421 per week that the plaintiff earns at NHS, which amounts to $271. $271 x 32 weeks equates to the sum of $8,672.

Strategic formwork's submissions

1. Strategic Formwork submitted that the fact that the plaintiff was on a working holiday at the time of the accident should be taken into account when assessing his past economic loss.
2. Strategic Formwork's schedule allows $498 per week (based on the plaintiff's first full time salary since the accident of £15,000 per annum) discounted by 50% from May 2011 to January 2012 to take into account the fact that the plaintiff was not in full time employment at the time of his accident. This amounts to the sum of 37 weeks times $498 which equals $18,426, less 50% which equates to $9,213.
3. From March 2012 to August 2012, Strategic Formwork allows for a loss based on £10,000 per annum for a period of 26 weeks, which equates to the sum of $8,760.
4. Strategic Formwork submitted that although the plaintiff ceased work in December 2012, due to his physical injury he subsequently made a number of lifestyle decisions that have seen him out of work. From January 2013 to July 2013, Strategic allows £150 per week. At 26 weeks, this amounts to the sum of $6,727.
5. From 21 October 2013 to February 2014, when the plaintiff worked part time for Fusion, Strategic Formwork allows £120 per week, on the basis that the plaintiff's wage was reduced from £15,000 to £9,000 per annum for 8 weeks, which equals the sum of $1,656. From February 2014 to August 2014, Strategic Formwork allows £120 per week for 26 weeks, which equals the sum of $5,382.
6. For the period November 2015 to date, Strategic Formwork submitted that as the plaintiff was working fulltime as a recruitment consultant there should be a nil allowance.
7. Strategic Formwork submitted that the total allowance for past economic loss amounts to the sum of $44,438.

(1) 2 May 2011 to 1 September 2012

1. Both Strategic Formwork and RTS Holdings agree that the plaintiff should have some allowance for the period from the date of the accident to September 2012. However, I disagree with both of their approaches to the calculations. I disagree with the approach taken by RTS Holdings that the plaintiff's past economic loss for this period should be assessed on his wages for the casual job he took while backpacking in Australia. I also disagree with Strategic Formworks' approach for this period as its calculations are based on the premise of the plaintiff's first full time salary since the accident is £15,000 per annum discounted by 50% to take account of the fact that the plaintiff was not in full time employment at the time of his accident. The plaintiff's wage loss for over eight months should not be based on his working casually at the date of the accident. The accident occurred when he was travelling as a backpacker and this casual employment was only while he had taken a break from his usual employment in England. In my view it was more likely than not that but for the accident, on his return to the United Kingdom the plaintiff would have resumed work at Proscore Academy or undertaken some similar type of work at the same wage until he decided what work he wanted to do in the future.
2. The plaintiff was not fit for work and had no earning capacity during this period. I am satisfied that the plaintiff would have remained in Australia for one more month after 2 May 2011, the date of the accident, (he had already travelled through Asia) before returning to the United Kingdom. It is most likely that he would have returned to a similar type of work that he was doing prior to his backpacking adventure. Therefore he should be entitled to an allowance reflecting his inability to work from 2 June 2011 to 1 September 2012 on a full time basis at the rate of $674.78 per week (the net amount he earned with Impellan Group) for 66 weeks. This equates to $44,535.48. I allow this amount.

(2) September 2012 to 20 December 2012

1. From September 2012 the plaintiff worked as a teacher's assistant at Abraham Guest High School work from 9.00 am to 3.00 pm. He resigned on 20 December 2012 as he felt vulnerable due to his injuries. It is not clear how much he earned during this period but it appears he was working on a voluntary basis.
2. RTS Holdings and Strategic Formwork submitted that the plaintiff should have a nil allowance for this period as there is no evidence of the plaintiff' earnings. Although there are no records of evidence of the plaintiff's earnings for this period, in my view he was working as best as he could during this period and it served as a way to re-establish himself in employment.
3. I will calculate the plaintiff's past loss of earning for this period on the same basis as above, at $674.78 x 16 that equates to $10,796.48. I allow this amount.

