Hunt v Roads and Traffic Authority of NSW & Anor

It is against this framework that I approach the determination of whether there has been a breach of duty of care on the part of either of the defendants.

A separate consideration of the position of each defendant is required with respect to whether a relevant duty of care was owed by the defendants.

The plaintiff submitted that in conformity with authority, the first defendant RTA, as lessor of residential premises, owed a relevant duty of care: Jones v Bartlett [2000] HCA 56; 205 CLR 166. The first defendant RTA ultimately accepted that proposition, but relied upon arguments concerning the scope of that duty. Those arguments will be given separate consideration.

The second defendant agent argued that it did not owe the plaintiff a duty of care.

The basis of that argument was that there was no relevant relationship between the plaintiff and the agent that gave rise to a duty of care. The argument contended that since it was merely the agent of the first defendant, its responsibilities must be governed by what it was permitted by the agreement. It was argued that something more than the mere status of an intermediary was required in order to establish a duty of care.

The second defendant agent relied upon the absence of a direct relationship between tenant and the agent other than to merely act as a conduit "or an emanation of the owner". In developing that argument the agent submitted that something more than mere conduit status was required in order to establish a duty of care, for example a complaint by a tenant. It was argued that absent such evidence, there was an insufficient basis upon which "to impose a duty on the agent vis-a-vis the tenant".

The second defendant sought to distinguish its contractual responsibilities to the first defendant RTA from any responsibility claimed to be owing to the plaintiff. In making that argument, it was submitted that "the things which might, but do not, establish a duty of care include complaint by the tenant to the agent which would require the agent in the exercise of reasonable care to pass on the complaint or, in limited circumstances, to act on it. No other circumstances in this case gave rise to a relationship that was sufficiently close to involve a duty owed by the second defendant to the plaintiff".

For the reasons that follow, I consider the submission made on behalf of the managing agent, to the effect that it did not owe a duty of care, to be flawed.

First, I consider that the submission runs contrary to well accepted, refined and restated notions of foreseeability arising from the neighbourhood principle for determining the categories of persons affected by the acts or omissions under examination : Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562 per Atkin LJ at [3], p 580; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at [1], p 44.

Secondly, I consider that the second defendant agent was not merely a conduit or intermediary for communication with the owner. It had its own set of obligations under the agreement between itself and the owner of the premises, but as the premises were let for residential purposes, the obligations to the owner also had the potential to affect the tenants residing in the premises. This was particularly so in the case where repairs to the premises were required, and where, in a variety of ways, safety issues could arise to affect the safety of tenants. The agent undertook day-to-day maintenance and repairs to the property, as is evident from the maintenance log.

The agreement between the defendants bespeaks the existence of a duty of care imposed on the agent. This view is supported by a number of the provisions of the agreement. The experience of the agent in the provision of services was noted : Page 1 of 58 recital (B). The agent had authority to engage contractors to carry out work on the premises: Page 6 of 58. The agent was required to exercise skill and diligence in the exercise of its functions which denoted an authority to act : Pages 5-6 of 58 clauses 3.1.1 and 3.1.2 (a), (b) and (c). The agent was required to ensure compliance with all codes and standards and employ suitably qualified contractors : Page 6 of 58 clauses 3.1.2 (d) and following. The agent had authority concerning residential lettings. The agent had power to determine the work to be carried out on the premises, including minor repairs and including the determination of the type and manner of work. The agent was also obliged to appoint and supervise repair contractors : Page 9 of 58, clause 3.10.1(b). The agreement defined "minor repairs" as not exceeding $2000.

It is clear from these provisions in the agreement that the agent was, under the terms of the agreement, invested with relevant responsibilities normally vested in the owner of the premises. In that sense, the agent also had a degree of control of the premises that carried with it a duty of care.

Thirdly, I infer from the fact that the second defendant had a property management division within its structure, that it was more than a mere communication conduit. Property management obviously involves much more in the way of obligations than merely collecting and remitting rent. In the context, the management component in the description of property management connotes something more than mere clerical and accounting procedures. This view is supported by three relevant areas of evidence, that serve to confirm the agent had a more active role in connection with the property. In my view, that active role carried with it responsibilities.

One such area of evidence was the fact that the agent maintained a commercial relationship with Mr Bechara's company whereby it called upon Mr Bechara to carry out work from to time on the properties under its management, as and when such work was required.

Another area of such evidence was the fact that the agent had an inspection role in respect of the premises and in fact exercised that role, as is evidenced by Mrs Karakitsos, who referred in her evidence to the premises being inspected by a property manager employed by the second defendant.

A further area of such evidence came from the testimony of Mr Simpson. His evidence indicates that the agent's inspection role obviously extended to an obligation to exercise judgment concerning the need to effect repairs to the premises. This involved a delegated authority to consider the need for any repair work to be carried out to the premises. That role required the making of a number of judgments, including assessing the need for repairs, assessing the likely quantum involved in repairs and whether outside labour, such as Mr Bechara, should be retained, and paying for any work that it commissioned in this way, before passing on the paper work to the RTA for accounting purposes.

I consider that an overall view of these matters indicates that the activities and responsibilities of the agent could not reasonably be characterised as being consistent with the status of a mere conduit. The agent's role involved much more than conduit status and carried with it responsibilities, which, when exercised, had the potential to affect others, including the plaintiff. Pivotal to this discussion was the decision of the agent to engage a handyman cleaner instead of a glazier to deal with glazing repairs, where it was reasonably foreseeable that glazing issues had the potential to give rise to safety issues, not only to tenants of premises but to visitors as well.

In my view these matters indicate that the agent was more than an "emanation" of the owner, as has been claimed.

In my view, the formal contractual relationship between the plaintiff and the first defendant RTA, and the agency relationship between the RTA, the plaintiff and the managing agents, which as founded upon the lease and the resultant tenancy that flowed from that lease, necessarily meant that there was the requisite proximity of relationship between the parties. These circumstances raised for consideration whether there was a relevant duty of care owed by the respective defendants. I have concluded that each of the defendants owed a relevant duty of care in the circumstances.

Subject to the need to consider the requirements for findings of negligence under the provisions of the Civil Liability Act 2002, I consider that according to the conventional principles arising from the law of negligence, a sufficiently close relationship has been shown to exist to give rise to a relevant duty of care on the part of the second defendant agent. The same analysis and conclusion applies on the cross-claim brought by the first defendant against the second defendant.

Duty owed by cross-defendant managing agent to RTA as cross-claimant

In my view, the terms of the contractual relationship between the defendants gave rise to a duty on the part of the second defendant agent with respect to its relationship with the first defendant RTA concerning the manner in which work and repairs on the property was carried out. The first defendant RTA had, by the agreement, clearly intended that some of its day-to-day responsibilities associated with the ownership, maintenance and repair of its rental property were to be shared with the agent. The agent accepted a fee for this and must therefore be taken to have accepted the concomitant responsibilities that went with that arrangement.

Content of the duties owed by the respective defendants

Having determined that each defendant owed the plaintiff a relevant duty of care it is necessary to define the content or scope of such duties before analysing the alleged breaches of such duties. Identifying the content or scope of the respective duties owed by the defendants requires separate consideration according to the circumstances of each of the defendants.

The plaintiff argued that in the circumstances of this case, the scope or content of the duties of care respectively owed by both the first defendant RTA and the second defendant agent included liability for defects in the premise of which they were aware of, or which they ought to have been aware at the time the lease was entered into : Wu v Carter [2009] NSWSC 355 at [16] - [25] : Sakoua v Williams [2005] NSWCA 405.

Consistent with authority, the plaintiff argued that the defendants owed a duty to take reasonable care to avoid a foreseeable risk of injury, but not to the extent of making the premises as safe as reasonable care could make them : NSW Department of Housing v Hume [2007] NSWCA 69 per McColl JA at [66] - [88]. The plaintiff argued this duty should extend to ensuring a reasonable response to a foreseeable risk, and in the circumstances this required a reasonable response of inspection of the property and a removal or repair of the defect : Baker v Gilbert [2003] NSWCA 113 per Ipp JA at [38].

Accepting the applicability of the cited analysis by McColl JA in Hume, the first defendant RTA conceded that the content of the duty of care it owed to the plaintiff was to take reasonable care to avoid foreseeable risk of injury, however it sought to make this duty co-terminous with the terms of the lease, notably the first clause of Exhibit "B"at page 6, which relevantly provided: "Having inspected the property prior to signing this contract, the premises are accepted in the condition as inspected unless an agreement has been made to undertake specified work, additions or improvements as stated in Part 2: The Ingoing Inspection Report".

The first defendant RTA submitted that the terms of the lease was a matter that informed the practical content of the duty of care owed in this case. It was submitted that the cited term of the lease enforced the common law notion that the RTA was not obliged to make the premises as safe as reasonable care could make them. It was submitted that by entering into a lease with this term the plaintiff had accepted this position.

In making that submission the first defendant RTA necessarily accepted that the glass in the door was a defect existing in the premises at the commencement of the tenancy. It was further submitted that there was "no contractual obligation on the RTA to effect a 'repair' of the glass, in the circumstances proven, and it would be incongruous for the common law to require it".

In my view the plaintiff's inspection of the premises prior to entering into the lease has no bearing on the liability issues in this case. The cited acceptance clause does not reasonably absolve the first defendant RTA from the need to take reasonable care. It cannot have the effect of placing a caveat emptor like obligation on the plaintiff in respect of dangers not readily apparent on inspection.

Content of duty owed by the second defendant managing agent

The second defendant managing agent accepted correctly in my view, that if it was to be held to have owed a duty of care, the content of that duty would be limited to taking reasonable care to protect tenants and occupants from reasonable foreseeable harm.

Breaches of the duties of care owed 189. Having reached the conclusion that each of the defendants owed a duty of care with defined scope, it remains necessary to consider the liability and causation requirements of the Civil Liability Act 2002 in conjunction with common law considerations. For the reasons that follow, applying those considerations, I have concluded that each of the defendants was in breach of their respective duties of care, and they were therefore negligent.

The breach relied upon by the plaintiff was the failure of the respective defendants to replace the door of the premises with safety glass in 1998 and folllowing. The plaintiff submitted that it was well known in 1998 that where glass being replaced was likely to be the subject of human impact, it was appropriate to replace broken glass with safety glass : Exhibit "C", page 100. The plaintiff submitted this obligation rested on each defendant.

That submission has to be evaluated in light of s 5B of the CL Act. In my view the requirements of s 5B have been fulfilled in this case.

First, it must have been known to the defendants that glass doors in the premises were liable to become broken : s 5B(1). This could have been for a variety of reasons. This is plain from the very nature of glass that it is common knowledge in the community. It was also known to the defendants from the history of break-ins at the premises and, in 1998, the need to engage someone to replace glass that was broken.

Secondly, it must have been within the common knowledge of the defendants that one of the means by which a glass panel in an entry door could become broken included breakage by human impact, either by deliberate means, as occurred during a break-in to the premises, or due to possible inadvertence. Either way, the risk of injury due to human impact with a glass door on the premises was not a remote, flimsy or fanciful risk. In my view the occurrence of a lacerating injury as a consequence of human impact with a glass door on the premises was reasonably foreseeable at all relevant times, at least from 1998 and up to, and including the time of the injury : s 5B(1)(b).

Thirdly, if there was human impact with a glass panelled door, the probability of the occurrence of harm arising from a lacerating injury was high, justifying the taking of precautions against the risk of such harm. The potential for a serious lacerating injuries was real : s 5B(2)(a) and (b).

Fourthly, when the burden of taking precautions is prospectively weighed, it is plain on the evidence that the burden of taking precautions against harm due to a lacerating injury from broken glass were not unduly burdensome as there was no great difference in cost between using annealed and safety glass when replacing a broken glass door panel : s 5B(2)(c). In my view this analysis extended to the circumstances where, in this case, the replacement of broken annealed glass to the bedroom door in 1998 raised questions as to whether annealed glass in other doors, particularly the main entry door, should also be undertaken because of the real prospect that injury could occur at those locations, due to human impact.

Fifthly, a consideration of the social utility of the activity giving rise to the risk of harm did not contra-indicate the need to take precautions. The provision of rental housing has a high social utility. The risk of injury and disability due to inadequate consideration of the need to take safety precautions has no social utility : s 5B(2)(d).

Sixthly, taking these considerations into account, I consider that in 1998, and following, a reasonable person in the position of either of the defendants would have taken the precaution of installing safety glass where annealed non-safety glass was shown to have been located in doors in the premises where human impact was reasonably foreseeable : s 5B(1)(c). I reject the submission made by the second defendant agent that the risk was so insignificant that no reasonable person would have taken precautions against such a risk.

