Hubbard v Stephen Wells Trading as Wells Plumbing & Anor

Hubbard v Stephen Wells Trading as Wells Plumbing & Anor - [2007] NSWDC 93 - NSWDC 2007 case summary — Zoe

[45]

38 In his "2002 Tax Return" the Plaintiff claimed the moneys paid to him by the Defendant for that tax year as "Salary or Wages". It should be noted however that this included "Salary or Wages" paid by other ABN payers, who themselves had not "employed" the Plaintiff. The Defendant agreed that he had never filled out a "PAYG Payment Summary", for any independent contractor that he had contracted in the "20 odd years" that he had been in business, other than the Plaintiff. Such "Summaries" have been in place, however, only since 1 July 2000. In that tax return for the 2002 tax year he identified gross payments of $4,100.00 from Mr Wells as "salary or wages". That tax return had attached to it a "P A Y G Payment Summary", issued by Mr Wells dated 6/9/02, in the name of the company that took over the conduct of his business in early 2002. The differences in corporate or business title are of no moment. Mr Wells conducted several businesses at about the same time. "Wells Plumbing" ceased to trade in about June 2002, replaced by a corporation called "Sweftclean Pty Ltd", which he had taken over in February 2002. At the time of the accident he was trading as a "sole trader" under the name "Wells Plumbing". "Sweftclean" became "Acclaim Civil Pty Ltd", which commenced trading under that name in March/April 2002. The figure for gross payments in the "PAYG Summary", does not accord with any actual payments made to the Plaintiff, either for the period between mid October to mid December 2001 and/or the prior period when moneys were paid to the Plaintiff for work done between August and October 2001. What is disclosed in the P A Y G Taxation Summary would appear to be a ex post facto reconstruction of payments made and deductions made that bears little relationship to any reality. This is no fault of the Plaintiff in any way shape or form. Bearing in mind no "pay slips" were provided to the Plaintiff, he could do no more than rely upon such information as was provided to him by Mr Wells, in summary, at the end of the tax year during which the Plaintiff was injured. The provision of a PAYG Summary is itself not conclusive of anything so far as the Plaintiff's status is concerned. "Withholding" of payments by the "PAY AS YOU GO" system, operative from 1 July 2000, may be made for "employees" or for those supplying labour who do not provide an ABN or other "non employee" situations (Australian Tax Handbook (2002) ATH, pp 16120 - 1656).

[50]

43 Thus an examination of the contemporaneous records, subsequent statements and declarations made by the Plaintiff and the Defendant, their evidence about these and other related matters establish in summary and in no particular order: i. Between 31 October and December the Plaintiff only worked for the First Defendant and when he worked for Wells his work was "controlled" to some extent, but not entirely, as the Plaintiff worked at the direction of Mr Wells, subject to work being available. However, work was not continuously available. So far as Mr Wells was concerned the Plaintiff could have worked for another "employer/contractor" if work had been made available to him and Wells was the more experienced plumber who had ultimate responsibility for the quality of the work performed. ii. Whilst the Defendant had been advised to withhold tax before the arrangement commenced, he did so on the basis that the Plaintiff had no ABN. In any event he did not withhold the tax as he was required to with each payment, but paid it to the Plaintiff for him to pay to the ATO. iii. The Plaintiff was not supplied with any uniform but was provided with any equipment he needed by Mr Wells, other than hand tools. Transport to and from jobs may or may not be provided by Mr Wells but usually the Plaintiff transported himself. The Plaintiff did not send out invoices, but he never had an ABN even though he had been a contractor to Wells and others before this arrangement. iv. The Defendant made no allowance or payment for superannuation contributions at any time. v. The Defendant made no allowance or contribution for any leave for which the Plaintiff may have been entitled, nor paid any on termination of the arrangement with the Plaintiff's injury. There was not even a "sympathy" payment after the accident. There appears to have been no formal termination. vi. The Plaintiff regarded himself as "employed", because he believed he was to be provided with work that would occupy him "fully".

