Hobby v Workers Compensation Nominal Insurer

The plaintiff's evidence

1. The plaintiff, who was born in 1973, completed the High School Certificate at Blayney High School in 1991 and thereafter has held a series of labouring jobs in premises such as an abattoir, a tannery and a timber mill. He has always been a manual worker, accepting heavy labouring jobs and, although regularly employed, has worked almost entirely in this sphere of work.
2. The plaintiff commenced employment with the defendant as a saw operator in April 2011, about six weeks before the date of the accident. His knowledge of the system of work and the functioning of the machinery relates only to what he learned during this limited period. However, the plaintiff's supervisor, Mr Parker, who was also called to give evidence by the plaintiff, had a much longer acquaintance both with the circumstances in which the machine the plaintiff was operating was purchased and installed, as well as the work system, and I will set out this information from his evidence at this part of my judgment.
3. Mr Parker told the court that the machine in question had arrived from Canada approximately four weeks before the plaintiff commenced his employment, and had given trouble from the first (in other words, prior to the plaintiff's employment). He identified those problems as including the logs being restricted in their movement by posts on the machinery, the blades striking the guide post and problems when the machinery jammed, which meant that the machinery had to be stopped so that the logs could be brought back. It was necessary to ensure that the feeding system would not "explode" because if logs and blades broke away at speed from the machine, in a work area he said was only twice the size of the courtroom (where up to 15 people were working), everyone in the premises would be at risk. There were constant problems with the need to stop and repair the blades on an hourly basis. If the blade suffered wear as a result of one of these blockages, it would be necessary to place it; Mr Parker described the need for the blade to be inspected on such occasions as being "every hour".
4. Prior to the plaintiff's commencement of employment, Mr Parker had already spoken to the business owner, Mr Slattery, "several times a day" about the problems. He had additionally spent several hours on the telephone to the manufacturers in Canada. He had pointed out to Mr Slattery that it would be 10 minutes work to solder a set of stairs to the machine to enable the saw operator to inspect the problem when the saw broke down during operation, which was occurring constantly.
5. The plaintiff described how he commenced work with no training on the machine, and no assistance or advice from Mr Slattery with these problems. Like Mr Parker, he spoke to Mr Slattery about the problems, and suggested solutions. In particular, the plaintiff told Mr Slattery, as he repeated later to the expert retained in these proceedings on his behalf (Exhibit C, paragraph 33), that there should be a walkway or railing to get up on the platform deck but those requests had not been acted upon.
6. Mr Hobby, in cross-examination, identified, from some black and white photocopies shown to him by counsel for the defendant, the machinery in question. This enabled a video of the machinery in question to be found on YouTube and played. The plaintiff watched this video from the witness box and carefully explained, as the machine could be seen cutting logs, the workings of the machine, noting (as did Mr Parker in his later evidence) that the machine in the YouTube video clip is located on the ground, whereas the machine on which the plaintiff was injured was elevated. This elevation added to the difficulties. Even with the machine on the ground, the person shown standing in the position occupied by the plaintiff in the photograph shown to him was just standing on the wooden plank which was "not secured".
7. The plaintiff used the electric saw to cut wood in accordance with measurement specifications given by the mill's customers. However, this presented further difficulties, because the machine (which had been ordered from Canada) had its settings in imperial measurements, whereas the Australian customer requirements were always in metric measurements. This meant that the computer program settings had to be reset constantly.
8. The plaintiff said he reported all these problems to the manager, Mr Slattery. They were a matter of common knowledge at the mill, where the machine was jokingly called "the death trap". The plaintiff was essentially told to do the best he could, and left to operate the machine without any further instructions, or supervision of any specific nature, from Mr Slattery.
9. Not surprisingly, the plaintiff was having difficulties operating the saw from almost the very first. He was required to work at speed and if something went wrong, the log had to be wound back to the most convenient and closest stopping point, to avoid the blade going the length of the track (which could dull or damage the blade). This meant climbing over part of the machinery to get to the blade, and this was the immediate triggering factor to the plaintiff's accident.

The accident

1. On the day in question the plaintiff started cutting the first log which was very large, and set what he called the "back post". When the log was in place, he set the depth limit for the saw and started cutting. The saw cut for a certain distance and then stopped at the metal post. The problem was that the saw was not working properly; had the saw been working properly, it would have missed the metal post which appeared to have caused it to jam.
2. The plaintiff got up and walked onto the rollers towards the deck. He put his right foot on a portion of the framework above the big right roller and put another foot onto the timber. This timber slab gave way, rolled and took the plaintiff's feet out. He fell in between two big rollers with his left arm hooked up to the top deck. This meant he fell through the gap and onto the floor which was about 1.8 to 2 metres away. He described a reference in the work safety report to his having fallen on the rollers as "wrong".
3. The plaintiff is not particularly articulate, and a more helpful description may be gained from the description of the accident in the expert report as follows: "27. On the day of injury, whilst the Plaintiff was operating the saw the saw blade struck one of the back posts and jammed. When the saw blade struck a back post the saw had to be reversed in order to free the saw blade and also to inspect the saw to ensure it was not damaged. The Plaintiff explained that the operation of the saw could not recommence until such time as the saw blade had been inspected and verified as defect free. 28. In order to inspect the saw blade the Plaintiff retracted the saw blade and shut down the saw by use of the operator's controls. To access the saw blade and to undertake the inspection the Plaintiff was required to climb up onto the rollers of the infeed deck. The Plaintiff explained that there were no walkways available for use and that access to the saw blade was by way of the infeed deck where the Plaintiff would make his way along the deck in order to reach the blade. 29. The Plaintiff explained that as he made his way to climb up onto the rollers of the infeed deck in order to undertake the inspection of the saw blade that he was required to place his left foot onto a slab of timber that was positioned on the rollers. 30. The Plaintiff explained that as he went to climb up onto the infeed deck that he placed his left foot on a timber slab which was adjacent to the sloped surface. As he placed his left foot onto the slab in order to stand up on the deck and bring his right foot forward to traverse the deck the slab moved and commenced to slide down the inclined surface. The action of the slab moving and sliding initiated the fall of the Plaintiff. The Plaintiff explained that at the time that the slab of timber moved he was approximately 2 metres above ground below. 31. The Plaintiff explained that as he fell down the inclined surface he reached out with his arm in order to arrest his fall however, fell landing on the rollers with his left arm outstretched and as a consequence sustained injury to his left shoulder. 32. The Plaintiff explained that he fell as previously detailed and was helped up from that position by the supervisor who observed the Plaintiff's fall."
4. Mr Parker's evidence, which is set out below, was substantially consistent with the plaintiff's description of his accident. There are minor differences in their evidence in relation to the machine structure (in that Mr Parker has referred to a log feeder being in the way as the principal reason why the plaintiff could not access the machinery in the manner described by the defendant), but this has no relevance to the mechanics of the accident.