In 1998 a glass door to the bedroom of the premises became broken and required minor repairs by way of glass replacement. On that occasion, the first defendant's agent, with the knowledge of the first defendant, employed a handyman cleaner, Mr Bechara, who was not a glazier, to inspect the damage and to effect glass repairs. On that occasion, neither defendant employed a glazing contractor to repair the broken glass. This conclusion is supported by the absence of any invoice from glazing contractors for the repair works.

It is plain from the expert evidence that if a glazing contractor had been employed, in accordance with practice in the glazing industry at the time, a recommendation would most probably have been given to replace non-safety glass in areas of foreseeable possible human impact, as was required by Australian Standard AS 1288, as was explained by Dr Cooke. As Dr Cooke is an architect, familiar with the application of the standard to building repairs at the relevant time, I prefer his evidence on the interpretation and application of the standard to the interpretation of Dr Jacob, whose expertise on building matters, as distinct from building materials, was less relevant and less extensive.

Breach of duty of care by the second defendant managing agent

The agent was the first line of enquiry and point of consideration concerning the repairs to broken glass in the premises. In my view it failed to discharge its duty by retaining and supervising a suitably qualified contractor, as the first defendant RTA required it to do.

Instead of employing a suitably qualified contractor, the agent retained a handyman cleaner who was not a qualified glazier. In doing so, the agent failed to ensure compliance with the applicable building codes and standards, notably AS 1288 as was explained by Dr Cooke. That standard required replacement glass to be safety glass as there were no chair rails fitted to the glass door of the premises. A glazier ought to have known this, a handyman cleaner would perhaps have been excused from being aware of the requirements of the standards.

Whilst it was not unreasonable for the agent to engage a handyman cleaner from time to time to carry out some minor odd jobs and rubbish removal, such reasonableness did not extend to carrying out work which ought to have been carried out by a suitably qualified contractor who would be taken to have been aware of applicable safety standards. The agent had an obligation under the agreement it had with the RTA that repair work would be appropriately supervised for compliance with codes and standards. This necessarily meant that the agent was expected to be aware of the requirements of such standards or to at least seek suitably qualified advice.

Whilst a domestic home owner with sufficient skill to undertake replacement of a broken glass panel may have acquired a replacement panel of annealed glass in the circumstances, either in ignorance of the requirements of the standard or out of reasons of economy, the position of a sizeable commercial agency with a sizeable property portfolio under its management is in quite a different position. This is evident from the terms of the agreement the agent had with the RTA on matters of repairs and maintenance so as to import high levels of accountability and responsibility into the relationship, including considerations of safety to tenants and entrants onto the premises.

It was plain from the evidence of Mr Simpson that although he was the principal of the second defendant agency, he not only did not know the difference between safety glass and annealed or non-safety glass, but he stated that he had no interest in finding out either. There was no evidence that the responsible employee working under his control within the agency had any greater awareness than he had concerning the relevant properties of different types of glass. This was perhaps the systemic reason within the second defendant agency for the decision to employ the handyman cleaner to carry out the glass repair work without supervising the safety issues that arose for consideration. Consequently this is the probable explanation for the second defendant agent not realising that a suitably qualified contractor needed to be consulted to review and carry out the work.

It appears to me that the agents simply asked Mr Bechara to look into the repairs required and accepted his quotation for repairs without giving further consideration to the other obligations they were required to be observed under the agreement the agents had with the RTA.

In this case the second defendant agent was a significant commercial operator in the field of property management at the time, managing many hundreds of rental properties. Such an operation in my view required a greater standard than that observed for the consideration for matters of safety concerning glass repairs. This required more than the simple engagement of a non-glazier to consider the need and extent of the nature and extent of repairs required in the circumstances. I consider that what the agent did in these circumstances was too simplistic for what was required.

I find that the agent's failure to seek out and engage a suitably qualified contractor amounted to a breach of the duty of care that it owed to take reasonable care in the circumstances. As such, this was a failure that was within the known categories of exceptions that are recognised as forming a basis for liability even where an independent contractor has been engaged to carry out necessary work : Tweed Shire Council v Hancomatic Music Pty Ltd & Anor [2007] NSWCA 350 at [177].

In my view, a handyman cleaner who had experience in the building industry was not a suitably qualified contractor in the circumstances of this case. There was no evidence that Mr Bechara had a builder's license. There was evidence within Exhibit "B" in the form of invoices from Mr Bechara's company which indicates, as at 18 February 2004 and 3 May 2005 that his company had a license number R77950 and was fully insured, and undertook work that involved painting, lawn-cutting, and general cleaning, rubbish removal, building maintenance and carpet shampooing. The oral evidence disclosed Mr Bechara to have been involved in cleaning, maintenance and building management for 35 years. There was no evidence that the license referred to was a builder's license and even if the inference was available that it was, and I do not consider it was, there was no evidence that such a license was in fact held in 1998. In my view, at the relevant time, within the terms of the agreement between the defendants, Mr Bechara could not have reasonably been regarded as being a suitably qualified contractor on any account where considerations of glass safety were involved.

I find that if a suitably qualified person had been engaged, this would have required the engagement of a glazier. If that had occurred I consider that it would have been recognised that even though the glass door panels in the premises were installed prior to the introduction of the standard, the replacement glass would have been required to have been safety glass in the manner and to the extent explained by Dr Cooke, on a reasonably prudent and common sense approach, recognising the risk of injury from broken glass was not far fetched or fanciful : NSW Department of Housing v Hume per McColl JA at [95], citing Jones v Bartlett (at [58]) per Gleeson CJ.

The effect of engaging a suitably qualified glazier would have been to ensure the door panels in question were replaced with safety glass as a matter of safety and prudent risk management in the residential tenancy setting where human impact by adults or children, either by inadvertence or otherwise, was reasonably foreseeable. This was the purpose of the standard. A suitably qualified contractor, if engaged, ought to have recognised this and acted accordingly. The additional cost associated with using safety glass on door panels was negligible when compared to the rental income received and when compared to other amounts that the owner was prepared to expend on the property by way of maintenance and repair from time to time. In my view, these considerations are in any event secondary to considerations of safety when viewed prospectively at the time.

In my view, an inappropriate contactor was hired by the agents to carry out the repairs. That contractor was not appropriately supervised. As a result, the industry standard of replacing annealed glass panels on doors with safety glass was ignored. The agent did not call any witness to indicate that the engagement of a handyman cleaner to do the job of assessment and repair was accepted industry practice. Even if such evidence had been called, I doubt that it would have been determinative on the issue of the appropriate discharge of the duty of care owed having regard to the safety issue of the potential for injury due to human impact with glass.

I consider that for the foregoing reasons, the second defendant agent was negligent, having regard to both common law and CL Act considerations. In my view, the actions of the agent, in engaging a handyman cleaner and not a safety aware glazing contractor, amounted to a breach of duty of care on the part of the agent.

The plaintiff submitted that the first defendant RTA was in breach of its duty of care in that it did not have a glass replacement policy in place, and it consequently failed to adequately monitor and check upon the activities of its agent, the second defendant, with respect to the repair of the broken glass bedroom door panel in 1998.

The first defendant RTA submitted that the contended basis of liability, namely the alleged failure to implement glass repairs in 1998 according to AS 1288, should fail as that standard was directed to glaziers and not to landlords.

The first defendant RTA also argued that by retaining a managing agent to whom it had delegated the task of arranging repairs and arranging inspection following repairs, it had discharged the duty of care it owed, particularly since the post-repair inspection would not have readily revealed to an unskilled observer that the glass used in the repair in question was not safety glass.

It is of some significance to the analysis of the liability of the RTA in this case that it retained a significant measure of control of the activities of its agent the second defendant, through the system of consultation with the RTA property manager and related systems of reporting and the payment of contractors. For that reason I reject the submission that the RTA had discharged its duty of care by engaging the agent as an independent contractor.

In this regard, with the measure of control asserted by the RTA, I consider that it ought to have been obvious to the RTA, when the second defendant agent had reported the 28 October 1998 payment to Mr Bechara for repairs recorded in Exhibit "B" as "break-in glass on front door smashed and timber frame damaged", that the details on the invoice revealed that a glazier had not been involved in the repair of this damage.

In my view, if the RTA had a proper glass policy in place at that time, the responsible RTA property officer ought to have realised, when reviewing this account for payment, that a handyman cleaner and not a glazier had undertaken the repairs. This is of some significance concerning adherence to required standards for safety because the RTA had ensured that its agent the second defendant had to be aware of applicable standards for contractors carrying out repair work.

By Schedule 3 to Exhibit "D" the RTA required its agent the second defendant to "take the lowest acceptable quote" for minor repairs up to $2000. By clause 3.1.2(D) of that exhibit the RTA required the agent to engage the services of contractors who were "suitably qualified and skilled in their several occupations" to carry out repair work on its behalf.

By clause 3.1.2(b) the RTA required its agent the second defendant to ensure that all work done on its behalf complied with " the requirements of all applicable codes and authorities' requirements and all relevant Australian Standards applicable" to the services provided. In connection with repairs to glass, I accept the evidence of Dr Cooke that this included compliance with AS 288 with respect to the installation of safety glass, as was explained by him.

Clause 3.6.2 of Exhibit "D" required the agent to comply with all directions, procedures, policies relating to occupational health, safety and security pertaining to the properties which were the subject of the agreement.

The cumulative effect of these obligations were undoubtedly onerous on the agent and given their stringent nature, as spelled out in the agreement, I infer that the RTA must have had a policy and procedure to monitor compliance with those obligations. These provisions were of obvious importance to the RTA and it is also obvious that it was important to the RTA that they be adhered to. I infer that the RTA property officer to whom the agents reported was required to fulfil the function of monitoring such compliance. It was an important function as it related to the safety of repairs to residential premises, and also the safety of the premises.

I consider that the contractual provisions, especially clause 3.6.2, demonstrate that the RTA retained a significant measure of control over the functions of its agent the second defendant with regard to these matters.

No RTA witness was called to rebut the availability of the foregoing inferences. In the light of the provisions of Exhibit "D" I infer from the absence of such testimony that the RTA did in fact have policies and procedures for the management of safety issues on its residential premises, including the premises that are the subject of these proceedings.

Against this background, and given the detailed nature of the agreement it entered into with its agents, and given the large number of suburban residential properties it was renting to tenants, I consider it inconceivable that the RTA would not have had a glass policy in 1998. In this regard I consider that as a large volume commercial landlord, through its responsible staff members, the RTA ought to have been aware of the existence of applicable Australian standards for repair and replacement of broken glass in residential premises. It is difficult to draw a contrary conclusion because the agreement assumed the existence of relevant standards.

I consider that the large scale of the RTA's rental undertaking at the time required that it have a glass repair and replacement policy. I also consider that since glass replacement involved compliance with applicable standards and standards of workmanship, it was prudent to have systems in place to ensure that any glazing work that was needed should be carried out by suitably qualified glazing contractors.

I consider that hand in glove with that requirement was the requirement that standards of repair and the like be implemented reasonably and safely, particularly as the RTA benchmark requirement of the agent was to accept the lowest acceptable quotation for minor repair work. In my view that stipulation made it all the more important that any work carried out pursuant to that arrangement be properly monitored by the RTA for compliance with the required standards, contractually, safety wise and otherwise.

Although there was no evidence from the RTA of the existence of a policy for glass repair and replacement in 1998, I consider the evidence compels the view that as a matter of ordinary prudence, to ensure compliance with Australian standards to which the RTA required adherence, it ought to have had such a policy. This is especially so where the RTA held such a substantial rental property portfolio and the rental of such properties was not its core but secondary business activity.

Being a large scale institutional lessor of residential properties I consider that the RTA should have had a prudent management system in place for managing glass repairs, amongst other matters. I consider that if this had been the case, the RTA property manager responsible for liaising with its agents and for ensuring compliance with standards would have more likely than not have realised that if Mr Bechara, a non-glazier, had carried out the glazing inspection and repair work, this raised a question of whether the work had been done by a suitably qualified contractor as required by the agreement.

In this context I construe suitably qualified contractor to refer to a qualified glazing contractor.

On reviewing these matters I find that the RTA failed to recognise that its agent had engaged a contractor to effect glass repairs where that contractor was not suitably qualified to carry out glazing work. As a consequence, the RTA failed to recognise that its agent had arranged for repairs, the adequacy and safety of which was questionable in the circumstances. By these means the glazing work carried out by Mr Bechara, with the knowledge of the RTA, evidenced by the payment of his account, ought to have been recognised to have been contrary to the standard demonstrated by the RTA in its agreement with the second defendant agent.