(3) 21 December 2012 until July 2013

1. From 21 December 2012 until July 2013, the plaintiff did not undertake any paid employment. During cross examination he admitted that he could have worked during this time (T57.3-9) but he was "looking for work" and that he was "still in a position where [he] didn't really know what to do…" (T57.18-19).
2. RTS Holdings did not make an allowance for this period on the basis that the plaintiff was not seeking employment. Strategic Formwork made an allowance of $6,727 by calculation of £150 per week x 1.725 AUD for 26 weeks.
3. I allow the amount of $6,727 as this amount is reasonable.

(4) August 2013 to 21 October 2013

1. Both RTS Holdings and Strategic Formwork do not make an allowance for past economic loss for this period as the plaintiff was working full time at Fusion during this time and earning £15,000 per annum which equates to $24,532 ÷ 52 = $471.77 gross per week (approximately $450 net pet week). I agree with the defendants' submissions. Hence, I do not make an allowance for past economic loss for this period.

(5) 21 October 2013 to February 2014

1. From 21 October 2013 until February 2014, the plaintiff suffered a reduced earning capacity in that his income at Fusion was reduced from £15,000 per annum to £9,373 per annum. The plaintiff was having difficulty coping due to his injuries so he reduced his hours to 25 hour per week. Had it not been for the injuries he suffered in the accident, he would have been more than capable of working full time.
2. RTS Holdings submitted that the plaintiff be allowed $5,200 on the basis of $400 per week for 13 weeks. Strategic Formwork submitted that the plaintiff be allowed $1,656 on £120 per week for 9 weeks.
3. The plaintiff suffered a £5,627 income reduction for this period. If he had not had the accident he would have continued to work fulltime. Hence, I allow the sum of £5,627 which converts to $9,208.66.

(6) From February 2014 to September 2015

1. During this period the plaintiff was not employed. RTS submitted that the plaintiff be allowed 28 weeks at $400 per week which totalled $11,200 for the period of February 2014 until September 2014. Strategic Formwork submitted that the plaintiff should be awarded £120 per week for 26 weeks which totalled $5,382 for the period of February 2014 until August 2014.
2. For the duration of the plaintiff's Master's degree, both Strategic Formwork and RTS Holdings submitted that the plaintiff should have nil allowance when the plaintiff was undertaking his studies.
3. As far as the period between February 2014 and September 2015 is concerned, the plaintiff submitted that his ability to work was restricted due to the nature of the rehabilitation he was undergoing while working fulltime as he would be restricted in his exercise program which would result in further deterioration of his condition. In the few years after his accident, the plaintiff had focused and was diligent in doing whatever it took to improve his physical health. In my view, it is reasonable that after he sustained his serious injuries, he was having difficulty coping at work and needed time to come to terms with what his realistic future career options would be. He gained qualifications that would assist him gain employment. After he sustained his injuries, it was not possible for him to work fulltime and study at university on a part time basis. I note that the plaintiff has not sought to be compensated for payment of his university fees. I make an allowance of $36,490.

(9) November 2015 to April 2016

1. For the period November 2015 to the trial date, both Strategic Formwork and RTS Holdings submitted that as the plaintiff was working fulltime as a recruitment consultant there should be a nil allowance.
2. On 18 November 2015, the plaintiff commenced working for Impellan Group (SRG) on a fulltime basis as a recruitment consultant, where he received the sum of £1,833 per month. At this time he was struggling to find a job. They offered him a role within biomedical science but it actually turned out that it was more in line with the chemical industry. He did not have any physical problem in carrying out that job but it was not really what he wanted to do. (T22). The plaintiff did not make any submissions for an allowance for this period. The plaintiff was earning a salary on a full time basis hence I make no allowance for this period.