The plaintiff's cross-examination

1. In cross-examination it was put to the plaintiff that he should have seen a laser beam which indicated where the saw would cut into the wood and that if he had seen this he would have realised where the saw was cutting, and stopped the machine. The plaintiff responded that he did not see the laser beam from his position because it was sometimes not possible to do so, as he was several metres away from where the saw was cutting. Additionally, he would have needed to see it before he dropped.
2. This portion of the cross-examination was objected to pursuant to s 318(1) Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act") on the basis that no such claim had been included either in the pre-filing defence (assuming this was possible), which was not agreed to, in the defence filed in these proceedings. As a result, the plaintiff's expert had prepared a report which does not refer to the role of the laser.
3. Mr Rickard submitted that it was still capable of being "evidence", although conceding that it had not been referred to in the pre-filing document.
4. The circumstances in which parties should be held to the pre-filing pleading are set out by the New South Wales Court of Appeal in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250, and I rejected this line of questioning on that basis. I additionally note, however, that if I were to consider this evidence on its merits, there is no explanation as to how this laser light being seen could have prevented the accident. Whether the plaintiff saw in advance that the saw was about to jam, or it actually jammed, he still had to climb over the machinery. Additionally, as the plaintiff had already stated, it was sometimes not possible to see the laser beam because it was several metres away from where he was standing. The laser light evidence is thus of no assistance to the defendant.
5. Mr Rickard challenged the plaintiff as to why he had not brought the saw back to a better position for access, in that he could have taken it all the way back in the opposite direction, where the saw was more accessible to anyone operating the machine. The plaintiff said (and as is noted below Mr Parker agreed) that the position to which he moved the saw was both closer and more practical, and I prefer their evidence on this issue.
6. Wherever the saw was moved to, the plaintiff still had to climb onto the machine. The plaintiff said: "To observe the front of the blade I had to climb onto the bed rollers. That's where I fell."
7. It was also submitted that the plaintiff could have obtained an aluminium ladder and put it against the machine, which would give him closer access and help him to get the job done more quickly. The plaintiff said he would not have been quicker than climbing over the rollers and that he would still have had to get onto the machine. He acknowledged that a ladder was there.
8. Mr Parker's evidence about the ladder and the machine for log feeding, set out below, is the basis upon which I have rejected this as an appropriate means of access to the machine.
9. I will next set out the evidence of Mr Parker. The plaintiff's cross-examination concerning his injuries and disabilities is discussed in more detail below.

Mr Parker's evidence

1. Mr Parker was the plaintiff's supervisor. He ceased employment at the sawmill three weeks after the plaintiff's accident, and told the court he was currently working as a bus driver.
2. Mr Parker described the circumstances in which a brand new machine "out of the box" had been sent from Canada and installed in the mill, and that he had been involved in its setting up. From the first, there had been repeated difficulties in getting the machine to operate successfully (see paragraphs 10 and 11 above) and those problems had never been fixed. By the time the plaintiff commenced work, the operator would have to bring the jammed machine saw back on its tread on a regular basis (he used the expression "every hour").
3. Mr Parker saw the same YouTube clip from the witness box and, like the plaintiff, noted that the machine shown on YouTube was on the ground, whereas this one was elevated and this added to the access difficulties.
4. One difference between Mr Parker's evidence and that of the plaintiff was that he described an additional "machine" on either side of the machine on which the plaintiff suffered the accident. The purpose of this additional machine was to enable logs to be fed onto and off the cutting platform. He said there was "no other way" to get to the machine when it stopped other than walking over the rollers.

The plaintiff's accident

1. Mr Parker, who was working a short distance away on the day of the accident, heard the sound of the blade hitting the post and realised that the blade and post could have been damaged. As he came towards the machine he saw the plaintiff had "started doing the usual climbing over" when "all of a sudden he slipped". He said that the plaintiff "went down, grabbed something" and fell. He was not cross-examined on this description.
2. The plaintiff was taken to hospital that day. Mr Parker left the mill three weeks later. He continued, up until the time of his departure, to raise the issue of safety of the machine "several more times".

Mr Parker's cross-examination

1. It was put to Mr Parker that the plaintiff would have been able to get to the machine more safely if he had brought the saw to the other end of the machine. Mr Parker disputed this, saying that the physical closeness of the machinery, and in particular to the log feeding machine, meant that there was "physically not enough room". He said if the blade is struck, you "have to get on top" of the machine. The blade has to be "tensioned". When asked why the blade would have stopped on the day in question, he said there "could be a thousand reasons".
2. Mr Parker also disagreed with the suggestion that the only reason to get on top of the machine would have been if the blade could not be taken out of the timber. He said that there had been situations where the blade had stopped for no known reason, and it was necessary to get up to inspect what had occurred. Nor did he agreed that the problem could have been avoided by the plaintiff going down the right hand side of the machine, or that it was possible in some way to climb underneath the machine. He said what the photographs of the machine in question did not show was that there was a machine conveyor belt two feet underneath the machine, and that this stopped the workers from accessing the machine closely.
3. Mr Parker responded in a scornful tone to the suggestion that a ladder could have been placed against the machine. He said there was "nowhere to put a ladder" and that the instability of the ladder, the height of the machine and the lack of any position on the machine for the ladder to be placed safely, meant that the safest way to deal with the problem in the absence of a ladder wielded to the machine was to do what the plaintiff did.
4. In re-examination, Mr Parker confirmed that it would have been "a 10-minute job" to wield a ladder on, and that this was what later occurred.
5. Mr Parker, like the plaintiff, was an impressive witness, who had a clear and detailed recollection of the workplace layout, the work system, the day of the accident and the difficulties with the machine.