In this way, the RTA acquiesced to the non-engagement of a suitably qualified glazing contractor, and thus caused or permitted non-safety glass to remain installed in the premises. The consequences of the non-engagement of a suitably qualified glazier, as explained by Dr Cooke, whose evidence I prefer on this issue, was that no-one on behalf of the RTA had turned their mind to the need to ensure that when repairing the broken glass in the premises following the break-in in September 1998, that the replacement glass should not only have been safety glass, according to the practice in the glazing industry at the time, but that the installation of replacement safety glass should have been extended to include the glass panels in the entrance door where the plaintiff was later injured. The engagement of a non-glazier to do the work meant that the contractor who was engaged would not have been in a position to give advice as to what the industry recommended repairs would entail. Instead, the lowest quotation was accepted without regard to the need for suitable qualifications. I find that the RTA acquiesced to this arrangement.

I consider that the suggested measures of replacing the glass door panels in the house with safety glass were required because the door in question had no chair rail, and, contrary to the view of Dr Jacob, who gave a non-measured estimate, it obviously contained a glass panel area of greater than 0.5 square metres. The significance of these matters was that in 1998, the requirements of AS 1288 applied, and this required that safety glass be installed at these locations in the premises. This is what Ordinance 70 required. This is what the BCA required.

On the basis of the foregoing reasons, I consider that the failure of the RTA to ensure that safety glass had been installed at these locations in the premises amounted to a failure to exercise reasonable care in response to what were then reasonably foreseeable safety considerations concerning the risk of lacerating glass injuries from human impact with a glass door panel at the entrance to the premises. The consequence was that there was a concomitant failure to inform the plaintiff that the door did not contain safety glass panels.

For the foregoing reasons, I find that the first defendant RTA was in breach of its duty of care and was therefore negligent, having regard to both common law and CL Act considerations.

The plaintiff submitted that causation of harm has been made out on both common law and CL Act considerations. The plaintiff must prove causation according to the requirements of s 5D of the CL Act : s 5E.

In contrast, on behalf of the defendants it was submitted that the injury sustained by the plaintiff was caused by the materialisation of either an obvious risk according to ss 5F and 5G of the CL Act, or an inherent risk according to s 5I of the CL Act. The position would be different if I had been satisfied that the plaintiff hit the glass panel of the door deliberately, but this is not the case. In my view ss 5F to 5I are of no application to the circumstances of this case. There was no inherent or obvious risk of injury involved in the activity of walking up the stairs to the front door of the premises. I reject the defences based on these sections.

To establish factual causation the plaintiff must demonstrate that the negligence relied upon was the necessary condition for the harm he has suffered : s 5D(1)(a) of the CL Act. The plaintiff must also show that it is appropriate for the scope of liability to be extended to the harm encountered by the plaintiff: s 5D(1)(b) of the CL Act.

In this case I find that the presence of the non-safety glass panel in the front door of the premises was the necessary condition for the injury to the plaintiff. If the glass that was impacted by the plaintiff's right hand had been laminated or safety glass it would have been most unlikely that the plaintiff would have suffered the lacerations in question when he fell forward thereby impacting his hand against the glass panel : s 5D(1)(a) and (b) of the CL Act. In this regard I accept the evidence of Dr Cooke concerning the properties of safety glass. This case is unexceptional from a causation perspective.

In arriving at this conclusion I reject the argument made by the first defendant RTA that the plaintiff has not established causation because the evidence of Dr Jacob was to the effect that toughened or safety glass can still generate shards with jagged edges, thereby suggesting the plaintiff would have suffered significant injury anyway. I reject that argument as speculative since Dr Jacob only advanced that suggestion as a possibility and there was no evidence, medical or otherwise, that suggested the impact of the plaintiff's hand with the glass was of sufficient force to cause jagged shards and penetration of the panel had it comprised laminated or safety glass. In fact the evidence was to the contrary. Dr Cooke described how the sandwiched layers of glass combined with a layer of plastic that constituted safety glass, were designed to avoid the breaking and shattering patterns of non-laminated non-safety glass. I prefer the evidence of Dr Cooke in this regard to that of Dr Jacob. I therefore find that the plaintiff has established causation in both the factual and in the legal sense.

The defendants have each argued that the plaintiff was injured as a result of his own contributory negligence. The combined substance of those defences was that the plaintiff had allegedly: (a) failed to watch where he was walking or to keep a proper lookout;

(d) as a resident of the premises, he knew or ought to have known of the risk of injury, including the risk of injury due to the existence of a glass panel in the front door of the premises.

In my view, for the reasons that follow, neither of the defendants have discharged the necessary burden or onus upon them to prove that there was contributory negligence on the part of the plaintiff in connection with the occurrence of his injury, or at all. In my view this conclusion arises from a consideration of the particularised allegations of contributory negligence when weighed with the array of evidence concerning the events leading up to the plaintiff's injury.

There is no evidence in the form of any recounted observations or positive assertions from an eyewitness, or as a result of any admissions or concession from the plaintiff, to the effect that he had either failed to look where he was going, or that he had somehow failed to take care for his own safety, or had somehow ascended the stairs in an unsafe manner. Accordingly, an acceptance of the contributory negligence arguments advanced by the defendants based upon these propositions necessarily depend upon the drawing of inferences that the plaintiff had conducted himself in a manner that could reasonably lead to the conclusion that he had failed to take care in these respects.

It is fundamental that there must be an evidentiary foundation for the drawing of such inferences. Invoking mere speculation, unsupported by evidence that would reasonably enable inferences to be drawn is not permitted. Where affirmative proof of a proposition, such as contributory negligence, is not available, it is sometimes sufficient if the circumstances appearing in evidence give rise to a reasonable and definite inference of contributory negligence. In this regard, the circumstances relied upon in favour of drawing an inference of contributory negligence must amount to more than giving rise to conflicting inferences of equal degrees of probability so that the choice between such available inferences remains a mere matter of conjecture : Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, citing with approval an earlier decision of the High Court in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1.

I consider that in this case there is no reasonable foundation within the evidence to support an inference of the kind sought by the defendants, other than by conjecture. On the evidence adduced in this case, the notion that there must be a finding of contributory negligence simply because the plaintiff fell forward, involves an inappropriate pathway of reasoning.

There is evidence from Dr Cooke to the effect that on the basis of his inspection of the premises, there was nothing about the stairs where the plaintiff was standing that would suggest a faulty design, construction or condition of those stairs. In the evidence given at the hearing, the parties did not explore any of the relevant factors that might reasonably have been expected to have been canvassed in order to base a claim of contributory negligence.

In this regard, there was no evidence or questions directed at describing the manner of the plaintiff's foothold and the position of the plaintiff's feet on the stairs at the time he fell, that might give rise to a suggestion of contributory negligence. Similarly, the condition of the stairs such as whether or not they were wet, dry, slippery or slip retardant, clean or contaminated, and if the latter by what means and to what effect. Similarly, the matter of the plaintiff's footwear was not explored. Nor was the state of the lighting over the aspect of the stairs, explored in evidence.

It is evident from the foregoing considerations that for proof of the alleged contributory negligence, the defendants simply point to the fact of the plaintiff having tripped, slipped and fallen forward in order to sustain that argument. In my view, in the absence of more, the contributory negligence arguments based upon notions of failing to keep a proper lookout or failing to ascend the stairs safely must necessarily be seen as merely amounting to conjectural speculation, and they must therefore fail. This is not a case where the defendants can rely upon the fact of the plaintiff's trip or slip as itself providing evidence of his alleged contributory negligence.

It has to be acknowledged that the plaintiff, as a resident of the premises, must have known of the existence of the glass panel in the door, and therefore must have realized that there was a risk of injury from breaking glass due to the location of that glass. However, that said, something more in the way of evidence is required in order to sustain an allegation of contributory negligence. It is also axiomatic that accidents occur in a wide variety of situations, including situations involving the domestic breakage of glass. The risk of glass breakage was ever present. The relevant inquiry is not the ever-present nature of that risk posed by glass that could break due to human impact, but rather, an examination of the activity that was being undertaken at the time when the glass had broken and caused injury.

In my view, merely pointing to the fact of the plaintiff slipping and falling on the stairs, as the defendants have done in this case, without more, does not bespeak contributory negligence on the part of the plaintiff. The plaintiff was walking up the stairs when he missed his footing. A moment of inattention, inadvertence, if that is what occurred in this case, does not amount to contributory negligence without more. This is acknowledged in the authorities, for example, in NSW Department of Housing v Hume [2007] NSWCA 69, where, at [75] McColl JA cited the following passage from the judgment of Mason J in Shirt: "54. It was reasonably foreseeable that persons might slip and fall when ascending or descending these stairs. This could happen in circumstances either involving fault or absence of fault on the part of the user …"

In my view the foregoing cited comments are apt to the circumstances of this case. The defendants have not discharged the onus of establishing there was contributory negligence on the part of the plaintiff.

Accordingly, for the foregoing reasons, I reject the arguments claiming there was contributory negligence on the part of the plaintiff.

Consideration of Issue 5 - Apportionment between defendants - cross claims

Following upon my conclusions that each of the defendants was negligent, it becomes necessary to apportion responsibility or blame between them for the plaintiff's injury, according to the established principles of justice and equity.

By its cross-claim the first defendant RTA seeks indemnity or alternatively, just and equitable contribution from the second defendant managing agent, in respect of its own liability to pay the plaintiff damages having regard to the respective responsibilities of the parties for such damages: s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

This requires that the respective responsibilities of the defendants be rationally weighed for the purposes of apportionment. For the purposes of assigning responsibility between the respective defendants, I do not consider the method of determining the degree of blame of the second defendant agent to be materially different when viewed as having arisen either as a breach of contract, or as a breach of duty of care in tort, although the existence of the contract and its terms are material factors in the apportionment.

Subject to a consideration of the argument by the RTA that it is entitled to a full indemnity from the managing agent, the fact that the RTA has been found to have been negligent is not a bar to it recovering damages for breach of contract on its cross-claim against the second defendant managing agent : Florida Hotels Pty Ltd v Mayo [1965] HCA 26; (1965) 113 CLR 588, per Barwick CJ at [33]; p 599; Oxley County Council v McDonald & Ors [1999] NSWCA 126 per Sheller JA at [66] - [68].

That said, I consider that since the RTA did not delegate its entire responsibility for the supervision of repairs to the managing agent, this is not a case where a full indemnity could be successfully invoked by the RTA.

In considering the degree of responsibility of the RTA in this case, I consider that the successive failures to institute and maintain a glass replacement policy, the absence of evidence of a system of supervision and inspection of its properties, including the supervision of its agents, have to be measured against the delegation by the RTA of shared responsibility to a property management agency on a very large scale, in respect of numerous rental properties, in return for the payment of significant management fees charged by that agency.

On the other hand, the managing agent was a specially licensed entity, and must be taken to have had special expertise in managing rental properties. It had a sizeable property management department and employed a staff of dedicated property managers whose functions included not only collecting and accounting for rent monies received, but also to receive reports from tenants concerning any problems arising in connection with the premises, and then acting on such reports, and seeing to the proper commissioning of repairs by suitably qualified contractors, either within its $2000 delegation, or in conjunction with appropriate RTA property managers with respect to any repairs of higher value than $2000. It is also of considerable significance that the agent had the obligation of supervising the contractors it engaged in that way, as well as reporting back to the RTA on such matters.

In these circumstances I do not accept the submission made on behalf of the RTA in which it claims total indemnity from the agent. Total indemnity is not justified in this case because I consider that the RTA cannot be taken to have totally discharged its obligations to the plaintiff by delegating its responsibilities to the agent. The agreement between the defendants demonstrates that the RTA retained significant responsibility through its required system of accountability and reporting by the agent. This was only diminished to a degree in respect of minor repairs under $2000 in value, in which case the agent acted in the place of the RTA, at least until it came time for accounting and reporting to the principal, being the property management section of the RTA.

That said, in my view the respective responsibilities in such circumstances are not equal. In my view the agent should bear the greater responsibility where it responded to minor repairs. I consider this to be so because for minor repairs, the actions of the agent were intended to be, at least temporarily until the time for accounting and reporting, in the place of the RTA. I consider the conclusion that there should be unequal responsibility is also mandated by the fact that the RTA did not relinquish total control of inspection and repairs, evidenced by the reporting and accounting system it had in place, and the chain of reporting and communication that existed in the commercial relationship. It is clear from this that the RTA used the interposition of the agent as a filter, not as an exclusive or definitive procedure for managing repairs.

In these circumstances, where the responsibilities were not equal, and where the agent must bear a higher proportion of blame, but not to the degree that approaches a total eclipse of any blame that should be borne by the RTA, I consider it just and equitable between the defendants, that on the cross-claim the ratio of shared blame should be assessed at 75 per cent : 25 per cent, with the second defendant managing agent bearing the greater proportion of such blame.

I have concluded that the responsibility of the defendants for the occurrence of the plaintiff's injury should be shared in the ratio 25 per cent on the part of the first defendant, the RTA, and 75 per cent on the part of the second defendant, the agent.