(10) April 2016 to 17 February 2017

1. In April 2016, the plaintiff ceased working with Impellan Group (SRG) and commenced his current part time employment as a neuro rehabilitation assistant at Bridgewater Community Healthcare, National Health Service (NHS) (Neuroscience) working 30 hours per week, earning approximately £245 ($421) per week. He currently enjoys this work. He supports physiotherapists, speech and language occupational therapists, dealing with patients who have had neurological issues or impairments. (T23). There are aspects of the work he cannot do, such as stabilising a person's knee on the floor, he cannot kneel down as he has no core stability and cannot work on the floor. He attends the gym every day and once on the weekend to keep him as physically fit as he can be. (T24).
2. RTS Holdings submitted that the limitation on the number of hours working as a neuro rehabilitation assistant at NHS is attributable to the availability of hours in the job not to the plaintiff's disability. If more hours were available the plaintiff said he could work the additional hours. Accordingly, for the 46 week period from 1 April 2016 to 10 February 2017 RTS Holdings makes an allowance for a base rate of $692 less $421 per week of the amount that the plaintiff earns at NHS, which amounts to $271. $271 x 46 weeks equates to the sum of $12,466. Strategic Formwork did not make an allowance for this period on the basis that the plaintiff had the capacity to work full time. I agree with RTS Holdings that the calculation for past economic loss should be calculated at $692 less $421 per week of the amount that the plaintiff earns at NHS, which amounts to $271. However, I do not agree with the period submitted by RTS Holdings as they only accounted for past economic loss up until 29 August 2016. I allow past economic loss until 17 February 2017 being the judgment date. This amounts to $12,466.
3. The total past economic loss is $44,535.48 + $10,796.48 + $6,727 + $9,208.66 + $36,490 + $12,466 = $120,223.62.

Superannuation

1. In Australia superannuation is allowed at 11%. The United Kingdom workplace pension information sheet states that workers are currently required to pay 0.8% of their income and employers are required to pay 1% of the employee's income. In 2018 these payments will increase to 4% and 3%, respectively, equalling a combined total of 7%. Currently, the UK government also pays 0.2% by way of a tax credit, which will increase to 1% in 2018.

Past superannuation

1. Both the plaintiff and RTS Holdings submitted that past superannuation should be allowed at 11%. Strategic Formwork has made no allowance for past superannuation and submitted that there is no evidence of compulsory employer contribution. The plaintiff submitted that based on the average Australian earnings of $1,000 per week for the total period.
2. I calculate past superannuation on past economic loss calculated above at 11%. That equates to the sum of $13,224.60.

Fox v Wood

1. Fox v Wood is also recoverable and is agreed as between the plaintiff and RTS Holdings at $34,000.

Future economic loss

1. Claims for future economic loss are governed by s 13 of the Civil Liability Act. It reads: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
2. In summary, s 13(1) provides that the Court cannot award damages "unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury."

Buffer?

1. The plaintiff submitted that the assessment of future economic loss should be based on a diminution in earning capacity of between $400,000 and $500,000. The plaintiff submitted that future economic loss needs to consider the plaintiff's loss of income in his chosen career but at the same time balance out his movement into other careers and take into consideration his reduced earning capacity due to the severe injuries sustained in the said accident. The plaintiff's opportunities with regard to his education standards and his determination is reflected by not only his rehabilitation but his past work history. This would dictate that the plaintiff was likely to move into an area of income earning capacity which was above average. The plaintiff also submitted that according to the rehabilitation and neurological conclave reports, he would suffer a severe reduction in income and a shortening of his working life by between 5 and 15 years. Further, the plaintiff submitted that based on the report of the neurological experts and given the plaintiff's risk of future degenerative changes within his spine and the wasting of his left leg together there would be ongoing need for constant exercise and rehabilitation by way of neurophysiotherapy.
2. RTS Holdings submitted that the plaintiff's qualifications, skills and experience are such that he should not encounter any difficulty in obtaining employment in the open labour market.
3. Strategic Formwork submitted that the plaintiff is fit for his current employment and at the present time and into the future the plaintiff's disabilities are such that until he reaches the age of at least 50 any allowance for future economic loss should be modest.
4. Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99 concerns the award of a "buffer" or as it sometimes is known, "a cushion". Basten JA (with whom McColl and Macfarlan JJA agreed) stated at [84]: "[84] As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that 'a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future', but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present."