The expert's report

1. The plaintiff relied upon a report from Mr David Cockbain (Exhibit C), whose carefully written report is a model of how an expert report should be prepared; in fact, its conclusions were not referred to by counsel for the defendant, either in cross-examination of the plaintiff and Mr Parker, or in his submissions.
2. Mr Cockbain was not able to visit the premises; the plaintiff's former employer had gone into liquidation long before he wrote his report. This means that his factual opinions rest largely upon the plaintiff's account and the letter of instructions from the plaintiff's solicitors. As I have found the plaintiff to be a witness of truth, those findings of fact therefore rest on firm ground, but with one exception. Mr Parker's evidence about the machine to feed the logs, the uselessness of the one available ladder and about the system and machine generally are, in my view, more accurate than the plaintiff's own evidence, and where there is any discrepancy I have preferred the evidence of Mr Parker. However, as Mr Parker's evidence assists the plaintiff, the impact of his additional evidence upon the factual scenario described by Mr Cockbain is to strengthen the validity of the report's conclusions, rather than to undermine it.
3. Mr Cockbain's report sets out 17 factors contributing to the plaintiff's injury: 1. The failure of the defendant to provide and maintain a proper and safe place of work, and safe plant and equipment. 2. The failure of the defendant to provide and maintain safe and appropriate access to all places where the plaintiff was required to perform work. 3. The failure of the defendant to undertake a risk assessment of the task required to be undertaken by the plaintiff in the operation and inspection and maintenance of the plant. 4. The failure of the defendant to develop and implement a safe operating procedure/work instructions for the task of inspecting saw blades. 5. The failure of the defendant to warn the plaintiff of the risk of injury involved in performing the task of inspecting the saw blade whilst positioned on the in-feed deck at a height above ground level. 6. The failure of the defendant to develop, implement and deliver a competency based training and assessment package for the operation, inspection and maintenance of the plant prior to the plant use. 7. The failure of the defendant to provide adequate technical supervision to the plaintiff in the performance of his work. 8. The failure of the defendant to comply with the requirements of the NSW WorkCover Authority's Code of Practice for Sawmilling Industry. 9. The failure of the defendant to install walkways and/or platforms fitted with guardrails to the timber in-feed system that complied with the requirements of Australian Standard AS 1657-1992 Fixed platforms, walkways, stairways and ladders - Design, construction and installation to provide access to areas where the plaintiff was required to undertake inspection and maintenance tasks. 10. The failure of the defendant to provide fall prevention devices and single point anchorages with an ultimate strength of 15kN in accordance with Australia Standard AS 1891.4:2009 Industrial fall-arrest systems and devices - Selection, use and maintenance. 11. The failure of the defendant to comply with the requirements of the National Code of Practice for Plant (NOHSC:1010(1994)), in particular clause 31 relating to the assessment of risks associated with plant in use. 12. The failure of the defendant to comply with the requirements of the Occupational Health and Safety Act 2000 (NSW) ("the Act") and the Occupational Health and Safety Regulation 2001 (NSW) ("the Regulation"), specifically s 8 of the Act and rr 9, 10, 11, 12, 13 and 14 of the Regulation requiring the defendant to identify hazards, assess risk, eliminate or control risks, review risk assessments and control measures and provide instructions, training, information and supervision. 13. The failure of the defendant to control the risk associated with the requirement for the plaintiff to perform work at heights in accordance with r 56 of the Occupational Health and Safety Regulation 2001 (NSW). 14. The failure of the defendant to ensure that an appropriate Human Machine Interface (HMI) system, software and programming system was developed and implemented that enabled the programming of operations in metric measurements. 15. The failure of the defendant to comply with the requirements of AS 1470-1986 Health and safety at work - Principles and practices, specifically relating to hazards and working at heights. 16. The failure of the defendant to develop and implement an effective occupational health and safety management system in accordance with the requirements of Australian/New Zealand Standard AS/NZS 4801:2001 Occupational health and safety management systems - Specification with guidance for use. 17. The failure of the defendant to comply with the basic intent and articulated risk management controls as contained within the Australian/New Zealand Standard AS/NZS ISO 31000:2009 Risk management - Principles and guidelines.
4. The expert noted reasonable preventative measures that would not have involved expense in development or implementation. I note that a number of alternatives are suggested, of which the most attractive is the simple solution of the "ten minute welding job" proposed by Mr Parker, to weld a ladder to the machine so that it was high enough and stable enough to access the conveyer belt.
5. Mr Cockbain notes (at paragraph 68) that he had not been provided with any material about supervision of the plaintiff. I am satisfied, from the evidence of Mr Parker, that the system of supervision in place failed because Mr Parker, the supervisor, both noted and reported hazards, failure to comply with safety systems (or rather failure to have a safety system), failure of the machine to comply with safety standards and the generally unsafe working conditions.
6. In the section of his report on foreseeability (paragraphs 91 - 105) and preventability (paragraphs 106 - 110), Mr Cockbain paints a stark picture of an accident waiting to happen. He describes the risk (page 34, paragraph 114) as "significant" and the cost of correction of the problem as "minor". I accept these findings as both reasonable and well-founded.

Findings on liability

1. Mr Rickard's submissions on liability were brief. He did not address any of the issues raised in the expert report, or the evidence of Mr Parker.
2. Mr Rickard submitted that the procedure in place to deal with these repeated problems, namely the blade striking an object or becoming stuck in the wood, was to retract the blade and have the blade moved along the feed line to the opposite end, where it could be examined more closely.
3. Both Mr Parker's evidence, and the system set up in the YouTube video, show it was necessary for there to be another machine feeding the logs onto the conveyor belt. Mr Parker says, and I accept, that it would have been impossible for the plaintiff to obtain access to the machine in the way proposed by counsel for the defendant. Additionally, the plaintiff's explanation that it was safer to bring the saw back a shorter distance rather than to have to run all the way to the opposite end, in order to avoid further damage or problems, is a reasonable one.
4. Counsel for the plaintiff submitted that seldom would a clearer case on liability be put to the court. There was extensive evidence of complaint by the plaintiff and his supervisor, an obviously dangerous system of work, and a serious injury which could have been prevented by the "simple remedy available" of proper access to the machine by a properly affixed ladder or any one of the other inexpensive alternatives proposed by the expert evidence. He asked me to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) from the failure of the defendant to call Mr Slattery, a finding which I propose to make.
5. Addressing the particulars of negligence as particularised in the statement of claim, I am satisfied that: 1. The defendant knowingly failed to take any precautions for the safety of the machine operator, or to adequately consider the risks for any operator performing the plaintiff's task (particulars (a) to (d)). 2. The defendant failed to heed complaints from first Mr Parker and then the plaintiff, and responded to complaints by either telling the plaintiff to get on with it or saying that it would be fixed, but failing to take any action (particulars (f) and (g)). Particular (h), which provides that the plaintiff was not provided with a ladder or similar device is not made out, but I am satisfied that the ladder provided would have been, for the reasons explained by Mr Parker, inadequate. 3. The defendant knowingly permitted an unsafe system of work, in that the plaintiff was required to climb and walk over unstable rollers (particulars (e), (i), (j)) in circumstances where there is nowhere for the plaintiff to hold onto a railing, or to be able to balance himself properly. 4. The defendant's servants or agents failed to train the plaintiff or give any instructions about how to operate the machine in a safer manner to avoid accidents of the kind which occurred. 5. The defendant's servants or agents knowingly failed to keep the machine in proper order to ensure that the saw did not strike objects in its path despite observing it regularly doing so both before and during the plaintiff's time of employment (particulars (l) and (m)).
6. I am satisfied that the plaintiff has established liability. This brings me to the question of contributory negligence.

Contributory negligence

1. The defendant relies upon the following particulars of contributory negligence (paragraph 6 of the Defence): 1. Failing to keep a proper lookout; 2. Failing to take proper precautions in all of the circumstances for his own safety; 3. Being inattentive; 4. Climbing onto the rollers to check the saw blade when there was no need to do so and in contravention of instructions issued by the employer; 5. Failing to raise the saw to its full height and run it forwards over the top of the log to the end of the track and then obtain the step ladder which was available and whilst standing on the step ladder remove the covers in order to expose the blade for checking; 6. Failing to perform the particular task in accordance with the system of work set in place by the employer.
2. Mr Rickard submitted that the plaintiff had several options available and "made the wrong call" in circumstances where six weeks' employment was long enough for him to realise that he needed to have a safe system in order to reactivate the machine when the saw stopped or became jammed. There was another pathway, in that he could walk down the right hand side and get onto the machine more safely.
3. Mr Rickard acknowledged, however, the evidence of Mr Parker that there was a log feeder in the way. In those circumstances, it is hard to see how it could be submitted that the plaintiff should have adopted this course, and I do not consider that this amounts to evidence of contributory negligence.
4. An employee who makes "the wrong call" may not necessarily be guilty of contributory negligence: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. The difficulty is that there really was no safe way for this machine to be operated unless one or more of the proposals put forward by the expert, and in particular the soldering on of a properly secure ladder, occurred.
5. Dealing with each of the particulars set out in the Defence, there is no evidence that the plaintiff was failing to keep a proper lookout or being inattentive; no such suggestion was put to him in cross-examination.
6. Particulars (4) and (6) (paragraphs 6.4 and 6.6 of the Defence) are of concern, in that there is no evidence of the plaintiff's action being in contravention of instructions or of a system of work being put in place to the contrary. Not only was the plaintiff not cross-examined on this point, but neither was Mr Parker, and no evidence was called by the defendant. Those particulars are not made out.
7. Accordingly, I am satisfied that the defendant has failed to make out a claim for contributory negligence.