In the paragraphs that immediately follow, I set out my review the evidence of the plaintiff, his background, his work history, his injuries, the treatment he received and the medical evidence he has obtained. At the conclusion of that review I set out my findings concerning the damages issues, before moving on to an assessment of the plaintiff's entitlement to damages.

Review of evidence of plaintiff's pre-injury situation

I set out my review of the plaintiff's pre-injury situation.

The plaintiff stated that before his injury he was in good health. There was no evidence of him suffering any impairment, especially with regard to his ability to perform a wide range of physically dextrous activity that would be expected of a young adult wanting to exercise his full potential earning capacity. The RPAH clinical notes recorded a history of the plaintiff having taken amphetamines for 10 years until about December 2004, and that he had used cocaine briefly earlier in 2005. The medical indications, if any, for these drugs was not stated or explored in the evidence. In the absence of questioning to explore these matters I draw no conclusions as the history was not acknowledged by the plaintiff : Mason v Demasi [2009] NSWCA 227; Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.

In 1989, on leaving school at the end of Year 9, the plaintiff commenced work to train as a fitter/machinist but did not obtain qualifications in that field. He then pursued labouring work for a while. He later obtained work assisting a plasterer in the mixing of plaster for building work. He then obtained work as a storeman for an air-conditioning company. That work involved him in carrying out clerical and stocktaking duties, as well as unloading trucks and storing stock. He then obtained work in an automotive radiator repair shop. This involved him testing, repairing and painting radiators, as well as picking up and delivering parts. He then became a delivery truck off-sider for an ice cream delivery franchise. That work involved unloading of frozen ice cream and restocking customer freezers. He then worked for a time as a truck driver for that ice cream company.

The plaintiff said he commenced work as a stage technician with an organisation called Lock'n Load International which was also known as Crew On Call. This work involved him in assisting in setting up staging, lighting, sound equipment, audiovisual equipment, loading and unloading trucks and touring. He described this work as being physically very demanding. The work involved corporate functions as well as jobs in the rock and roll entertainment industry. He claimed that in this employment, he was on call 24 hours a day, seven days per week and was called upon almost every day. He said that on average he worked six days a week, mostly at night. He said he continued in this work up until the time of his injury on 18 April 2005.

The plaintiff said he had also been working as a guitar technician. He said he also played some music as well. He said he worked as a drum and bass technician for bands as well as performing the staging work for events. He said he used to play the guitar himself. He said he had been involved in a band called Mortal Sin, and had toured with them twice in the two years before the hearing. He stated that, had he not been injured, this was the sort of work he had hoped to be doing in the music industry. He acknowledged that in that industry, he may or may not have made money as a musician, but said there were other types of work he could have carried out in that industry with sound, lighting and stage presentation.

At the time of his injury the plaintiff claimed he was earning $80 per hour for work that sometimes involved up to 3 hours of work at a time. He claimed that at other times he was working 18 hour days, including on one occasion, working in a studio recording a music album over a period of 8 days, during which time he claimed he had worked 12 hour days.

Review of evidence of plaintiff's post-injury situation

In the paragraphs that follow I set out my review of the treatment received by the plaintiff, the effects of his remaining disabilities, and his account of his post-injury attempts at work activities.

The ambulance report comprising Exhibit "O" recounted the history of the plaintiff's arm going through a panel of glass causing a full thickness laceration of 12 to 15 cms long exposing the tendons and muscles as well as a lesser laceration to the base of the thumb. The plaintiff was noted to be pale and shaking at the scene of the incident. This observation, together with the notation in the records of a suspicion that the plaintiff had lost a quantity of blood, and was suspected to have had an arterial bleed, leads to the inference that he was shocked following the injury. Apart from noting the plaintiff had been in contact with glass causing his laceration, the ambulance notes wee non-contributory to the analysis of liability issues.

Following his injury, the plaintiff was taken to Royal Prince Alfred Hospital ["RPAH"] where he underwent an operation to repair the lacerations to his right forearm. He recounted his understanding that the median nerve and a branch of the radial nerve in his right forearm were injured together with a tendon injury.

The medical records reveal that the damaged tendons comprised the flexor tendons on the volar surface of the right forearm. There was a complete laceration to the tendons and damage to the muscle bellies of the superficial and deep flexor tendons to the radial side of the forearm.

The nerve injuries comprised traumatic dissection damage to the right median nerve and the superficial branch of the right radial nerve. In addition there was a laceration to the right radial artery. The records noted that the plaintiff was estimated to have had a blood loss of about 300 mls.

The damaged arteries, nerves, muscles and artery were sutured and the right hand and forearm was then encased in a plaster splint and kept elevated until physiotherapy commenced about a week later. The plaintiff was an inpatient at RPAH for 5 days between 18 April and 23 April 2005.

During this time the records show that he was given a good deal of pain killing medication. On discharge from hospital he was given a collar and cuff sling together with required medications and was referred to the out-patient Hand Clinic for follow-up and further management, including occupational therapy and physiotherapy.

The recuperation and rehabilitation process involved the plaintiff in having his right arm in serial casts for nearly 12 months, during which time the casts were set and reset at differing angles. He was also receiving physiotherapy. The plaintiff has been left with a scar that runs from the inner aspect of his right wrist, below the thumb from just below the wrist area, across at an angle of approximately 45 degrees and down to his forearm, ending on the aspect of the right forearm. The volar aspect of the scar has been measured at 15 cms.

On discharge from RPAH, the plaintiff still had his arm in a cast. He was required to have the cast reset every two months by a physiotherapist. He received physiotherapy treatment every week as well as medication to assist him with the neurogenic pain that resulted from the injury.

He stated that it took him about 14 months before he could make a fist with his right hand. Even then, he could only apply force for gripping for only a matter of seconds and he would then have to let go because he experienced electric current type sensations and extreme pins and needles in his arm.

The plaintiff continued to have neuropathic pain that was described as persisting electric burning shooting pains. These pains continued unabated and the plaintiff was eventually referred to the Pain Management Clinic at RPAH for assessment, treatment and further management. He continues to be reviewed periodically by his general practitioner and by the pain clinic for prescription of opiate medications to manage his continuing pain syndrome.

The plaintiff stated that the resultant pain was significant, he required different kinds of medication for the pain over the course of his rehabilitation. This included Panadeine Forte, Neurontin and Oxycontin. That treatment has been under the supervision of the Pain Management Clinic at RPAH since September 2005.

In the months following his injury, the plaintiff found that he could not grip, write or lift anything with his right hand. He said it felt useless and he could not give a handshake with the hand. He found he could only just hold a fork in his right hand. He said he cannot write legibly with his right hand. He has lost dexterity and stamina in the functional use of the hand and fine movements of that hand are affected. He stated that he has very little sense of touch in the hand. He said that it felt numb to the touch using his thumb and the first and second fingers, and only very little strength had returned to the hand after physiotherapy treatment. It is of some significance that his right hand was his dominant hand because he stated that at the time of the trial, he had not yet learnt to use his left hand to write.

The plaintiff explained that if he knocked his arm this would cause him pain. He stated that he did not sleep well at all. He explained that this was because he woke frequently with the sensation of pins and needles in his wrist and in his hand. He stated that he has dreams about the circumstances of his injury in which he experiences the sound of breaking glass and a lot of blood. He states that these dreams cause him to wake.

The plaintiff stated that he had difficulty in cutting up food with his right hand and required his girlfriend to cut up meat for him at mealtimes. He stated that by the end of 2007, he had less trouble with cooking and by then had managed to use his left hand for a lot of things he would otherwise have done with his right hand. He said that he had learnt "to live with it differently".

The plaintiff stated that he is unable to lift more than a kilo in his right hand. He stated that he experienced pain and reduced strength in his right-hand. He stated that he experienced a great difficulty manipulating objects such as screwing things in place using his right hand. On lifting objects, he experiences a tearing sensation in his wrist at the inner aspect of his right forearm. He experiences numbness in his fingertips all the time. He stated that there is pain in his right hand all the time, although he conceded that it did fluctuate in its intensity. Activities such as overuse, for example playing the guitar or even cooking dinner tends to make the pain fluctuate. He has difficulty making beds and fitting sheets because of what he described as being in a great deal of pain when involved in these activities.

The plaintiff stated that he has not done much driving since because his right hand does not have the stamina, even for driving an automatic car. At present he does not hold a driver's licence. He said that his right hand gets extremely tired quite quickly. He stated that his right hand is very sensitive to hot and cold temperatures. He stated that the slightest sensation of heat feels like it is burning his skin. He also experiences a sensation of what he described as a cold burn when he touches cold items. The plaintiff said that 3 to 4 times a week his pain is such that it interferes with his concentration in an extreme way. Sometimes this experience of pain lasts the whole night.

He stated that he has been getting the assistance of his girlfriend to carry out some domestic tasks for him. He stated that when he attempts to cook meals he uses both hands but his right hand starts to shake if he attempts to pick up the fry pan in that hand. He does not iron because this causes him problems. He stated that his girlfriend massages his hand for between 45 minutes to an hour every night to alleviate the symptoms. He stated that shopping is carried out in small amounts to avoid problems.

The plaintiff stated that since 2007, there had been no improvement in the condition of his right hand. He explained that he had changed from being a very happy person to be a depressed person, who was not enjoying anything. I infer from the context in which that evidence was given, that these problems were due to his experience of pain and discomfort in the affected areas of his right hand.

The plaintiff stated that he attempted to return to light duty work in January 2007 on the occasion of the Big Day Out, an entertainment function held at Homebush. On that occasion he was allocated to set up some small lights at the back of the main stage. This involved him placing some lighting in the roof of the location where the function was being held. This entailed him being elevated on the front of the forklift with a bar and lighting attached, to mount the bar and lighting on the ceiling and to connect the power. He stated that the apparatus in question weighed about 8 kgs and he was working at head height, using both hands to perform the work. He stated that after 40 minutes, he just could not continue working, and his employer sent him home with his arm shaking. The plaintiff explained that on this occasion, his hand was shaking uncontrollably and was very painful.

The plaintiff also stated that by the end of 2007 he attempted to carry out some staging and lighting work at the Four Seasons Hotel for a corporate function. He stated that he lasted for two hours in this attempt. This work involved removing staging from the back of a truck, carrying it through to the hotel and making sure that all pieces of it joined and locked together. He described an area about the same size as the court room and involved installing a timber floor. Each segment of the flooring weighed about 15 kgs and consisted of plywood. He said he found it difficult to grip the pieces from underneath with his right hand. He stated that he experienced a lot of pain in his attempts to do that work.

The plaintiff stated that on about 2 September 2008, he re-commenced work with Crew On Call. This was in the capacity of answering phones, filling out job sheets and liaising with clients. This was clerical work. The work entailed engaging him for an average of two or three times per week for between three and six hours per week. He stated that he "just" managed this work because after writing continuously he experienced cramps in his hand and forearm, with aching sensation after working for about half an hour of work. He said his employer had been accommodating of his problems as these people have known him for a long time.

The plaintiff stated that he felt unable to go back to the physical work he had been carrying out in the past.

The plaintiff stated that before this injury, he had plans for becoming a sound engineer which required a certificate issued by the Australian Institute of Music. This qualification is obtained after completing three semesters of coursework. The work the plaintiff had in mind basically involved operating a sound recording desk and managing sound levels on a console in a studio. He stated that his right hand did not have the strength and stamina for prolonged periods of work at a sound desk and this was because of shooting pains through his wrist. He stated that this work required both hands to be operating the controls at the same time. He stated that his maximum post-injury capacity for working on a sound-mixing desk was about an hour and a half. He stated that people were paid between $75 to $125 for work as a sub-contract sound engineer. He stated that he could no longer work the extended hours that sound engineers are required to work. He said that he could cope with working with the band over the course of a few hours, probably no more than 3 to 4 hours at a time.

In the paragraphs that follow I set out a summary of the medical reports I have reviewed. These reports comprise hospital treatment records, reports from treating doctors and reports obtained by the respective solicitors from medico-legal experts.

The array of treatment reports comprised the RPAH clinical notes, reports from the RPAH Pain Management Clinic, and general practitioner reports from Dr Keir and Dr Tam.

The discharge summary from RPAH documented the plaintiff's inpatient treatment at the hospital between 18 and 23 April 2005. The summary refers to an operation performed on the plaintiff being a repair to 5 named tendons, and repairs to the median nerve and the first branch of the radial nerve and the radial artery having been performed on 18 April 2005. This is confirmed in the report from the operating suite. Post-operatively, the plaintiff's right arm was kept elevated and in a plaster. Following the plaintiff's 5-day stay in hospital he was discharged for follow-up in the hospital's hand clinic. Physiotherapy was also prescribed. The legal formalities for hospital admission were signed by Despina Desi Karakitsos. On the admission form she was described as the plaintiff's "live in partner".

The inpatient medication chart shows that the plaintiff was given serial doses of pain killing and anti-nausea medications. These included morphine, Endone, Stemetil and Tropistron, in addition to other medications.