[62]

55 The Plaintiff suffered burns to his face, torso and arms covering approximately 30 percent of his body. Initially it was thought that he had suffered airway burns. He was treated at Royal Prince Alfred Hospital but was then transferred to the 'Burns Unit' at Concord Hospital where he was initially treated in intensive care. He was finally released from that hospital on 4 January 2002. The burns were not "full thickness", but "partial thickness" burns and although he needed intensive treatment to ameliorate pain, and to assist in the repair process, he did not require "surgery". Instead he was treated with a new process to aid skin repair. The hospital notes detail the intensive treatment he received over almost 3 weeks in hospital. On release from hospital he was fitted with pressure garments and was required to attend outpatients at Concord for dressing changes and other treatment, initially, for 3 months, once a week, and then twice a month for a further three months. He had to travel from his home near Caringbah. By early 2003 there was no longer any scarring on his face, or on the anterior of his chest but he had other scars including extensive discolouration of his right upper limb, atrophic appearance of the skin on the dorsum of his right hand, some deep pigmentation of the skin of his left upper limb, some atrophy of the skin on the dorsum of his left hand, poorly defined pig skin appearance in irregular patches on both thighs, very large noticeable scarring on the posterior aspect of his left thigh and left calf and further obvious scarring on this right thigh and on the bulge of the calf of his right lower leg. The graphic colour photographs of his injuries, or some of them, taken while he was in Intensive Care, underline how fortunate he is not to be more extensively and permanently disfigured. The pain he suffered in the immediate period after 18 December must have been immense. The evidence establishes that the scarred and effected areas are more susceptible to damage from the sun and from injury from relatively minor contact.

[65]

58 The psychologist retained by the Plaintiff, Mr Borenstein, noted that the Plaintiff had made what he described as "a relative, and somewhat miraculous speedy recovery" due in part to the intervention of a new product which prevented skin grafts, a matter spoken of by the Plaintiff. Having had the opportunity of observing the Plaintiff in the witness box and noting the injuries he demonstrated there, and generally accepting his account of the extent of discomfort and the progress of his recovery from injury, it is indeed miraculous that the Plaintiff was neither killed nor more severely and permanently injured than the serious injuries that he in fact suffered. Mr Borenstein was of the view that the Plaintiff as a result of the accident had a "tendency" towards a moderate level of anxiety and the Plaintiff particularly was anxious about returning to the plumbing industry in light of his suffering. He had suffered a significant sense of loss arising out of life style changes and to some extent a degree of depression, described as "mild to moderate", compensated by a considerable increase of alcohol. He was anxious about having to make life style changes and felt somewhat let down by his misfortune, having to "redefine" his life. Mr Borenstein was of the view that the Plaintiff, as at May 2004, was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood consequent upon his injuries. Mr Borenstein was concerned that the Plaintiff may have in fact minimised the psychological reaction he was suffering, seeking to brush it aside and being unable to express his feelings freely. He gave this impression to me when giving evidence. The episode still haunts him I believe. His understated emotion when describing how he was injured and its sequelae was genuine in my view. Mr Borenstein was impressed with the Plaintiff's capacity to make adjustments in his life to meet his new situation and that he would need future counselling. He was concerned also about the suffering of his family seeing him in such a serious condition and having to deal with his recovery. He recommended 12 sessions for future treatment.

[68]

61 To summarise the situation, the Plaintiff suffered very significant injury which must have caused considerable pain and discomfort both immediately and thereinafter for an extended period of time, beyond discharge from hospital. Such was the pain immediately after the explosion that the Plaintiff had to be placed in an induced coma. There was subsequently, for a period of about three months, severe or significant limitation upon the Plaintiff's capacity to move physically and care for himself. There has been improvement over a period of time. He was very dependant upon his mother for personal assistance on discharge from hospital and, in the first three months, in all manner of personal tasks from going to the toilet, bathing, dressing, changing dressings, provision of meals, transport to frequent medical appointments at Concord (which required some hours of travel from the Sutherland Shire and waiting) and other tasks. Although his mother had cooked meals, and washed clothes for him before the injuries, unpaid assistance increased enormously afterwards. I accept that this assistance averaged about 20 hours a week for the first three months and about 10 hours or slightly less for the following three months and slightly beyond diminishing over time, although he was becoming much more independent by late April, or early May. Although more physically active by four months after the explosion, there were considerable limitations cast upon the Plaintiff which he tried to push aside to assert his independence because, simply put, he was no malingerer, desperate to kick start his life and interests if that was physically possible. After 3 months pain was limited. The Plaintiff commenced some physical exercise of a limited nature, but had to as he said he lost 20 kgs in hospital. By late April 2002 he was not fully independent in care of himself. He told examiners on 30 April 2002 and shortly afterward of his great improvement, but he was not the sort of person to "whinge" and was anxious to get on with his life. There remains continuing discomfort (albeit comparatively minor) and limitation upon the Plaintiff's capacity to undertake physical exertions of which he was capable prior to the accident, particularly because of his susceptibility to trauma, sensitivity to sun damage and skin sensitivity to particular chemicals that did not exist before. There is little suggestion, in examination out of Court and in my view in his evidence in Court, of any exaggeration of the extent of his injuries, symptoms suffered as a consequence of his injuries, the development of his recovery or his current condition. I accept on the evidence available to me that whilst he made what could best be described as spectacular progress in his rehabilitation, this occurred over a number of months and the rehabilitation process was a painful, demanding affair.