Section 151D(2) Workers Compensation Act 1987(NSW)

1. At paragraph 9 of the Defence, the claim is made that these proceedings are not maintainable for the reason that the proceedings are commenced in contravention of s 151D(2) Workers Compensation Act 1987 (NSW). No submissions were made on this issue by either counsel for the plaintiff or counsel for the defendant.
2. This brings me to the issue of quantum.

Quantum

1. As is set out in the statement of issues, the sole matters for determination are the assessment of the plaintiff's work injury damages as a result of his injury. This requires me to assess his past and future economic loss and superannuation. A Fox v Wood payback is agreed to be $16,070.00.
2. I shall first set out the plaintiff's treatment history, as many of the medical reports tendered are reports from the plaintiff's treating doctors.

An outline of the plaintiff's injuries

1. All of the medical evidence described the plaintiff as having a "significant" injury (to use the term set out in the report of Dr Cass of 6 June 2012, Exhibit 1), requiring a series of operations, the last of which was "quite a large" operation (Dr Cass, report of 12 August 2012, Exhibit B), and the results of which have been relatively disappointing (Dr Cass, 17 December 2012).
2. The plaintiff also developed psychological sequelae due to his enforced inactivity and pain. Part of the problem is that he was already, as Dr Cass so colourfully describes him, "a big lad" (report 17 August 2012) and this weight gain (from 111 kg to 138 kg, according to Dr Lawson) was "probably almost as big" as his shoulder problems both in his treatment and subsequent recovery.
3. The shoulder injury was further exacerbated by carpal tunnel syndrome, which required surgery in August 2012. Unfortunately that surgery was also not very successful, and his condition in relation to his hand has now plateaued (Dr Lawson, 30 April 2013, Exhibit B).
4. More recently, as a result of overuse to compensate for being essentially what he calls a "one-armed" man, he has begun to develop pain in the dominant right arm.
5. All of the medical practitioners accept the plaintiff as a person whose account of his injuries and disabilities is unembellished, frank, honest and reliable.

The plaintiff's treatment

1. Mr Parker took the plaintiff to Blayney Hospital, where he was told they could not treat him. He was then driven to Bathurst Hospital by his former girlfriend where he underwent X-rays and a CT scan of his shoulder. He was supported in a sling and given a readmission date for two weeks later. He underwent an operation on his left shoulder on 10 June 2011 by Dr Nandapalan at Bathurst Hospital. This was open reduction and internal fixation of the fractured left humerus. He remained in hospital for only one day, after which he was allowed home with his arm in the sling and given analgesics. He also commenced physiotherapy.
2. He began suffering further pain in his arm and on 16 August 2011 he consulted Dr Hammond for nerve conduction studies. His carpal tunnel problems were then recognised.
3. The plaintiff's shoulder remained very stiff. He underwent surgery by Dr Milne, being a left shoulder arthroscopic capsular release with subacromial decompression. This was followed by more physiotherapy, but there was still problems moving his arm.
4. The plaintiff began to develop psychological responses to his incapacities and his inability to work. On 30 March 2012 he consulted a psychologist, Ms Anderson, and he was referred to Dr Cass by Dr Milne for ongoing supervision of his shoulder problems.
5. The plaintiff continued to have problems moving his arm, even after all this time, and a report of 10 May 2012 from Dr Milne notes there has been a severe recurrence of post traumatic frozen shoulder. Dr Cass confirms this in a report of 6 June 2012. Dr Cass' report shows that the nerve conduction studies did not show any focal neurological damage. However, the plaintiff continued to be troubled by pins and needles and numbness through and arm and hand as well as pain.
6. The plaintiff underwent further surgery on 17 August 2012 when Dr Cass removed the plate and screws from the humeral fractures, carried out bone grafting into the screw holes, remove the extensive scar tissue and generally tidied up the area the subject of surgery.
7. The plaintiff continued to have problems with his hand and arm in terms of pins and needles. As is noted above, he underwent carpal tunnel surgery at this time.
8. The plaintiff remained unable to work until 11 October 2013, when his symptoms had sufficiently settled for him to commence employment as a security guard with Frontline Protection Group Pty Ltd where he worked two shifts, but ceased employment as he was unable to perform the work. At this stage, his medical condition has been described by both his treating doctors and medico-legal experts for the plaintiff and defendant as consisting of significant ongoing problems not only because of his inability to use his left arm but, by reason of relying more on his right arm, irritability developing at his right shoulder with some mild restriction of movement.