The inpatient and outpatient notes make consistent reference to the plaintiff having neuropathic pain and numbness. The annotation on 19 April 2005 stated that numbness was to be expected following nerve dissection.

The plaintiff tendered 3 reports from the RPAH Pain Management Centre. These reports were respectively dated 8 December 2005, 20 December 2005 and 13 March 2006. They were signed by Dr Sawyer, Dr Ditton and Dr Wand. All of these reports were addressed to the plaintiff's general practitioners and were concerned with the management of the plaintiff's post-injury pain problems and with significant doses of prescription opioid medications. Dr Wand recommended the plaintiff continue with paracetamol and Oxycontin tablets and continue with massage and heat treatment as non-medication components of a treatment programme.

Dr Jeanette Keir, a general practitioner saw the plaintiff for the first time on 12 December 2005 for analgesics. She provided a brief report dated 12 January 2007. She offered the opinion that the plaintiff was unable to perform work duties that involved heavy lifting, pushing heavy loads, lifting, unloading tour trucks and working in confined spaces. She was not in a position to express a concluded view because of the limited nature of her involvement in the plaintiff's treatment at a relatively early stage.

Dr Michael Tam, a general practitioner has been involved in management of the plaintiff's care since December 2005, particularly in overseeing the plaintiff's use of prescription opioid medication. Dr Tan offered the view that he considered it unlikely that the plaintiff would be able to perform any role that required heavy lifting. He noted the history of the plaintiff's right upper limb tiring quickly indicating restriction on lighter but repetitive tasks.

The plaintiff's solicitor obtained medico-legal reports from Dr Bodel, Dr Clark, Mr Gilfillan, Ms Myburgh and Ms Davidson.

On 29 January 2007, at the request of his solicitor, the plaintiff was examined by Dr James Bodel, a consultant orthopaedic surgeon. Dr Bodel reviewed the unspecified documentation that was provided to him for the purpose of his report. Dr Bodel noted the main complaint was pain on the radial side of the forearm, with associated altered sensation, some numbness and uncomfortable tingling. He noted that pressure aggravated the pain. He noted generalised weakness on the radial side of the wrist and hand, and stiffness in wrist extension.

Dr Bodel expressed the view the plaintiff has some difficulty with household maintenance and cleaning activities requiring strenuous repetitive tasks with the right upper limb. He expressed the view that the prognosis was guarded.

On the subject of work fitness, Dr Bodel considered that the plaintiff was not fit overall for his pre-injury work as an "audio technician" in that whilst he might be able to undertake the technical aspects of the work, this did not include loading and unloading of heavy equipment associated with that work. Dr Bodel considered that the plaintiff needed to be retrained in alternative employment as his ability to find work on the open labour market had been severely compromised by this significant injury.

Dr Bodel also considered that the plaintiff would have long-term difficulty with household maintenance and cleaning activities, food and meal preparation, cutting, driving, washing, ironing and cleaning, consistent with the ongoing effects of the injury to his right forearm, wrist and hand. He felt that an estimated 5 - 6 hours per week of domestic assistance for every household maintenance and cleaning activity would be needed as a direct a result of the effects of the injury.

On 15 April 2009, Dr Bodel re-examined the plaintiff at the request of his solicitors. Dr Bodel confirmed the previous history provided by the plaintiff and noted that there had been a slight improvement in the plaintiff's level of pain experienced since the last consultation however there was still a complaint of a tight feeling in the arm, or a feeling that the hand had been "squashed".

Dr Bodel noted some ongoing sensitivity between the areas of scarring on the wrist and at the base of the thumb. There was an ongoing loss of sensation in the fingers on the right hand. There was a persisting complaint of hypersensitivity of the right hand, particularly to hot and cold sensation, mainly on the radial side of the wrist in the lower part of the forearm. The problem is made worse in conditions of cold wind or humidity. There was continued difficulty with grip strength and loss of dexterity in the right-hand. Dr Bodel noted that the Oxycontin dose had decreased from 80 mg a day to 25 mg per day over the preceding few weeks.

On examination of the plaintiff's right arm Dr Bodel noted tethering of the scarring to the deep structures, particularly when the plaintiff was asked to make a fist. He noted altered sensation in the distribution of the median nerve on the right-hand side with distorted superficial tactile sensibility and abnormal sensations. He also noted motor weakness with heavy anti-gravity and resistance movements, this being in the distribution of the median nerve. There was no abnormality in the ulnar nerve distribution or in the superficial branch of the radial nerve. Persisting stiffness was noted in the region of the right wrist with limited degrees of collection, extension, radial and ulnar deviation.

Dr Bodel gave consideration to a vocational assessment and considered the plaintiff's desire to retrain as an audio and sound engineer. He thought that the plaintiff may have some difficulties with this because of intrusive levels of pain in the forearm and impairment of digital dexterity which was required for that activity.

Dr Bodel reiterated his opinion that the prognosis for the plaintiff's condition remained guarded and it was unlikely that there would be any significant alteration to his condition in the longer term. He noted the need for further contact with the pain clinic to modify and manage the pain medication regime.

Dr Bodel was cautious in expressing a view as to whether the plaintiff could manage the physical tasks required of an audio and sound engineer, noting possible difficulty lifting heavy audio equipment.

On 6 March 2007, at the request of his solicitors, the plaintiff was examined by Dr Thomas Clark, a consultant psychiatrist. Dr Clark took a history and noted that the plaintiff stated that after his injury he withdrew from former friendships and felt unable to engage with people in his "former world". He noted that the plaintiff had formed a new relationship six months after the injury and at the time of the examination that relationship had continued for 18 months.

The plaintiff provided Dr Clark with the history of irritability with people. He told Dr Clark that he no longer felt certain about his future and had a depressed, fatalistic view of his life. He told Dr Clark that whereas beforehand he was an active and optimistic person, he now felt angry, frustrated and tense. He complained of poor sleep, restlessness, and an impairment in the completion of tasks. He described the feeling of despair at times which left him irritable. He described a specific phobia in relation to glass doors.

Dr Clark expressed the opinion that the plaintiff had been through an acute post-traumatic stress disorder with severe anxiety which had now left him chronically anxious and depressed, a condition known as the dysthymic disorder. He set out his reasons for his opinion that the plaintiff had initially developed an acute stress disorder which became chronic as a depressive reaction, leading to dysthymic disorder, according to the criteria within DSM IV-TR which he cited his report.

Dr Clark thought that the plaintiff's prognosis was uncertain and that these conditions were most probably directly caused by the plaintiff's injuries.

Dr Clark suggested that the plaintiff should see a psychiatrist and noted the range of treatment regimes within the parameters of 9 months more, and in some chronic cases, more than 2 years. He expected the plaintiff to attend a psychiatrist every 2 - 3 weeks for that regime and suggested that medication for this would cost about $150 per month.

On the issue of fitness for work on the open labour market generally, Dr Clark noted that the plaintiff has become physically and emotionally impaired, and would need assistance and support to work through his trauma. Dr Clark noted that the plaintiff could not survive independently and was receiving home care from his partner.

On 14 April 2009, the plaintiff was re-examined by Dr Clark. On that occasion Dr Clark had the vocational assessment, the occupational therapy assessment, and the 29 January 2007 opinion of Dr Bodel available for his assistance.

At this updated consultation, the plaintiff told Dr Clark that he felt that his career in entertainment and ended and that this was very distressing to him. Dr Clark noted that the plaintiff had told him he had to refuse "huge offers", for example the Rolling Stones concert tours. He noted the plaintiff's realisation that he needed to look for a new career, noting it was impossible for him to carry out aspects of his former vocation.

Dr Clark noted ongoing complaints of irritable moods and continuing depression, with poor sleep, frequent waking. The plaintiff expressed concern to Dr Clark that he could no longer physically defend himself.

Dr Clark felt that the plaintiff still had many symptoms of a post-traumatic stress disorder with hypervigilance and hyperacusis, which causes him to avoid crowds. He complained of recurrent dreams and "flashbacks" of glass shattering, which caused him to experience a nauseous sick sensation. He noted that the plaintiff still required home assistance from his new partner.

Dr Clark reiterated his earlier view that the diagnosis and prognosis for the plaintiff's condition was unchanged, stable but uncertain. He was still of the view that the plaintiff was incapable of performing his former duties, either professionally or domestically.

Dr Clark reiterated his earlier treatment recommendation and noted the increased cost of medication at $200 per month.

The opinions of Dr Clark were not challenged or contradicted by opposing expert evidence, or at all.

Mr David Gilfillan and Ms Gill Myburgh - psychological, functional and vocational assessments

On 23 April 2007, the plaintiff underwent psychological, functional and vocational assessments by Mr David Gilfillan and Ms Gill Myburgh at the request of his solicitors. The report of that consultation was dated 6 June 2007.

It was noted that whilst the plaintiff assisted his partner with cooking and making the bed, he had difficulty shaving because he could not apply the required pressure with his right hand. Also described, were inability to carry shopping bags and therefore to do large amounts of shopping alone, difficulty hanging washing because of the weight of wet laundry, difficulty folding clothes due to lack of sensation in the right hand.

It was also noted that the plaintiff was cooperative with the performance of testing which showed that the plaintiff was subject to physical work limitations. These included that the plaintiff not work with heat or cold using the right hand, repetitive fine right hand movement, repetitive right wrist movement, forceful pushing with the right hand, frequent or constant reaching overhead or to outer range, lifting outside his capacity, and no climbing of ladders due to safety considerations.

The overall assessment concluded that as a result of his injuries, the plaintiff was permanently unable to return to his pre-injury work and would be unable to return to any other position in which he had previously been employed, as his occupational history related predominantly to heavy manual positions, for which he was no longer suited.

The basis for that assessment was the plaintiff's experience of ongoing weakness in the right forearm, wrist and hand, with consequent limited manual dexterity, loss of sensation, chronic neuropathic pain, muscle fatigue with repetitive movement of the right hand and arm.

As a consequence of these problems, the plaintiff was assessed as being unable to undertake tasks requiring repetitive fine hand and wrist movements, forceful pushing, overhead or out of range movement, lifting of significant weights, or ladder climbing. He was also assessed as being restricted to the ability to manually handle weights, particularly items that vary in temperature, either hot or cold, and was limited by his current opiate medication, in his capacity to drive or operate machinery.

The assessment revealed significant employment barriers. These comprised significant physical and functional restrictions relating to the right hand, high and increasing levels of depression and stress, chronic pain resulting in constant use of opiate medication, inability to perform work other than of a sedentary nature, lack of interest in such work if it involved clerical administrative duties, lack of relevant experience or transferable skills for sedentary work, lack of formal qualifications, lack of computer skills and his restricted capacity to use a keyboard.

The assessment concluded that the plaintiff is now limited to performing tasks of a light sedentary nature. It was concluded that given his interest in the entertainment industry, it was thought feasible that he could pursue the work required of an audio or lighting technician and sound engineer, subject to gaining the necessary qualifications for these roles. It was thought that the plaintiff was only qualified for light sedentary work and was precluded from working in all manual occupations.

Mr Gilfillan and Ms Myburgh strongly recommended that the plaintiff complete either a course in lighting control, audio and sound engineering, both of which would cost approximately $6000. These consultants thought that subject to the plaintiff being able to successfully undertake required courses of training, he could be suited for the work of a sound technician or a lighting technician, subject to restrictions in manual handling. In round figures, it was noted that these positions would command earnings of the order of $720 per week gross. In contrast, at a lesser level, these consultants noted that another suitable option would be that of a sales assistant in a music or CD store, which would command earnings of the order of $620 per week gross, in round figures, also subject to lifting and reaching restrictions.

These consultants also reviewed the range of gross weekly earnings the plaintiff could have been entitled to had he remained uninjured. Ignoring the classifications of a labourer, delivery driver or track offsider as the plaintiff had advanced beyond those positions before his injury, the consultants identified income could be commanded by a radiator repairer, namely $1050 per week gross, and the income of a production crew member, namely $1287 per week gross.

In my view these recommendations have to be viewed in the light of the medical evidence in order to assess their appropriateness to the plaintiff's situation from a medical perspective.

It was recommended that the plaintiff have some physiotherapy treatment in order to improve his general fitness and to strengthen his right hand. He identified the cost as being $65 per session but it was not indicated as to how many sessions would be required for this treatment. It was also suggested the plaintiff have a 12 month gym membership at a cost of approximately $700, and a multidisciplinary pain management program at a cost of $7500.

Ms Judith Davidson - consultant occupational therapist

On 23 January 2007, at the request of his solicitors, the plaintiff underwent an occupational therapy assessment by Ms Judith Davidson. A further assessment was carried out on 11 December 2007.