After the plaintiff reaches 50

1. The plaintiff submitted that the reduction of income and shortening of his working life must be taken into account along with the risk of future degenerative changes within the spine at adjacent levels to the fusion and the wasting of his left leg, together with his ongoing need to engage in constant exercise and rehabilitation by way of neuro physiotherapy.
2. Strategic Formwork's schedule provides for a staggered work capacity and retirement. Strategic Formwork submitted that until the age of 50, the plaintiff would be employed full time. The plaintiff will then work part time for 5 years from age 50 at 50% of the fulltime rate of $1,000. Strategic Formwork submitted that the plaintiff would then retire at 55 years and has provided an allowance for 10 years until the age of 65 at $1,000 per week and an allowance of $30,000 for periods of unemployment and additional sick days.
3. With respect to the plaintiff's remaining working life, RTS Holdings also provided for a staggered work capacity from 50 years. RTS Holdings submitted that on the balance of probabilities the plaintiff's working life will be reduced to working part time for the last 10 years of his normal working life, that is, between the ages of 55 and 65. RTS Holdings also make an allowance of 25 weeks at $300 per week x 743.6 x 85% which equals $192,169 plus 10 years at $600 per week x 412.9 x 85% which equals $210,579. $192,169 + $210,579 = $402,747. RTS Holdings submitted that the plaintiff's total amount of future earning capacity between 55 and 65 is $402,747.
4. It is my view that Strategic Formworks' submissions as to the plaintiff's staggered working capability until 50 years is reasonable but I disagree with the quantum. I have based the plaintiff's earning on $1,200 net per week and that he would have worked until the age of 67.
5. Between 50 and 55, the plaintiff will work part time at 50% of the full time rate of $1,200 net per week. It is more likely that the plaintiff will then retire at 55 years of age. An allowance from 55 to 67 should be made at $1,200 net per week. The neurologists agree that the plaintiff will require additional sick leave and annual leave above those that are normally required and his job choices are limited so as the plaintiff ages he may experience some period of unemployment. A future allowance of $50,000 should be made for periods of unemployment and additional sick leave. I allow the amount $212, 622.84. Hence the total allowance for future economic loss is $491,652.00.

Future superannuation

1. In relation to future loss of superannuation, Strategic Formwork submitted there is no evidence that the plaintiff would receive the benefit of employer contributions to superannuation in the United Kingdom so no allowance should be made.
2. The plaintiff and RTS Holdings have made an allowance for future superannuation at 13.5%.
3. I allow future economic loss at 13.5%.

Past domestic care

1. Section 15 of the Civil Liability Act reads: "15 Damages for gratuitous attendant care services: general (1) In this section: "attendant care services" means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. "gratuitous attendant care services" means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. …"
2. Strategic Formwork submitted that there was undoubtedly an intense period of care provided, however given the plaintiff's return to Australia eight months after the accident, it must have been relatively short in duration. Accordingly, Strategic Formwork has submitted that there should be an allowance of 6 hours per week for six months at a rate of $25.68 per hour which equates to the sum of $4,006.
3. The plaintiff submitted that he has required discrete periods of domestic assistance which has been provided on a gratuitous basis as follows: 1. From 4 May 2011 to 25 June 2011 (when he was discharged from Prince of Wales hospital), being 7.5 weeks at a minimum of 5 hours per day at the statutory rate of $27 per hour equals $7,087.50. The evidence of the plaintiff's parents and Roxy is that they performed more domestic care while the plaintiff was in hospital, leaving aside the emotional support. 2. From 26 June 2011 for 2 weeks for 5 hours per day at the rate of $27 per hour equals $1,890. This period reflects when the plaintiff was an inpatient at Southport & Ormskirk hospital. Once again, the evidence of the plaintiff's parents and Roxy is that more domestic assistance was performed by them, leaving aside the emotion support. 3. From 10 July 2011 to 9 September 2011 at 10 hours per week or 2 hours per day for 5 days a week at the rate of $27.00 per hour for 8.7 weeks equals $2,349. This was when the plaintiff was attending Northwestern Regional Spinal Injury Centre. His parents or Roxy were driving and staying with the plaintiff while he spent those days as an outpatient. I allow this amount of $2,349. 4. From 10 September 2011 to January 2012 at 7 hours per week for 16 weeks at the rate of $27.00 per hour equals $3,024.00. Total: $14,350.50.