The medical evidence

1. The defendant's medical evidence consists of re-served reports, or additional reports, from the plaintiff's treating doctors, Dr Cass and Dr Lawson. The report most relied upon by the defendant, namely Dr Cass's report of 20 February 2013 concerning the plaintiff's employability, is discussed in more detail in the section of this judgment concerning future economic loss.
2. The reports of most assistance are those of Dr Cass, who wrote to Dr Milne in terms specifically aimed at explaining the plaintiff's condition to workers compensation as follows: "I have not made any promises - I think we might improve him by 10 or 20° in all range which would give him significant benefit. On certain occasions we actually give very significant benefit. Workers compensation authorities need to know that I agree with you Ben, I don't think heavy manual labouring or heavy work is ever going to be sensible for Clinton in the future. He should be retrained in some kind of sedentary pursuit." (Exhibit 1, page 41)
3. Dr Cass wrote a follow up report on 17 August 2012 following the operation he had just performed: "In short Clinton had quite a large operation and he will take a while to settle. At the start of the case his forward elevation at best was to 90° while he was asleep with significant force external rotation to 10° past neutral and internal rotation just to his trochanter. By the end of the case with a significant period of manipulation and gradually breaking of adhesions after the above release I was able to get forward elevation up to 130°, external rotation to nearly 70° and internal rotation to the mid lumbar spine, an improvement of at least 30 to 40cms. It is by no means normal but it is a significant improvement and I hope as his power and deltoid comes back that he will actually get some significant benefits as predicted in the preoperative assessment. I would be happy if he just got 10 or 20° in all planes to significantly increase the envelope of motion. I am not certain the operation will remove any of his pain, but hopefully the carpal tunnel release will. We will just have to wait and see." (Exhibit 1, page 43)
4. Dr Cass was hopeful of giving him "an ounce of pain relief and also 10 or 20° in all ranges; time will tell" (Exhibit 1, page 43). He further revised his position in his report of 17 December 2012 to the plaintiff's general practitioner: "In terms of CGU, I have been asked about a return to work. Firstly I feel that Clinton can drive an automatic car, obviously there is no climbing up and down into a chassis of a larger vehicle. He can work, but only using his right arm and hand for support and stability. He can hold little objects and do clerical work with his left hand, but the maximum weight with both of his hands together would be 4kgs. If he is going to return to work I have it should be on a reduced days, perhaps only starting three days a week or even two days and very low hours 3 to 4 hours per day and only if his right shoulder is pain free and he can cope with the job. I think he would be fine to start this again in another two months' time. In terms of permanent disability, Clinton is definitely going to be left with one. He has a relatively deficiency of his rotator cuff of the left shoulder. He has some altered bony anatomy there and scar tissue following his significant injury and he has had some neurological stretching and brachial plexus injury as well. He could be assessed as his maximum medical improvement will be at one year following the release surgery. I wish him the best of luck and reiterate that his benefits now will not come from significant force or pushing or pulling the shoulder, but will probably come from swimming and the gradual stretch of putting his hands behind his head at night time. I would like to review him again in another four months which will get him to just past the six months mark post release of his shoulder." (Exhibit 1, page 46)
5. Dr Cass took a less optimistic view in his report of 30 April 2013: "Clinton Hobby was reviewed in rooms today. It is just under a year since we released his left shoulder and tried to give him back a better range of motion. I have to say his benefits have been minimal from my procedure. I think I have helped him a little in terms of rotation and it feels a litter freer for him. Essentially, Clinton has been left with his left shoulder dramatically affected by his injury. Forward elevation is at most to 45 degrees, although with assistance I can get it up to well past 90 degrees and when he is lying flat he can get it even further. It points to the fact that the joint has been released and it is congruent and sits quite nicely following his first fixation and I cannot suggest that any further releasing will dramatically improve him. External rotation is to neutral and internal rotation is to the lowermost edge of the lumbar spine. His predominant examination findings are generalised and difficult to define weakness affecting particularly the mid and anterior deltoid with nerve radiation symptoms that run all the way down to the hand, colour change, swelling in his hand and difficulties activating upper trapezius, scapular retractors, rhomboids and it is all quite highly indicative of the damage from the traction injury to his brachial plexus and the nerves of the upper limb as previously described by Richard Lawson. He is going to get gradual improvement but I think that he is at the maximum point now in terms of recovery and can be assessed as such. I do not think there is a further role for operative release or intervention at the moment, although the insurance company needs to understand it is possible in the future for Clinton to re-injure the area, to get arthritis or have progressive rotator cuff problems and they may need to be investigated or treated down the track. They will, in no small part, be related to his current injury, although that would also depend on how he re-injured his arm or if anything further happens in the future. I do think it is wise for him to be retrained and employed. It is probably his best way forward to maximise his improvement and function. I do think the vast majority of work as a security officer is reasonable for him to do but it is heavy impact, restraining people or violent altercations that he is not going to be able to fulfil those duties. I will see Clinton again if necessary based on his pain and symptoms." (Exhibit 1, pages 48-49)
6. Dr Lawson, who carried out the carpal tunnel surgery, was particularly concerned about the plaintiff's weight, stating (Exhibit 1, pages 50-51): "A second problem, which is probably almost as big as his shoulder, is his weight. He is 185cm tall and has increased in weight from 111kg to 129kg since the accident, giving him a BMI of 38. He is finding it very difficult to keep the weight off despite spending an hour a day at the gym. From my point of view, Clinton clinically has carpal tunnel syndrome. I note that he has had nerve conduction studies performed in August 2011 which did not show any particular slowing of conduction across the median nerve but with his increase in weight and the prolonged dependency of the arm along with probable brachial plexus stretch injury, he has gone on to develop carpal tunnel syndrome. He needs to have nerve conduction studies to evaluate this and if he has surgery on the shoulder, he should have his carpal tunnel released concurrently. Secondly, I am very concerned about his health in the long term with his obesity. I think at the least he needs to see a dietician and I wonder about the possible role of bariatric surgery for him." (Exhibit 1, pages 50-51)
7. The plaintiff also relies upon medico-legal reports from Dr Millions (dated 13 November 2013 and 28 May 2015 - Exhibit B). These provided similar opinions, as did a medic-legal report from Dr Clarke (21 January 2014).
8. Dr Millons described the plaintiff's current medical condition (i.e. as at 28 May 2015) as follows: "CURRENT SITUATION Mr Hobby states that his left shoulder is getting worse with the passage of time. He has a lot of pain over the front of the left shoulder, in the left axilla and down the back of the arm towards the elbow. Pain will radiate down to the wrist. The wrist clicks. He has very limited movements at the shoulder and elbow. He cannot get a fork up to his mouth with his left hand and tends to use his right hand to eat. He recalled he had his carpal tunnel decompressed by Dr Lawson in August 2012. That did not make any difference to his hand symptoms. He still has pins and needles and numbness through all the hand and the hand changes colour. He finds it difficult to do hand exercises. His symptoms are so bad he has not been able to sleep in a bed for the last four years. He sleeps on a corner lounge, propped up, to get some relief. Over the last few months, Mr Hobby has been developing some problems in the right side of the neck and over the right shoulder. He feels this is because he is using that arm more to protect his left shoulder. He is starting to develop some discomfort in his right wrist and is getting pins and needles in his right hand. Sometimes Mr Hobby wakes in the morning with the feeling that his arms do not move. He describes the arms as "feeling empty". He could not quite explain what he meant by that. He is troubled by some discomfort in the right lower lumbar region. Pain does not radiate into either lower limb. Mr Hobby is independent in his personal activities of daily living. He is able to shower himself and dress himself though dressing can be difficult. He finds it hard to do up laces and wears slip on shoes. He does not do very much at home. His daughter helps out with a lot of the cleaning up. She also tends to the garden. He drives short distances. He finds that aggravating. He still tries to play bowls. He has given up golf and fishing." (Exhibit 1, page 15)