Ms Davidson noted that the plaintiff suffered from reduced manual dexterity and had difficulty tying his shoelaces and brushing his long hair when he had extreme pain. He noted that the plaintiff's partner carried out these activities for him. She also noted that the plaintiff had received considerable assistance from his mother with the post-injury activities of daily living and with domestic tasks as well as assistance with attending at therapies and the like.

Ms Davidson reviewed the plaintiff's needs for assistance with the activities of daily living including leisure tasks, gardening, home maintenance, transport and the like. Since the claim for the value of past domestic assistance has been agreed upon, it is not necessary to review the detail of past services provided, other than to note that this has occurred and is part of the continuum of the need for ongoing services and assistance.

Ms Davidson noted that the plaintiff still has significant ongoing limitation concerning manual dexterity and performing fine tasks, and requires ongoing intermittent assistance with such tasks. She has identified his ongoing needs assistance at approximately 4 hours per week.

The solicitor for the defendant obtained medico-legal reports from Dr Mitchell, Mr Brown, Ms Zeman and Dr Fry.

Dr Robin Mitchell & Mr David Brown - occupational physician & vocational assessment

On 27 March 2007, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Robin Mitchell, a consultant occupational health physician. That examination was in conjunction with an assessment by Mr David Brown, a consultant occupational psychologist. The joint report resulting from that examination was dated 10 April 2007.

Dr Mitchell concluded that the plaintiff was recovering from a relatively severe laceration to his right forearm. Dr Mitchell noted residual weakness and loss of function but thought that further recovery should take place over the next 6 - 12 months but he did acknowledge that the plaintiff may be left with some ongoing symptoms of weakness in the right hand. He did not think any future treatment other than medication would be required by the plaintiff.

The medical assessment of Dr Mitchell, concerning the plaintiff's fitness for work was based on the premise that the plaintiff had not yet reached a position of maximum improvement, a state he expected would arise within the ensuing 6 - 12 months.

In stating that the plaintiff was "not yet fit for arduous and dexterous right hand activities" the implication of Dr Mitchell's opinion was that the plaintiff may in the future achieve a state of fitness for such work. Dr Mitchell stated that the plaintiff would be able to carry out any of the medically appropriate light forms of work on a full-time basis. The positions he had in mind were warehouse store work, quality control process work, selected duties involving radiator repair work, administrative assistant and sales assistant.

Mr Brown saw his task in assessing the plaintiff as being to consider what jobs, if any, would be suitable for the plaintiff to perform. In undertaking his assessment Mr Brown stated that there were no psychological restrictions concerning the plaintiff's fitness for work, although he did acknowledge that the plaintiff's current symptoms included psychological frustration. He assessed the plaintiff as having no sign of depression despite the plaintiff being clearly frustrated at the slow progress of his healing. I infer from this description, and from Mr Brown's reference to the report of Dr Mitchell, that he has assumed that there was further scope for the plaintiff to achieve some further recovery of feeling from the injury he had incurred almost 2 years before this consultation.

Consistent with his view as to the plaintiff's psychological fitness for work, and in conformity with the categories of employment nominated by Dr Mitchell, Mr Brown identified in broad terms wage classifications similar to those identified by Mr Gilfillan and Ms Myburgh.

In summing up the plaintiff's situation, Mr Brown noted that the plaintiff was an enthusiastic young man who, like many in the entertainment industry, enjoyed the glamour associated with work in the industry. His assessment was that the plaintiff "has been brought back down to earth to some extent by this injury but is still improving physically". He made the point that the plaintiff should consider moving out of the "roadie" role irrespective of his injury because it was a poorly paid position which was physically demanding.

On 6 July 2007, at the request of the solicitor for the defendant, the plaintiff was assessed by a consultant occupational therapist, Ms Sanja Zeman. Her report of that assessment was dated 13 August 2007. The purpose of the assessment was to review the plaintiff's living arrangements and to assess his ability to independently undertake the activities of daily living as well as assessing his treatment requirements and make recommendations regarding his current functional abilities and limitations.

Ms Zeman accepted that it was reasonable for the plaintiff to see his general practitioner and specialist for ongoing review, including review of the plaintiff for medications. She accepted the need for occupational therapy reviews to facilitate retraining and employment with a view to mitigating economic loss. She recommended that the plaintiff receive an allowance for reasonable input of the assistance of others for care and domestic needs, especially with fine motor tasks, such as tying up shoe laces "etc" for about 58 hours per annum, comprising 7.7 hours for dressing assistance, 6 hours for meal preparation, 2.19 hours for laundry assistance and 2.19 hours for bedroom maintenance.

In making these allowances, Ms Zeman made no allowances for personal care grooming, mobility, feeding, kitchen maintenance, dishwashing, housekeeping, external yard and home maintenance, shopping and transport. These were matters that were the subject of comment and recommendation by other experts.

Dr Hunter Fry - consultant plastic and reconstructive hand surgeon

The defendant tendered 2 reports dated 4 April 2007 and 9 January 2008 from Dr Hunter Fry, a consultant plastic, reconstruction and hand surgeon who had examined the plaintiff at the request of the solicitor for the defendant. The first report of Dr Fry was based upon a consultation he had with the plaintiff on an unspecified date, the second report was prepared in answer to correspondence Dr Fry had received from the solicitor for the defendant.

In his first report, Dr Fry noted the plaintiff's complaints of numbness, pins and needles and some degree of pain within the distribution of the median nerve in the palm. He noted the plaintiff's history that such symptoms are made worse when the hand is used.

Dr Fry described a 3 mm wide depigmented 13 cm scar on the plaintiff's right forearm, a further depigmented transverse scar about 3 cms long and 3 - 4 cms in breadth above that scar, as well as a "J" shaped scar over the thenar eminence of the right hand. He also noted the thenar eminence lacks bulk compared to the left hand. Dr Fry also described patterns of numbness and altered neurological sensation in the right hand. Dr Fry also noted reduced strength and movement in the plaintiff's right thumb.

Dr Fry described the plaintiff as having achieved an exceptionally good result from the repairs to his injuries. In his view the plaintiff had reached the point of maximal medical improvement so that the effects of the plaintiff's injury could be regarded as stable and permanent. He expressed the prognosis as being guarded but with some hope for improvement.

Dr Fry stated that the plaintiff's persistent neuropathic pain was undoubtedly tied in with his major nerve injury, the prognosis for which was in his view, guarded. Dr Fry described the plaintiff's impairment from scarring as being significant, the larger scar being incompletely covered, even by a long sleeve, and being depigmented, irregular in contour and uneven in its spread.

In terms of hand function, Dr Fry described the plaintiff's grasp and manipulative function as being affected due to sensory loss. He rated the loss of industrial capacity as being severe for manual activities. He predicted that the plaintiff's return to any heavy or intensive hand use work would be unlikely to be successful.

In his second report, Dr Fry responded to a letter from the solicitor for the defendant dated 4 January 2008. That letter was not in evidence so it is not entirely clear as to what was asked of him by the solicitor for the defendant, other than to comment on the reports of Dr Mitchell and Mr Brown concerning vocational options. Dr Fry was cautious about responding to job descriptions in reports because those descriptions did not always give clear indications of how heavy or how repetitive a job could be. Accordingly, in his view, it was preferable to first apply certain principles in relation to the injuries and then try to apply them to any proposed or potentially suitable activity.

In taking this approach Dr Fry first reiterated that the plaintiff had reached his point of maximal medical improvement some two years after the injury. He stated that the prognosis from that point was for very gradual improvement over the next five or more years and any such improvement would not be likely to exceed 3 per cent in any given year, in theory allowing for some 10 years for a final view to be taken.

In the meantime, Dr Fry stated that the plaintiff was only able to manage a limited amount of manual activity with his dominant right hand.

Dr Fry stated that the overriding medical assessment principle to be applied is that the hand should be used, and not cease use, but use should only be to the level where it remains asymptomatic or minimally symptomatic. The limiting factor is pain and distress and excessive use could be harmful. The secondary principle identified by Dr Fry was that an individual with this type of injury cannot be automatically matched to a job description. Any return to work should be regarded as a trial to enable easing into a work role, with careful monitoring to ensure that he does not exceed his capacity. In this regard Dr Fry made the point that repetitive activity of the hand can be very different in an injured hand when compared to a normal hand. Persons with hand injuries are very easily rendered symptomatic by repetitious activity, which in a normal hand would be most unlikely to cause any symptoms or problems.

With the above comments in mind, Dr Fry addressed the four specific job categories he was asked to consider. Of the warehouse store position, he pointed out that the job description did not indicate what the person actually had to do with their hands. With regard to the quality control process work position, he pointed out that the job duties were not spelt out on the title. The selected duties involving radiator repairs did not spell out the manual activity required for the position. The positions of administrative assistant and sales assistant did not spell out precisely what the plaintiff would be required to do with his right dominant hand and to the extent that they did not define the required manual activity, he did not make any definitive comments, but suggested that a trial of such work would be a suitable course.

Dr Fry took the opportunity of clarifying an aspect of some reported descriptions of the plaintiff's injury as including an ulnar nerve injury. He drew attention to the content of the RPAH clinical notes which made no reference to an ulnar nerve injury. In his view, the results of clinical examination were not compatible with an assumption that there had been a cut to the ulnar nerve because the intrinsic muscles of the hand which are innervated by the ulnar nerve were found to be working well and there was no clawing or intrinsic muscle atrophy. He stated that if the ulnar nerve had been cut and the recovery had been the same as the median nerve recovery, he would have expected much more disability than was evident on examination. However, he stated that it must not be forgotten that the plaintiff has no tactile sensation of most of his hand, namely the working surface of the first, index, middle and partly the ring finger as well as the palm.

In the paragraphs that follow, as precursors to the assessment of damages, I set out my findings concerning the plaintiff's injuries, his resultant disabilities, the effects of his injuries on his employment prospects, his efforts of mitigation and his remaining probable life span.

The plaintiff sustained a lacerating injury to his dominant right hand, wrist and forearm, including, to the muscles, nerves and tendons of that forearm.

Specifically, the plaintiff suffered lacerations which involved traumatic dissection to the right median nerve, a branch of his right radial nerve, the radial artery and the flexor tendons of his right forearm. These comprised the flexor digitorum profundus, the flexor digitorum sublimis, the flexor carpi radialis, the brachio radialis and the flexor pollicis longus tendons.

The plaintiff also suffered lacerations to the muscle bellies of the deep flexor tendons on the radial side of his forearm.

Findings concerning plaintiff's ongoing disabilities

The injuries incurred by the plaintiff have had physical, functional, cosmetic and psychological sequelae. In the paragraphs that follow I set out my findings on these matters.

The physical effects of the plaintiff's injuries have been considerable. The lacerations were painful and have resulted in significant and persistent neuropathic pain for which he has to take supervised opiate medications for pain relief. The plaintiff has ongoing discomfort, loss of grip and strength, restriction of a range of movement and dexterity in his dominant right hand. The plaintiff underwent a prolonged and uncomfortable period of 12 months during which he had to endure serial plaster and cast changes and associated discomfort and inconvenience. He has been left with lasting physical deficits in the distribution of the median nerve of his right forearm, comprising numbness and altered sensation in the right hand, which Dr Fry has characterised as consisting of the absence of tactile sensation in most of the hand and the working surfaces of the right first, index, middle and partly ring finger as well as the palm of the hand. In addition, oppositional use of the thumb is impaired. He has impaired sensitivity for detecting heat and cold due to his nerve injury. The condition of the plaintiff's right hand is permanent and stable.

The functional effects of the plaintiff's injuries have been such that the plaintiff does not have normal and sustainable grasping and gripping power in his right hand. The manipulative and oppositional functioning of the hand is significantly impaired and even short periods of extended or repetitive use of the hand are liable to cause increased symptoms and could result in deleterious and harmful consequences, including distress. These circumstances have had, and will continue to have, an obvious and untoward effect on the manner in which the plaintiff approaches and negotiates the everyday tasks incorporated in the activities of daily living, including cutting his food, some aspects of self care, household and domestic tasks. He will require some assistance in these areas. The effects on the plaintiff's employment prospects and earning capacity have been profound and have required him to refocus his ambitions and his leisure pursuits. For example, he is no longer able to carry out physically arduous, repetitive or dextrous work involving his right arm and hand, and he can no longer play the guitar as he could normally do. Although the plaintiff has had a good surgical result from his injury, Dr Fry has nevertheless characterised it as a severe injury for manual activities.

The cosmetic effects of the plaintiff's injuries have been that the plaintiff is left with significant, permanent and obvious disfiguring scarring to his right forelimb. The main scar is of uneven contour and spread. It is depigmented in its appearance and it is incompletely concealed by the wearing of long sleeves. In my view, this is a significant cosmetic impairment.

The psychological effects of the plaintiff's injuries are that he remains chronically depressed and has a dysthymic disorder as has been identified by Dr Clark. He still has many symptoms of a post-traumatic stress disorder, including flashbacks to images of breaking glass, irritable moods, impaired sleep, frequent awakening and hypervigilance. Psychiatric treatment has been recommended to him for these matters.