Future domestic assistance

1. The plaintiff submitted he should have an allowance for the following future domestic assistance on a commercial basis: 1. Handyman for 4 hours per month at £15 per hour ($26.02): $24,013.65. 2. Domestic assistance for 6 hours per month to age 60 at £12 ($20.81) per hour: $28,804.23. 3. From age 60 at 3 hours per week at $20.81 per hour for 26 years and deferred: $11,085.67. Total: $63,903.55.
2. Strategic Formwork submitted that the plaintiff is not entitled to an allowance for future domestic assistance on the basis that the joint neurologists have provided for only 2.125 hours per week, which does not meet the threshold in s 15 of the Civil Liability Act.
3. At present the plaintiff is managing his domestic chores but requires assistance with the heavier chores which could aggravate his low back pain. The neurologists anticipate that his low back pain will continue and estimate that the plaintiff will need assistance ranging from four to six hours monthly. The neurologists also agree that the plaintiff will require assistance with maintenance for DIY activities around the home. Assuming that the plaintiff lives in a detached cottage they estimate that three to four hours per month would be appropriate.
4. Roxy gave evidence that she does the hoovering, washing and mopping because it requires the plaintiff to bend. The plaintiff will help out with the cleaning, such as cleaning the kitchen. They share the cooking. (T85). If the plaintiff gets down to do things low on the floor, Roxy has to pull him up. They currently do not do a huge amount of DIY in their flat.
5. For the next few years it is not likely that the plaintiff will require additional handyman or domestic assistance. However, as he ages, he will experience accelerated spinal ageing and his capacity for activities of daily living will be slower. Therefore, there is a possibility that he will require additional assistance, particular handyman assistance, but also possibly domestic assistance, which is likely to be required in his 60's. It is estimated as he gets towards his 60's these activities and his needs will increase. If the plaintiff had not suffered the injuries he did in the accident he would not have required any domestic assistance. It is my view that the plaintiff's claim for future domestic care obtained on a commercial basis is reasonable. I allow the sum of $63,903.55 for future domestic assistance on a commercial basis.

Housing adjustments

1. The plaintiff claims an allowance for non slip flooring and grab rails together with housing improvements at $10,000. Strategic Formwork submitted that there should be no allowance for housing adjustments as they are not reasonably necessary and the plaintiff has provided no evidence as to cost.
2. The neurologists agree that due to the weakness and wasting of the plaintiff's left leg, he is vulnerable to slipping on a wet floor and non slip flooring and grab rails in the bathroom would lessen the chance of further injury.
3. I allow the sum of $10,000 for the provision of non slip flooring and grab rails, in accordance with the neurologists' opinion. It is my view that the sum of $10,000 is a reasonable amount for these items.

Travel

1. The plaintiff and Strategic Formwork agree that an allowance should be made for travel. The plaintiff claims an allowance for premium economy for trips between two and six hours. The plaintiff claims business class for trips of six hours or more and assistance with baggage totalling $40,000. Strategic Formwork allows an amount of $5,000 once every five years, amounting to $20 per week until age 75. This totals $16,156.
2. The sum of $40,000 is reasonable and the method of travelling is in accordance with the opinions of the rehabilitation experts. I allow the sum of $40,000.

Automatic vehicle

1. The plaintiff claims the amount of $14,000, comprising of the cost of an automatic vehicle together with additional costs over his life. Strategic Formwork submitted that the overall evidence does not support a claim for a vehicle.
2. The plaintiff's evidence is that an automatic car would be helpful. While he currently drives 15 minutes to visit a patient for work and 15 minutes back to the office, when he has tried to drive for a longer period he says that using the clutch is tiring because he has a lack of sensation, he sometimes gets a buckling feeling in his left leg. It is my view that due to the injuries he sustained, he requires an automatic car. This also takes into account for the latter years, when his condition will deteriorate. I allow the sum of $14,000.