Analysis of the medical evidence

1. I shall first set out the submissions of the parties.
2. Mr Rickard did not dispute the seriousness of the injury or the extended time over which the plaintiff required surgery would substantially impact on past economic loss, and largely confined his submissions to what he called "the big fight", namely the degree to which the plaintiff's injuries impact upon his future employability.
3. Mr Rickard submitted that the plaintiff had injured his non-dominant arm, adding that there was limited evidence as to the possible deterioration of the plaintiff's right shoulder due to the favouring the injured left shoulder, and there was no evidence in relation to the anxiety and depression and other psychological issues set out in paragraphs (h) to (j) of the particulars (see paragraph 6 above). Scarring is minor and would be of little concern (I note that the plaintiff is a large man, with tattoos). Accordingly the only ongoing disabilities demonstrated by the medical evidence, according to the defendant, were the pain and restricted movement in the plaintiff's left shoulder, with some diminishing power of strength and grip in his left arm and hand. All the surgery referred to in the particulars of disabilities had been performed and the likelihood of a future shoulder replacement was at best speculative.
4. Counsel for the plaintiff submitted that this substantial and serious injury to the plaintiff's left shoulder showed gross restriction of movement. The major injury he suffered to his shoulder resulted in constant pain as well as stiffness requiring a series of operations. Although the plaintiff presented in the witness box as someone who tended to minimise his injuries and disabilities, he continued to suffer from pain despite making significant efforts to improve his condition, including going to the gym (report of Dr Lawson, 24 July 2012, Exhibit B), doing his best to keep fit and to lose the weight he had gained, and playing an active part in his rehabilitation program including everything from a home exercise program to keeping as active as possible. A previously fit man and a keen golfer, he had no prior history of injury in the area, and his enforced immobility had resulted in a significant amount of weight loss. His problems were exacerbated by his relatively unsuccessful carpal tunnel surgery. His scarring was significant in that it was estimated at 4%.
5. Amongst the defendant's medical evidence is a report of Dr O'Keefe of 16 July 2014. Dr O'Keefe notes that the plaintiff's measured range of movement as at this date was "much worse" than that measured by Dr Milne on 13 November 2013 and that he suffers from a "tardy ulnar nerve lesion and fixed flexion deformity of the elbow" which Dr O'Keefe states "has not been mentioned by any of the other examining doctors" (report of Dr O'Keefe, p 4). This has not been particularised, and was not referred to in submissions, so I do not propose to deal with this material further. I note Dr O'Keefe 's additional comments on Ms Monaghan's report, which is discussed further below.
6. What is not in dispute is that the evidence points to the plaintiff suffering very significant restrictions in his day to day activities because of his physical limitations, many of which are set out in the vocational assessment reports served by the defendant, and are not contained in the plaintiff's particulars. These include cramping in his left shoulder whilst seated, being unable to sleep other than on the lounge as his sleep is disturbed by his left shoulder injury, use of pain medication to sleep, dizziness and fainting fits, depression requiring antidepressant medication and counselling with a psychologist, Ms Anderson, and, as he stated in his evidence, being able to drive only one handed. The question is one of degree, and of the impact of these symptoms on the plaintiff's past and future economic loss.
7. This brings me to a consideration of the plaintiff's own description of his current state of health.

The plaintiff's evidence as to ongoing disabilities

1. The plaintiff minimised his injuries in response to questions, and this minimising, coupled with his generally inarticulate responses and stoic attitude, means that I have had to look carefully for evidence of the full impact of his injuries and disabilities upon his daily life.
2. I have had the advantage of seeing him in the witness box, and this is a case where the plaintiff's demeanour is of vital importance in assessing the impact of his injuries.
3. What evidence I have found is compelling. Although generally reluctant to describe pain, he described the pain he suffered in the course of surgery following the accident as "the worse pain I've ever been in in my life". Although minimising the impact of his disabilities, he mentioned, briefly, considerable restrictions of a significant nature, including an inability to sleep in a bed (he has to sleep on the lounge), or drive using both hands (which must render employment as a fork lift driver, one of the positions proposed by the rehabilitation provider, somewhat problematic).
4. The plaintiff gave some answers which appeared intended, not to mislead, but to avoid answering issues he was ashamed of. For example, he was not seeing any medical practitioners because there was "nothing more they can do". I note, however, that he has been prescribed tranquillisers because of his sleeping difficulties and regularly saw a psychologist.
5. Mr Rickard put to the plaintiff that he had gone snow skiing. He denied that he had been snow skiing or indeed played any sports. There is a reference in one of the medical reports to lawn bowling, but all of the medical practitioners note that a long career of playing sport had ended with the accident.
6. While the plaintiff's response to his injuries is one of stoicism, there is no doubt that the impact of the injuries and disabilities on his life has been particularly severe. This brings me to a consideration of his past and future economic loss.

Past economic loss including superannuation

1. The plaintiff claims $169,793 for past economic loss as follows: Period 1 Period 30/05/2011 - 10/10/2013 Period = 124 weeks Plaintiff's earnings = $nil Comparable earnings = $900 net per week Plaintiff's loss = $900 x 124 = $111,600 Period 2 Period 11/10/2013 - 30/06/2014 Period = 37 weeks Plaintiff total average net earnings for period $310 per week Comparable earnings = $900 per week Plaintiff's loss = $590 x 37 = $21,830 Period 3 Period 01/07/2014 - 24/06/2015 Period = 51 weeks Plaintiff's total average net earnings for period $187 per week Comparable earnings = $900 per week Plaintiff's loss = $713 x 51 = $36,363 Total = $169,793
2. The defendant submits the plaintiff's loss of wages should be calculated as follows: Wage loss to date $750 x 212 weeks = $159,000 Less earnings post November 2013 ($25,000) Total = $134,000
3. The parties are largely in agreement that the plaintiff suffered significant injuries preventing him returning to employment over a significant period; the difference is what to make of the plaintiff's limited and slow return to the workforce and the basis for past earning loss.
4. The plaintiff worked part time in security work which his treating doctors and the medico-legal expert reports agreed was unsuitable for him to perform because his injuries meant that at best he could perform a role as a static guard, not intervene in a situation of any potential danger. Mr Lidden SC submits, and I accept, this means that he has received wages for performing a job which he is really not medically able to perform without danger to himself. Accordingly, I propose to treat the plaintiff's limited return to the workforce during this period with caution, as it is clear from the reports served by the defendant (including the report of Dr Cass dated 20 February 2013) that the only security officer work he should do as a "possibility" would be to provide armed escort for payroll deliveries, or armed protection for specific organisations such as banks. The word "possibility" is faint in the extreme.
5. Similarly, I accept the plaintiff's basis of $906 per week representing the plaintiff's loss of past earnings (noting that average weekly earnings would be $1,100 per week) as a better guide than the defendant's figure of $750 per week. The 2011 financial year should be ignored because that was the year of the injury, and when considering his previous net weekly earnings for 2009 ($906) and 2010 ($711), I have to take into account the nature of the plaintiff's past work history. In those circumstances, I propose to regard the 2009 year as being the best estimate as to the earnings he should have enjoyed but for his injury.
6. Applying the $906 to the calculation set out by the plaintiff, the revised calculation is as follows: Period 1 Period 30/05/2011 - 10/10/2013 Period = 124 weeks Plaintiff's earnings = $nil Comparable earnings = $906 net per week Plaintiff's loss = $906 x 124 = $112,344 Period 2 Period 11/10/2013 - 30/06/2014 Period = 37 weeks Plaintiff total average net earnings for period $310 per week Comparable earnings = $900 per week Plaintiff's loss = $596 x 37 = $22,052 Period 3 Period 01/07/2014 - 24/06/2015 Period = 51 weeks Plaintiff's total average net earnings for period $187 per week Comparable earnings = $900 per week Plaintiff's loss = $719 x 51 = $36,669 Total = $171,065
7. Accordingly, I award the plaintiff $171,065 for past economic loss.
8. There being no dispute as to the percentage to apply to past superannuation (11%), accordingly, I award $18,817.15 for past loss of superannuation.