Findings concerning effect of injuries on employment prospects

The plaintiff has undergone functional assessments by physiotherapists, psychologists and occupational therapists to identify any work restrictions and ongoing therapy needs. I will refer to those assessments where appropriate when analysing the relevant elements of the claim for damages.

The medical practitioners who have examined the plaintiff have expressed their opinions on the effect of the plaintiff's residual disabilities on his earning capacity.

On 29 January 2007 Dr Bodel expressed the opinion that the plaintiff had difficulty with cleaning activities that require strenuous and repetitive tasks with the right upper limb. At that time Dr Bodel was of the opinion that the plaintiff was probably not fit overall for his pre-injury work in that he would be unable to undertake the loading and unloading of heavy equipment associated with that work. He expressed the view that the plaintiff will need to be retrained in alternative duties but also noted that the plaintiff's ability to find work on the open labour market was severely compromised by this significant injury.

When Dr Bodel re-examined the plaintiff on 15 April 2009 at which time Dr Bodel had the benefit of the functional and vocational assessments. Dr Bodel foreshadowed some difficulties with the plaintiff undertaking the work of an audio and sound engineer because of intrusive pain levels and impairment of dexterity. His view was that whilst the plaintiff may have sufficient function in his right hand to undertake the work of an audio and sound engineer he would have difficulty lifting heavy audio equipment. He re-iterated his earlier expressed view that the plaintiff's capacity for employment remained reduced by virtue of the injury. The general prognosis at that time remained guarded.

When Dr Clark undertook a psychiatric assessment of the plaintiff on 6 March 2007 he addressed the question of the plaintiff's capacity t work and expressed the view that the plaintiff was at that time physically and emotionally impaired and had an uncertain future with regard to his fitness to work either in his pre-injury work or on the open labour market generally.

When Dr Clark re-examined the plaintiff on 14 April 2009 he had the benefit of Dr Bodel's first report dated 29 January 2007 and the reports of Mr Myburgh, Mr Gilfillan and Ms Davidson. Dr Clark addressed the question of the plaintiff's capacity for employment by stating that in his opinion the plaintiff was incapable of performing his former duties either professionally or domestically. That opinion has to be viewed in the context of Dr Clark's psychiatric diagnoses of the plaintiff's permanent impairments due to post-traumatic stress disorder and depression.

I find that the plaintiff's employment prospects have been significantly limited by his post-injury disabilities. I accept Dr Fry's characterisation of the nerve injury to the plaintiff's right hand as being severe when viewed in an industrial setting.

The plaintiff does not have the education or training that would readily enable him to develop his employment prospects for non-manual work. To the extent that it might be possible for him to develop skills for such work in the future, he will nevertheless still remain significantly hampered by restrictions on repeated movements, lifting and carrying, and performing other dextrous tasks with his right hand and arm. Associated with these problems, he has persistent chronic pain in his right hand as well as altered sensation. He is vulnerable to experiencing unpredictable and intrusive levels of pain that will interfere with concentration in the workplace. The more activity he undertakes with his right hand the more likely it is he will experience pain. He needs to take strong analgesia for pain, including opiate medication. He is chronically depressed and has a dysthymic mood disorder that is liable to be influenced by his experience of fluctuating pain.

On reviewing the foregoing matters, I find that the plaintiff's employment prospects have been significantly impaired and hampered by the effects of his injuries. He has gone from someone who was physically able to exercise an earning capacity for unrestricted work, to someone who has significant physical and psychological impairments that severely restrict his employment prospects both on the open labour market and on a more restricted labour market that would otherwise cater for employment of persons with a disability.

The plaintiff's productivity in the workplace will obviously be significantly limited by his experience of pain and the use of medication to manage that pain, in addition to the restrictions on him performing repetitive manual tasks. I find that these matters represent very substantial barriers to the plaintiff obtaining and maintaining suitable employment in the future. Evidence of this problem appears from the vocational and functional assessment reports, where skilled and experienced employment consultants, with good intentions, have nominated what they consider to be suitable alternative categories of future employment for the plaintiff, only to have doubts cast upon those selections due to the medical considerations outlined by Dr Fry. In my view this serves to confirm the significant difficulties the plaintiff will encounter in his prospects of seeking, obtaining and maintaining suitable employment in the future.

Since reaching his level of maximal medical improvement, the plaintiff has remained on social security benefits. A consistent theme in the medical assessment reports tendered in these proceedings are the medical opinions restricting the plaintiff's suitability for a wide variety of manual work. He is also limited in his ability to carry out sedentary work involving heavy or repeated use of his right hand and forearm. He is also liable to experience intrusive levels of pain for which he takes strong analgesic medication, including prescribed opiates. The more activity he performs with his right hand the more pain he is likely to experience. His need for opiate medication and strong analgesia contraindicates driving or operating dangerous machinery. He no longer drives a vehicle because of problems with his painful right hand and forearm.

The plaintiff has attempted to pursue alternative employment duties of a light nature, including clerical work. He found this difficult to carry out beyond short periods due to pain and restrictions in the use of his right hand. Keyboard work is problematic for him due to overuse and pain issues. He has experienced physical symptoms in his right upper limb, including shaking when he tried to resume work with Crew on Call. He has tried and found that he could not sustain some of the manually dextrous movements required in the sound recording industry and could not fully operate a keyboard console using both hands as is required. He has not found alternate employment. He has tried unsuccessfully to pursue a course of retraining. The vocational and functional capacity assessments, and the medical commentaries on the recommendations from assessments indicate the difficulties in placing the plaintiff in alternative employment. Although he still requires some further attempts at workplace rehabilitation, I find that the plaintiff has fulfilled his obligation to take reasonable steps to mitigate his loss. In my view there is no evidence to suggest that the plaintiff has unreasonably refused or declined to take steps to mitigate his loss.

It is necessary to identify the plaintiff's probable remaining life span for the purpose of assessing some aspects of his entitlement to future damages, in particular the claim for future domestic assistance and future treatment. At trial the plaintiff was aged 35 years. On the prospective life tables, a 35 year-old male has an average statistical survival estimate at 53.28 years. The medical evidence does not disclose any reason why the plaintiff's probable future life span should be assessed to be anything less than this average figure. Accordingly, I propose to use a probable survival assumption of 53 remaining years. The 5 per cent multiplier for projection of future losses over 53 years is 988.9. As the life tables already incorporate a discount for mortality, it is unnecessary to apply a vicissitudes discount to this figure on account of considerations of possible early mortality.

The plaintiff and the first defendant made submissions on damages. The second defendant took the course of adopting the first defendant's damages submissions. In the paragraphs that follow I set out my assessment of the heads of damage claimed by the plaintiff.

The plaintiff has submitted that his entitlement to damages for non-economic loss should be assessed at 40 per cent of a most extreme case under s 16 of the CL Act. The current rounded indexed value of that amount is $189,500. The defendants have submitted that the appropriate percentage assessment would be 28 per cent of a most extreme case, which, after applying the threshold discount required by s 16(3) of the Act, is the equivalent of 14 per cent of the maximum indexed amount of $473,500, namely $66,500.

The assessment of the plaintiff's claim for non-economic loss requires a consideration of the physical, functional, cosmetic and psychological sequelae of his injuries and the impact of these elements on the plaintiff's enjoyment of the amenity of his life. I have already summarised the detail of the evidence concerning these elements at paragraphs [370] to [374] of my reasons.

The impact of the plaintiff's injuries on his capacity to earn an income, his need for domestic assistance and a regime of treatment are matters requiring separate consideration. I only mention them in the context of the assessment of damages for non-economic loss to indicate that I have tempered my assessment of non-economic loss on account of the need to avoid the potential for overlapping of damages assessed on account of these additional considerations.

In my view, an acceptance of the non-economic loss submission of 28 per cent as advanced by the defendants would result in manifestly inadequate compensation to the plaintiff for the matters I have outlined above, and which are required to be considered in respect of an assessment for this head of damage, involving pain, suffering and loss of amenity of life. I therefore reject the non-economic loss submission put forward by the defendants.

Having considered the matters that I have outlined in the preceding paragraphs, recognising that minds may differ as to what may constitute a sound discretionary assessment of damages for non-economic loss in the circumstances of this case, I consider that the appropriate range for assessment is between 38 per cent and 42 percent of a most extreme case, according to s 16 of the CL Act. In these circumstances, I consider the plaintiff's submission of 40 per cent of a most extreme case to be reasonable, and within that range. I accept it as being appropriate to the plaintiff's circumstances, which I have summarised in the preceding paragraphs.

I therefore assess the plaintiff's damages for non-economic loss as being the equivalent of 40 per cent of a most extreme case according to the considerations required by s 16 of the CL Act. I therefore assess damages for non-economic loss in the sum of $189,500.

The plaintiff claims damages for past loss of earning capacity submitted at the rate of $330 per week net over a period of 212 weeks between 18 April 2005 and 18 May 2009, in the sum of $69,960.

The argued basis of the plaintiff's claim for past loss of earning capacity was that uninjured, he had a capacity to earn a minimum of $20 per hour for a 40 hour week, amounting to $800 per week gross or $663 per week net. Whilst there was no evidence of the rate of $20 per hour being available, it seemed otherwise reasonable when compared with average weekly earnings rates.

It was conceded that an offset for mitigatory earnings ought to be applied in favour of the defendant for income the plaintiff had derived since September 2008 with Crew on Call. The approach to assessment taken by the plaintiff was to assume that a sum of the order of $330 per week net would represent a fair rate for calculation. That submission was said to have already taken into account the mitigatory earnings which were not identified with precision, either in the plaintiff's evidence or in submissions concerning this head of damage. The result of those submissions is that the plaintiff claims $330 per week net over 212 weeks, in the amount of $69,960.

On behalf of the defendants, Mr Chen submitted that the plaintiff's claim for past economic loss should be assessed at $150 per week over 213 weeks in the amount of $31,950. Adjusting that submission to refer to 212 weeks of the period 18 April 2005 to 18 May 2009, the adjusted submission is $31,800.

In elaboration of the past economic loss submissions advanced on behalf the defendants, Mr Chen submitted that the question to be determined is whether the plaintiff's injuries, which I have found to have impaired his otherwise uninjured capacity to earn income, were productive of an actual financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.

In my view, injuries sustained by the plaintiff, when viewed from the correct perspective, namely, where the plaintiff's pre-injury work activities were predominantly of a physical nature requiring him to have physical strength and manual dexterity, were productive of a loss of earning capacity that should be regarded as being a financial loss to him. This is so because as a result of his injuries, the plaintiff was unable to resume the full range of pre-injury duties that he was previously able to perform. The real question is how this loss should be calculated.

In his submissions on behalf of the defendants, Mr Chen conceded that from a medical perspective, there is no doubt that the injury to the plaintiff's right hand and arm precluded him from undertaking varying aspects of heavy repetitive work, as described in the medical reports. The medical experts gave varying opinions on this issue, but the theme was constant. In this context, it is instructive to review those medical opinions in this context.

It is plain from the medical evidence that the plaintiff had not reached his point of maximum medical improvement until about two years after his injury. As at 12 January 2007, Dr Keir was of the opinion that the plaintiff was unable to perform heavy lifting, pushing, loading, unloading and confined space duties. On 29 January 2007, Dr Bodel was of a similar view and suggested that the plaintiff needed to be retrained and that his ability to find work on the open labour market had been significantly compromised. On 4 April 2007, Dr Fry rated the impairment of the plaintiff's industrial capacity as severe for manual activities. He was pessimistic of any return to work involving intensive hand use. On 14 April 2009, Dr Clark reiterated his earlier expressed view that the plaintiff was incapable of performing his former duties. On 15 April 2009, Dr Bodel reiterated his earlier view and was cautious about the physical tasks the plaintiff could perform, including the less arduous tasks of a sound engineer, including possible problems due to intrusive levels of pain, quite apart from questions of manual dexterity.

Nowhere within the medical evidence was there a suggestion of an emergent capacity for alternative employment. In fact it was clear that the plaintiff needed to undergo vocational retraining having regard to his limited skills and abilities.

Mr Chen pointed to what he submitted was a poor work history on the part of the plaintiff. He pointed to the plaintiff's historical earnings hovering "around $300 per week or so" and argued that fully engaged, this was the measure of the plaintiff's pre-injury earning capacity.

The plaintiff's credit was challenged as to his account of his pre-injury patterns of work. He stated that he worked regularly and consistently, being on call 24 hours per day, six days per week mostly at nights, but less in the non-summer months. He also stated that 99 per cent of his Crew on Call earnings went into his bank account. Mr Chen submitted that when the plaintiff was confronted with the financial material in evidence indicating the pattern and the extent of his receipt of Centrelink benefits, and which did not confirm his stated earnings to the extent that he had sought to intimate in his evidence, the plaintiff disingenuously sought to explain the obvious discrepancy by claiming he had been foregoing work for babysitting of the daughter of Mrs Karakitsos.