Taylor v Walker allowance

1. The plaintiff submitted that the imprecise nature of a number of the components of future out of pocket expenses are totally dependent upon the manner in which the plaintiff's injuries progress. This is in regards to either the degenerative changes referred to in the rehabilitation and neurological conclave reports, together with the risks of future equipment as referred to in the report of Mr Soni dated 3 April 2013. As a result, it is appropriate to deal with the future treatment costs by way of a global sum: see Taylor v Walker [2016] NSWCA 100. Accordingly, the plaintiff says a future allowance ought be made for all of the components of $200,000 to $250,000.
2. Strategic Formwork disagreed and submitted that there should be no Taylor v Walker [2016] NSWCA 100 allowance because there is no imprecision since all matters have been addressed in the joint reports.
3. In Taylor v Walker, Ward JA (with whom Payne JA & Harrison J agreed) in relation to future out of pocket expenses stated at [21]: "21 In my opinion no error is shown in the basis on which her Honour approached [future out of pocket expenses]. The fact that certain items were able, on the evidence, to be costed but others were not makes it appropriate for her Honour to have awarded a global sum to take into account the various matters raised in the evidence and to which her Honour referred. There was no inconsistency in so doing. The award of a global sum was a course open to her Honour (see Nominal Defendant v Lane [2004] NSWCA 405; Penrith City Council v Parks [2004] NSWCA 201). Ground 1 is not made out."
4. It is my view that a Taylor v Walker allowance should not be made because future out of pocket expenses can be specifically ascertained. Hence, I disallow this claim.

Specific future out of pocket expenses

1. With regard to future out of pocket expenses, the plaintiff and Strategic Formwork agree on the following: 1. Attendance upon occupational therapist from age 60 that equates to $2,000; and attendance upon spinal physician twice per annum at $225 that equates to $8,648.27. I allow both these amounts.
2. The plaintiff and Strategic Formwork disagree on the following future out of pocket expenses:

Neurophysiotherapy and physiotherapy

1. The plaintiff relied upon the report of Mr Soni dated 3 April 2013. Mr Soni reported that physiotherapy would be vital, especially in the latter years of the plaintiff's life, as he is likely to suffer with early wear and tear related pain, stiffness and restriction of movement of his upper limbs. He considered one physiotherapy session once per fortnight for the next five years and the same for the plaintiff's latter years of life.
2. The plaintiff claims $47,026.07. This comprises of neurophysiotherapy consultations at £85 per consultation ($146.88) once per week for five years and thereafter six times per annum for 51 years deferred for five years equals $13,023.30 making a total of $47,026.07.
3. Strategic Formwork submitted this amount should be $16,886, as per Dr Buckley's report dated 17 May 2013. Dr Buckley was of the view that due to the likelihood of exacerbations of pain the plaintiff will require six physiotherapy treatments annually; that is three treatments weekly for two weeks. Professor Jones does not believe that the plaintiff requires hands on therapy.
4. The plaintiff finds these sessions helpful. He has muscle atrophy in his quadriceps and weakness around his left hip, hip flexors and weakness in his trans-abs and paraspinal muscles. The plaintiff finds this therapy beneficial and still consults Ms Field once a week. The neurologists agree that the plaintiff should undertake exercise and light physical work such as that required by an exercise physiologist and that he should have available access to a physiotherapist who could advise him to avoid over exertion and maintain his stability due to the fact that he is more likely to sustain minor injuries from such as falls.
5. In my view, the views of the plaintiff, the neurologists and Mr Soni who has been treating the plaintiff should be preferred over the reports of Dr Buckley and Professor Jones. I allow the sum of $47,026.07 for neurophysiotherapy and physiotherapy

Profiling bed

1. The plaintiff says he should have a profiling bed ($8,801.07), replaced every 10 years plus maintenance, which equals $25,330.65. Strategic Formwork says there should be no allowance for this, as the overall evidence does not support the plaintiff's claim. The plaintiff has not provided any evidence of the need for or cost of a profiling bed. Hence, I disallow this item.

Future medication

1. The plaintiff says he should have an allowance for medication at £16 ($27.78) per month to age 50 = $4,271.62 and thereafter at £20.00 ($34.73) for 26 years but deferred for 20 years, which equals $2,309.70. This amounts to $6,581.31. Strategic Formwork says the plaintiff should have an allowance for amitriptyline and codeine at £16 x 1.725, 6 weekly = $4,583. I allow the sum of $6,581.31 as this takes into account that additional medication may be required in the future.

Odstock device

1. The parties agree that the plaintiff should have an allowance for an Odstock Wireless Electrical Stimulating device at £2,795 ($4,847.45). Strategic Formwork has not made an allowance for annual costs of £750.00 ($1,295.96). The total amount the plaintiff seeks, including annuals costs, is the sum of $29,744.64. The total amount of allowance Strategic Formwork has provided is $4,700. It is not much good having this device but not maintaining it. Hence, I allow the sum of $29,744.64.