Future economic loss

1. The significant issue in these proceedings is the plaintiff's future economic loss. I will first set out the parties' schedule of future loss of earnings.
2. The plaintiff's schedule of future loss of earnings is as follows: Plaintiff born 28/12/1973 Plaintiff currently aged 41 years Remaining working life = 26 years 5% multiplier for 26 years = 768.7 Earnings with defendant in 2011 = $710 net per week but defendants business failed Plaintiff's current average earnings = $187 per week Plaintiff should be earning $1,000 net per week Plaintiff's loss = $813 per week Accordingly $813 x 768.7 x 0.85 = $531,210
3. The defendant submits the plaintiff's future wage loss should be calculated as follows: Future wage loss to 67 (s 151IA Workers Compensation Act) 25.5 years = 761.2 @ $350 per week Less 15% = $226,456
4. The evidence of the plaintiff and of his treating doctors, as well as the medico-legal reports, are set out above, and I do not need to repeat this evidence. As the principal issue in these proceedings is the plaintiff's future economic loss, I propose to set out in detail my analysis of the medical evidence tendered on behalf of the defendant, which includes rehabilitation reports, a letter to Dr Cass about the plaintiff's employability containing his handwritten notes, comments by Dr O'Keefe.

The defendant's evidence on economic loss

1. As noted above, I took the defendant's evidence on economic loss into account when determining past economic loss, but have summarised that evidence in this section of the judgment.
2. The defendant principally relies upon the answers of Dr Cass to the letter from independent injury solutions of 20 February 2013. In it, Dr Cass indicated that the plaintiff was capable of acting as a retail sales person (general, hardware, real estate, motor vehicle), sales representative and forklift operator. He was not capable of working in the job of a service station attendant. It was urged upon me that the "yes" underneath forklift operator must also apply to "security officer/gatekeeper", which is number 4, but since Dr Cass has simply put a circle around "provide armed escort for payroll deliveries and written "possibility"", I struggle to see how he has answered "yes" when he has not put "yes" next to this question, although he has answered all the other questions individually.
3. While I am prepared to accept that the general import of this unsatisfactory handwritten commentary amounts to acceptance of the plaintiff's ability to work as a security officer, the report still suffers from the problem that Dr Cass has not exposed his reasons for coming to the conclusions identified as "yes" and "no", and this must substantially detract from the report's value. In the absence of a report from Dr Cass stating that the plaintiff is capable of working as a security officer maintaining crowd control, apprehending offenders, detecting and reporting fraud and shoplifting and working as a gatekeeper to monitor and authorise persons and vehicles entering and leaving, his conclusions have little value.
4. By comparison, Dr O'Keefe (Exhibit 1) read Ms Monaghan's reports, and it was in this context he pointed out Dr Milne's failure to identify the plaintiff's fixed flexion deformity. Dr O'Keefe notes that Ms Monaghan and her colleagues "have made various recommendations including that he work as a security guard which he is now doing", he was dismissive of those proposals, stating that the plaintiff's "educational levels and past experience" meant that "he is really only suited to clerical or sedentary work for which he is not trained" and that "for him to continue to work in the security industry would seem to be the most practical solution" (Exhibit 1).
5. The plaintiff's evidence was that he had obtained only very limited work in the security industry, and that this work was the crowd control kind of work that it is generally agreed is dangerous for him to do. If he ever had to restrain anyone, he would be in real difficulties. The security firm he had worked for appeared to be aware of this, because he was rarely offered work.
6. Mr Lidden SC submitted that the past was a good indicator of the future; the rehabilitation service had been unable to find work for the plaintiff in the past and the likelihood was that the plaintiff would be unable to find work for the future: Nominal Defendant v Livaja [2011] NSWCA 121. He had been earning very little, and in fact what little he had earned has largely been earned in work for which he was agreed to be unsuitable, namely working as a security guard in crowd control related jobs.
7. Additionally, although Ms Monaghan has given lip service to the fact that the plaintiff lives in a rural area, in that there are references to jobs in Orange (some distance from the plaintiff's home town of Blayney), these jobs seem inappropriate. The sales jobs require skills such as "a good phone manner", "customer service skills", and the plaintiff not only presents as someone who does not have those skills, but also lacks computer skills and does not have a computer at home.
8. The defendant is required to establish not only what the plaintiff can do, but also that work is available. In this regard, Mr Lidden SC referred to Mead v Kerney [2012] NSWCA 215, where the plaintiff, who lived at Mudgee, was unable to find work in the area, to the extent where he considered moving out of the area to look for some kind of office work even though he had "never ever done office work" (at [11]). The problem was that he lived in a remote area where there was little work to be had. The trial judge in Mead v Kerney, having first determined the plaintiff's theoretical work capacity, then considered whether the plaintiff could, at a practical matter, utilise that capacity to obtain work in the geographic area in which it was reasonable for him to seek work (Nominal Defendant v Livaja [2011] NSWCA 121). On appeal, this approach was considered correct.
9. There must be a practical assessment of the plaintiff being able to in fact obtain jobs of the kind proposed by the rehabilitation reports, as the Court of Appeal pointed out in Mead v Kerney at [24]-[27]. Additionally, such work as is available to the plaintiff in the area in which he lives needs to be work with the kind of characteristics set out in Mead v Kerney at [30]; all of the factors set out there except the first factor (namely employability for no more than three hours a day) would apply.
10. The plaintiff has worked his whole life as a manual labourer. He has, from my observation of him in the witness box, no transferable skills of any kind in any job where he would be required to deal with customers, serve in a shop or perform tasks which involves interaction with the public. He is, as Dr O'Keefe describes him, "a thickset individual with dark hair and tattoos, 6'1" in height, weighing 126kg" (Exhibit 1, report of 16 July 2014, page 3). He is inarticulate, has no (or only basic) computer skills and he lacks the ability, from my observation of him, to perform the sedentary jobs which are put forward.
11. Although Ms Monaghan refers to the plaintiff as "pain focussed", what does come out clearly through these reports is the plaintiff's willingness to retrain and willingness to try. His willingness to consider careers such as real estate (vocational assessment report 28 March 2013, page 9) or sales representative are an indication of the same positive attitude he had shown to cooperate with medical practitioners in his treatment, but represent a complete lack of understanding of the skills limitations placed on him not so much by his work history but more by his lack of skills generally.
12. As already noted, the plaintiff's lack of computer skills is noted in a number of the reports, although inconsistently described as "below average" in the report of 28 March 2013 to being completely lacking, in that he needs to complete "a basic computer course to obtain computer skills" (page 19 of the same report), as he has no computer in his home. That kind of inconsistency in relation to such an important work skill must undermine the report. Similarly, Ms Monaghan failed to pick up that the plaintiff is driving a car one-handed, which might impact upon his employability as a forklift driver.
13. Some of the advice contained in the vocational report is inappropriate for a person with the plaintiff's limited work background. For example: "To work as a sales representative in a specialised or technical area, Mr Hobby will usually need to undertake post-secondary study in that area. For example, chemical sales representatives often need tertiary or technical qualifications, plus experience, in fields such as science or engineering to work in industrial chemical sales." (report 28 March 2013, page 14)
14. There was a notation that there is "currently one position advertised in Orange for a sales representative" but it transpires that this is a global company requiring a sales representative for a three week contract. Applicants require good communication skills and a sales or customer service background (report 28 March 2013, page 15). Mr Hobby is described as having "transferable skills that may assist him to obtain employment in this area" and that Dr Cass has reported this as being "physically appropriate".
15. Similarly, in relation to the job of "security officer/gatekeeper", there is a notation that the plaintiff needs to be physically fit and may be required to pass a medical examination. It is hard to see how the plaintiff could do so, and I note that there were, at the time of this report being prepared, no positions advertised for security work in Orange or Bathurst (report 28 March 2013, page 18).
16. The report notes a number of barriers to employment. These included the fact that the plaintiff was pain focused, that he believed he would experience difficulty in obtaining employment due to his injuries, and that his transferrable skills were predominantly physical in nature.
17. Finally, I note the tender of a summary of the plaintiff's earnings since 23 April 2014 (Exhibit 3). He earned an average of $322 per week for Bear Security Pty Ltd for 27 weeks (23 June 2014 to 4 January 2015) and $169 per week for 5 weeks with Smith & Co Security (20 April to 25 May 2015). Much of this work was, however, work of the kind that the plaintiff should not be doing, in that it involves potential injuries. The plaintiff has not been able to obtain any other form of employment except this work as a security guard.