[69]

62 The consequences of his injuries have relevance not only to assessing any potential economic loss, but also assessing non economic loss, insofar as the injuries have impacted upon his quality and enjoyment of life and related matters. "Non Economic Loss" means any one or more of "pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement" (s.3 Civil Liability Act 2002). In relation to these matters, there was little dispute in the evidence and, in any event, so far as explaining the effects upon him of his injuries, the Plaintiff's evidence on this issue was, to my mind, untainted by exaggeration, hyperbole or untruthfulness. I accept that prior to the accident the Plaintiff was, at the very least, a competent tradesperson with expectations of a career in plumbing which can be a very lucrative occupation, particularly if the Plaintiff had the opportunity of starting up his own business. He had an interest in sport, having played as a child and young adult cricket and soccer, although ultimately his involvement in these sports would appear to have fallen away largely prior to the accident. I accept however that his ability to participate in these sports on a social basis, which would add to the enjoyment of his life, is severely affected given his susceptibility to injury to the affected areas and the susceptibility to damage from exposure to the elements, particularly the sun. He was an exceptional body board rider and there is evidence from him, in articles produced to the Court and other objects (including a T-shirt) that he was highly competitive in this area of activity as a teenager. In fact he had been involved in the international "Pro Circuit" in his mid to late teens, such as it was, some years before the accident. His father conducted business manufacturing body boards and related equipment. I conclude however, that notwithstanding the fact that this particular activity was his main sporting interest, his potential to pursue a career in it had diminished prior to the accident. The material before me shows that he was at his peak in this sport some years before his injuries and that his involvement in this activity had moved, up until late 2001, from the competitive to largely the recreational. The truth of the matter however, for aficionados of surfing in its various forms, is that this recreation gives enormous enjoyment and pleasure, as well as peace of mind. Even if it be said that the Plaintiff's interest or capacity to compete in body boarding competitions had diminished or disappeared, it is a sport that could be undertaken recreationally by him for many years in the future, but for his injuries, and as frequently as opportunity allowed. The primary effect of his injuries on this recreation is that because he must limit his exposure to the sun, his opportunity to participate in this recreation is restricted. Practically all of the "Particulars of Disabilities (sic)" are made out to varying extent, although the claimed psychological damage is ultimately limited and diminishing.

[72]

65 Whilst at the Taren Point Bowling Club he worked between 10 and 30 hours per week and was paid $16 an hour and pursued that work for approximately 15 months. He started working in outside conditions in June 2004 doing labouring work at Kurnell Refinery and later in 2004 began working for a local plumbing business (that is local to the Sutherland Shire) where he earned $750.00 nett per week although he had to take every protection when required to work outside which was the majority of the time. He held that employment at Kurnell for a month and then he obtained employment maintaining water meters which involved mainly work outside, again having to maximise his protection from the sun. He worked for that business for seven months earning approximately $630.00 nett per week. However, in April 2005 he lost his drivers licence for some months in circumstances that are irrelevant and he had to give up that work. He obtained work with another plumbing company performing labouring work in late 2005 however, the work was casual and spasmodic and he was paid a casual rate of $25.00 per hour. In February 2006 he obtained a position with a Miranda plumbing company, working three to four days a week approximately eight hours a day and having a base hourly rate of $20.00 per hour. In July 2006 he obtained another position in plumbing with a Redfern based business, again that work is relatively casual in nature and certainly does not involve "full time" employment. It would seem, particularly since mid 2004, that most of the Plaintiff's employment circumstances have been dictated by factors disconnected to the circumstances of his injuries, such as the loss of licence, the character of the retainer and the availability of work. On the other hand the sensitivity of his skin to injury and damage by trauma or the elements is a permanent feature of his life and if it does not significantly inhibit him, it certainly requires him to be particularly cautious and conservative in order to minimise the risk of any such injury.

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