General practitioners and urological treatment

1. The plaintiff also claims allowances for attendance upon general practitioners four times per annum for 30 years and thereafter from age 60 for a further 26 years at 12 sessions per annum. The rehabilitation physicians agree the plaintiff should consult his general practitioner four times per annum. (Ex E, 942).
2. Strategic Formwork says that the allowance for attendance upon general practitioners should be $6,515, as per Dr Buckley's report dated 3 July 2015, which recommends four times annually at $73 per visit. (Ex E, 813) Strategic Formwork submitted that the allowance for urological treatment/bladder care should be $4,000.
3. The rehabilitation physicians also agree that the plaintiff needs a renal ultrasound every two years. (Ex E, 942). Dr Buckley recommends regular review of the plaintiff's bladder function and an annual renal ultrasound, with an IVP (Intravenous Pyelogram) every three years thereafter and an annual urological assessment by a specialist urologist. (Ex E, 796).
4. As the plaintiff ages, his condition will deteriorate so I make an allowance for this. I allow the sums claimed by the plaintiff for general practitioner consultations as being reasonable, $73 x 4 = $292 x 56 years equates to $196,352. I allow the sum of $365 for a renal ultrasound every two years, $365 x 28 years equates to $10,220. I allow the sum of $495 every three years for a IVP which equals $495 x 19 years = $9,405; and I allow the sum of $85 for an annual urological assessment by a specialist urologist which equals 85 x 56 years = $4,760. I allow the sum of $40,737 for general practitioners and urological specialists. (Ex E 813).

Costs

1. By consent, the parties have requested that the Court refrain from making any costs orders until they have had an opportunity to be heard on this issue. (see letter LawAdvice, 26/10/2016).

Judgment That the defendants are to pay the plaintiff the sum of $1,672,626.19. The Court orders that: 1. Costs are reserved.

The Court notes that: 1. The work injury damage amount is in the sum of $740,493.

ON 30 MAY 2017 BY CONSENT AMENDMENTS AND COSTS ORDERS WERE MADE AS FOLLOWS:

The Court notes in relation to paragraph 366: (1) Verdict and judgment for the plaintiff as against Strategic Formwork Pty Ltd in the sum of $1,299,773. (2) Verdict and judgment for the plaintiff as against RTS Holdings Pty Ltd in the sum of $724,989. (3) As between RTS Holdings Pty Ltd (cross claimant) and Strategic Formwork Pty Ltd (cross defendant) verdict for RTS Holdings Pty Ltd as against Strategic Formwork Pty Ltd in the sum of $200,472 with each party to pay its and/or their own costs. (4) In relation to Strategic Formwork Pty Ltd (cross claimant) and RTS Holdings Pty Ltd (cross defendant) the cross claim is dismissed and each party is to pay its and/or their own costs. (5) The work injury damage amount is in the sum of $724,989.

The Court orders that: (6) Strategic Formwork Pty Ltd is to pay the plaintiff's costs on an ordinary basis. (7) The plaintiff and RTS Holdings Pty Ltd are to pay their/its own costs. Schedule of Damages Non economic loss - 70% 423,500.00 Past out of pocket expenses 231,965.63 Future out of pocket expenses Nil • Taylor v Walker allowance 10,648.27 • Physician and occupational therapist 47,026.07 • Neurophysiotherapy and physiotherapy Nil • Profiling Bed 6,581.31 • Future medication 29,744.64 • Odstock device 40,737.00 • General Practitioner & Urological Past economic loss 15,000.00 • Football (past and future economic loss) 120,223.62 • Past economic loss Fox v Wood 34,000.00 Past superannuation 13,244.60 Future economic loss $279,029.16 • Up until age 50 $212,622.84 491,652.00 • After the plaintiff reaches 50 Future superannuation 66,373.00 Past domestic assistance 14,026.50 Future domestic assistance 63,903.55 Housing equipment 10,000.00 Travel expenses 40,000.00 Automatic vehicle 14,000.00 Total $1,672,626.19

Amendments 02 March 2017 - Removed extra semi colon from coversheet 02 March 2017 - Coversheet - amended counsel's name from to Calloway to Callaway 30 May 2017 - Paragraph 366 amended 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: 30 May 2017