Conclusions concerning the plaintiff's future economic loss

1. I found Ms Monaghan's report to be both superficial and unhelpful, and Dr Cass's brief handwritten notes of little weight due to the lack of explanation. Dr O'Keefe's comments about the plaintiff's lack of suitability for sedentary work, and his view that the best solution is for the plaintiff to do security work, are helpful, but it must be noted that the plaintiff can really only perform static guard work, not crowd control, because he could not restrain a person, control a crowd or respond to danger satisfactorily.
2. It is not that the plaintiff is unwilling to try; his willingness to participate is noted throughout Ms Monaghan's report. However, in practical terms, there is no evidence of there being jobs fulfilling the criteria applicable to any employment for the plaintiff as at 2013 apart from the guard work which he really should not be doing. If the rehabilitation service cannot find such jobs, it is likely that the plaintiff would suffer the same problems.
3. The plaintiff has had a long and active work history prior to the accident. He was eager to get back into the workforce as soon as he could. He made serious attempts to obtain employment and it was not put to him in cross-examination that any attempts he made were not genuine or that there were other practical steps that he could have taken to obtain employment. To the contrary, he sought and obtained employment in jobs that were actually dangerous. This is not a case where there has been a claim of failure to mitigate loss in relation to past employment, or of malingering in order to minimise his future employability.
4. Without evidence that the plaintiff's condition will improve, albeit accommodated by future employment markets, I cannot assume that his potential residual earning capacity will be of any significant use to him in the future. I note that evidence of the problems he had had between the obtaining of employment between the accident and the trial may be good indicators of current and future earning potential: Kallouf v Middis [2008] NSWCA 61.
5. In the course of his closing submissions, Mr Lidden SC stated that "Nature does not help [the plaintiff]; there's a reason why he does heavy manual work". Without wanting to distress the plaintiff, I agree with these observations. His presentation and demeanour are really only suitable for guard work, but static guard work, or work in the console room (assuming he could operate the security cameras) has not been possible for him to find to date. While he has a strong work ethic, that is not enough. As an unskilled worker, it is clear, from the history of his attempts to obtain work to date, that he has been pushed to the back of the queue and is the casual employee of the last resort for the security firm that has offered him some limited employment since his injuries settled. The limits of that employability are, I am satisfied, best demonstrated by assuming that the plaintiff would earn less than $200 per week (Mr Lidden SC's estimate is $187). In practical terms, he is always going to have difficulty finding work, especially as he grows older, and will have long periods of being unemployed, in the same way that he is doing now.
6. Taking all of the above into account, I accept Mr Lidden SC's calculations for future economic loss, representing his earnings as being $1,000 net per week (his net of $710 per week just before the accident was the salary while working for a failing business about to go into liquidation, and thus not truly representative of his employability). I am satisfied, having regard to the salary the plaintiff has earned since his return to the work force, that an appropriate figure for current average weekly earnings is $187 per week. This makes his loss $813 per week.
7. This will result in a total of $513,210 for future economic loss, taking into account the following: 1. The plaintiff is currently aged 41 years (date of birth 28 December 1973) and has a remaining working life of 26 years. I note, on the defendant's summary, that there is no challenge to the plaintiff's retirement age of 67 (of Mead v Kerney at [49]); 2. The 5% multiplier for 26 years is 768.7; 3. The plaintiff's loss is $813 per week; 4. Vicissitudes of 15% must be allowed for; 5. The calculation is therefore $813 x 768.7 x 0.85 = $531,201.

Future loss of superannuation

1. The plaintiff submits loss of superannuation (for both past and future) should be calculated as follows: Assume Rate for past = 11% of net loss (0.11) Rate for future for 26 years = 13.61% of net loss (0.1361) Past $169,793 x 0.11 = $18,677 [Note: this is dealt with in the section on past economic loss, as set above]. Future $513,210 x 0.13 = $66,717 Total = $85,394
2. The defendant does not cavil with 11% for past superannuation but submits loss of superannuation should be calculated as follows: Future superannuation = $24,910 (Note: This has been calculated by applying 11% to the defendant's proposed future economic loss sum of $226,456.) Total = $39,650
3. Mr Lidden SC referred to Najdovski v Crnojlovic (2008) 72 NSWLR 728, submitting that the percentage for future superannuation calculations should take into account the rises to the superannuation guarantee, while allowing for the government's postponement of the relevant legislation by the government (which has resulted in his reducing the rate from 13.8% to 13%). Mr Rickard submitted the same rate should apply for future as for past superannuation.
4. Future loss of superannuation as high as 14% has been awarded without comment: see, for example, Black v Young (2015) 70 MVR 174 at [36]. In the absence of a more compelling argument on behalf of the defendant, I see no reason why the rate of 13% should not be awarded.

Fox v Wood

1. The parties have agreed to a Fox v Wood component for $16,070.

Credit for weekly workers compensation payments

1. The agreed sum for which the defendant is entitled to credit is $108,620.

Orders

1. There was a mathematical error in the plaintiff's total for damages due to uncertainty as to the precise Fox v Wood figure. Additionally, allowance must be made for the weekly workers compensation payments. Accordingly I will give judgment for the plaintiff and give the parties liberty to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum. Liberty to apply in relation to costs has also been given. 1. Judgment for the plaintiff. 2. Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum. 3. Defendant pay plaintiff's costs. 4. Liberty to restore in relation to costs.

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: 18 November 2015