In order to consider the plaintiff's claim for past loss of earning capacity, it is necessary to review his income tax returns and notices of assessment for the tax years ended 30 June 2002 to 30 June 2005 in order to ascertain whether there is a reliable pattern of earnings in order to identify an appropriate rate upon which to base an assessment of his claim. Those income tax returns and notices of assessment were tendered as : Exhibit "K". The tabulation set out in Table I below sets out the plaintiff's income in the 2002-2005 tax years as extracted from this exhibit. Table I

Income Tax Year Exhibit K Taxable Gross Income Tax Assessed Net Income Average Net Weekly Income Pages

1. 30.06.2002 1 - 19 $7,609 $1,501 $6,108 $117.46
2. 30.06.2003 20 - 39 $14,862 $1,885 $12,977 $249.55
3. 30.06.2004 40 - 62 $17,310 $1,922 $15,388 $295.92
4. 30.06.2005 63 - 86 $6,851 $144 $6,707 $128.98

It appears from the average earnings set out in Table I that there was a steady increase in the plaintiff's income in the 2000-2004 tax years. The plaintiff's average weekly income in the year ended 30 June 2004, is revealed to be $295.92 per week net. In contrast, in the 2005 tax year, the plaintiff's income is revealed to have been an average of $128.95 per week.

That analysis does not appear to be a true measure of the average because the plaintiff did not work in the 10.5 weeks between 18 April 2005 and 30 June 2005. Taking this factor into account, the plaintiff's average net weekly income over the 41.5 weeks between 1 July 2004 and 18 April 2005 appears to be the adjusted amount of $161.61 per week net.

The first defendant tendered the plaintiff's bank statements : Exhibit "D1.6". An examination of the plaintiff's bank statements reveals a different picture of the plaintiff's pre-injury earnings situation which in my view demonstrates that the credibility of the plaintiff's claim for loss of earning capacity has been significantly undermined. In order to understand that view, it is necessary to look at the financial detail that is revealed in the bank statements.

The plaintiff's bank and credit card statements for the period 1 April 2003 to 30 June 2005 show infrequent deposits of wages as well as frequent deposits of Centrelink payments. Table II sets out the payments received by the plaintiff from Centrelink between 2003 and 2005. It is clear from that analysis that in the financial year of his injury, in 2005, the plaintiff was in receipt of Centrelink benefits of $7135.14. All but $409.85 of those payments related to the pre-injury period.

Tax Year Date Amount received from Centrelink 2003 09.03.2003 $405.80 23.04.2003 $404.97 07.05.2003 $403.73 21.05.2003 $403.73 05.06.2003 $403.73 18.06.2003 $403.73 Total for year $2425.69 2004 02.07.2003 $346.05 27.02.2004 $365.75 12.03.2004 $365.75 26.03.2004 $338.10 08.04.2004 $368.82 10.05.2004 $340.00 21.05.2004 $280.00 04.06.2004 $459.28 18.06.2004 $368.62 Total for year $3232.37 2005 02.07.2004 $368.62 16.07.2004 $368.62 30.07.2004 $368.62 13.08.2004 $368.62 27.08.2004 $368.62 10.09.2004 $368.62 27.09.2004 $343.29 08.10.2004 $346.51 22.10.2004 $369.26 05.11.2004 $355.98 19.11.2004 $331.37 25.11.2004 $13.67 03.12.2004 $395.99 17.12.2004 $386.77 30.12.2004 $331.46 14.01.2005 $331.46 28.01.2005 $331.46 11.02.2005 $331.46 25.02.2005 $331.46 11.03.2005 $313.43 04.05.2005 $409.85 Total for year $7135.14

A similar analysis of the plaintiff's bank statements as set out in Table III reveals his deposits of income between 2003 and 2005. That analysis reveals that in the period 1 July 2004 to 17 April 2005, a period of 41.57 weeks, the plaintiff's total deposited earnings amounted to $4661.50 or an average of $112.13 per week.

Tax Year Date Amount Employer 2003 21.05.2003 $313.00 Bradflo Pty Ltd 28.05.2003 $522.00 " 04.06.2003 $775.00 " 11.06.2003 $354.00 " Total for year $1964.00 2004 23.07.2003 $437.90 Carl Ray Sales Pty Ltd 30.07.2003 $338.75 " 06.08.2003 $415.10 " 13.08.2003 $396.00 " 20.08.2003 $448.00 " 27.08.2003 $276.15 " 03.09.2003 $199.75 " 10.09.2003 $492.60 " 17.09.2003 $413.00 " 24.09.2003 $425.15 Carl Ray Stainless 01.10.2003 $414.55 " 23.12.2003 $175.00 Show Call Crewing 30.01.2004 $351.00 Lock & Load Int 12.02.2004 $46.50 " 19.02.2004 $150.00 Show Call Crewing 08.03.2004 $150.00 " 17.03.2004 $239.00 Bradflo Pty Ltd 24.03.2004 $670.00 " 31.03.2004 $239.00 " 03.05.2004 $200.00 3D Productions 05.05.2004 $353.00 Carl Ray Sales Pty Ltd Total for year $6830.45 2005 16.09.2004 $463.00 3D Productions 24.09.2004 $179.75 Lock & Load Int 08.10.2004 $289.10 " 18.10.2004 $153.75 " 27.10.2004 $176.00 3D Productions 19.11.2004 $396.25 " 23.11.2004 $83.25 " 26.11.2004 $129.25 " 03.12.2004 $181.80 " 10.12.2004 $147.00 " 23.12.2004 $113.20 " 30.12.2004 $47.20 " 06.01.2005 $145.55 " 21.01.2005 $232.75 " 28.01.2005 $88.00 " 17.02.2005 $105.40 " 04.03.2005 $291.25 " 11.03.2005 $318.90 " 17.03.2005 $283.10 " 24.03.2005 $355.50 " 30.03.2005 $167.20 " 15.04.2005 $113.20 " 22.04.2005 $201.10 " (W/E 17.04.05) - " Total for year $4661.50

In my view, these tabulations demonstrate a factual inaccuracy in the plaintiff's oral evidence concerning his pre-injury earning capacity and his pre-injury level of earnings. I consider this circumstance to indicate that the oral evidence of the plaintiff concerning his pre-injury level and pattern of earnings was unreliable and should not be accepted. I accepted this to be so even though his tax returns declare an income that was greater than that shown in his banking records.

Whilst it is clear that before his injury, the plaintiff had no injuries or disabilities that impaired his earning capacity, and in theory he had an unrestricted earning capacity, for whatever reason, the plaintiff was either not exercising his earning capacity to the full, or if he was, as he claimed, noting that there was no evidence for this other than his own oral evidence, the earnings that he claimed to have derived were not reflected in his income tax returns or in his banking statements. In considering those matters, I do not need to find a reason for him not fully exercising his earning capacity. It was not put to the plaintiff that he had undeclared income and therefore, it is not open for me to speculate as to whether he had additional earnings beyond those disclosed and which were not declared for income tax purposes.

Instead, I consider a more appropriate and sound approach would be to have regard to the plaintiff's income tax returns, his notices of assessment and his banking records as the appropriate basis for assessing the extent to which he was exercising his earning capacity at the time of the incident, and by logical extension, for at least a year or so after the incident, assuming he had not been injured.

In order to make a proper assessment of this component of the plaintiff's claim, I consider that four matters need to be assumed. The first such matter is the weekly rate to be employed for the initial part of the calculation of loss of earning capacity in the early period following the injury. The second such matter is to consider what if any degree of increment should be applied to the rate applicable for the first period, recognizing that over the 212 weeks since his injury, the rate was unlikely to have been constant, for reasons of CPI increments, if nothing else. The third such matter involves striking a fair average between the rates applicable to the early period following the injury and the time of the trial in order to make a proper calculation for the entire period. The fourth such matter is the identification of the plaintiff's net mitigatory earnings since September 2008, as these earnings need to be offset from the plaintiff's calculated claim for loss of earning capacity.

The evidence as to the plaintiff's earnings and his potential earnings is in an imprecise state. In these circumstances it is necessary to identify what I consider would probably have been the plaintiff's likely circumstances, had he not been injured. This process is also necessarily imprecise, but is nevertheless required as some fair and rational approach to assessment is necessary notwithstanding a paucity of evidence on these issues: State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, per Heydon JA at [66] - [87]; pp 552-559. This undertaking is also required in order to fulfil the requirements of section 13(1) of the CL Act in order to form the basis of assessment of the claim for future loss of earning capacity.

In respect of the first assumption, having regard to the documentary evidence of the plaintiff's pre-incident level of earnings, I consider that for the first year following his injury, the plaintiff would most probably have earned an average of $150 per week net. I base this finding on his pre-injury pattern of earnings, his lifestyle and his domestic circumstances.

In respect of the second assumption, I consider that it would be unrealistic to assume that over some four years following the injury, with progressive increases in the cost of living, that there would be no commensurate increases in the plaintiff's earnings. In the absence of precise evidence, I propose to take a broad approach to this question and apply an annual 3 per cent increase to the pre-injury level of the plaintiff's earnings.

In respect of the third assumption, the effect of this approach is that in the first year, the rate of earnings for assessment is $150 per week net, in the second year it is $154.50 per week net, in the third year it is $159.13 per week net, and in the fourth year it is $163.90 per week net. The average over the four years is $156.88 per week net. The result of this process is that in the period 18 April 2005 and 18 May 2009, I find the plaintiff would have earned the amount of $33,258 net. I find that this is the measure of his past loss of earning capacity, subject to any offset to be applied in respect of mitigating earnings.

In respect of the fourth assumption, the evidence concerning the level of the plaintiff's mitigatory earnings has been left unclear. Nevertheless, having regard to the medical evidence as to the limited capacity for the plaintiff to carry out work in his impaired state, although it involves a degree of speculation, I infer from the medical evidence as to his abilities, that he carried out such mitigatory work to only a limited degree of no more than two hours per day, for two days per week, at the rate of $20 per hour, which was the rate suggested by Mr Chen, over the 32.85 weeks between 1 October 2008 and 18 May 2009, in the total sum of $2,628, which is below the tax threshold.

As a result of this process of evaluation, I find that but for the incident, the plaintiff would probably have earned an amount of $33,258 net and following his injury he has derived mitigatory earnings of $2628 net. After applying an offset for these mitigatory earnings, the net result is a loss of $30,630. I therefore assess the plaintiff's claim for past loss of earning capacity in the net amount of $30,630.

The plaintiff makes a claim for future loss of earning capacity. The parties made disparate submissions concerning this claimed head of damage.

On behalf of the defendants, Mr Chen submitted that the plaintiff's entitlement to damages for future loss of earning capacity should be limited to a buffer assessed in the amount of $20,000. Other than seeking a finding that the plaintiff's evidence concerning his future economic prospects should be rejected, the basis of the submitted assessment was not entirely clear.

On behalf of the plaintiff, Mr Dooley SC submitted that the plaintiff's claim for future impairment of earning capacity should be assessed at the rate of $350 per week net over the remaining 30 years of working life to age 65, projected on the 5 per cent tables (x 822) and discounted by 15 per cent for vicissitudes. The resultant calculation is $244,545.

The basis of any assessment of the plaintiff's damages for future impairment of earning capacity must proceed according to the requirements of s 13 of the CL Act. This requires that the court must be satisfied that the assumptions upon which the claim for future loss of earning capacity and related events accord with the plaintiff's most likely future circumstances, but for the injury : s 13(1). Insofar as an award for future impairment of earning capacity depends upon the occurrence of future events, but for the injury, the award must be adjusted to reflect the present possibility of the occurrence of such events: s 13(2). The assumptions for any such award must be stated: s 13(3).

In this regard, I consider that the plaintiff's claim for future loss of earning capacity should be viewed as arising in three stages, which I outline and analyse in the paragraphs that follow. This is because at the age of 35 years, it is unlikely that the plaintiff's future earnings situation would remain static and in the position he was in at the hearing.

With regard to the first stage of assessment, in my view the starting point for a consideration of the plaintiff's claim for future loss of earning capacity is to identify what was most likely to have occurred but for his injury.

In my view, this involves recognition of the reality that some years had passed before his injury without the plaintiff having earned significant income. I consider that these circumstances render it highly probable that such circumstances would more likely than not have prevailed for a least another two years from the time of the incident, had the plaintiff not been injured.

On this approach, I consider that it is reasonable to allow the plaintiff $163.09 per week net, being the probable earnings I consider he would have been deriving at the time of the trial, projected over 2 years on the 5 per cent tables (x 99.4) with a minimal discount of 5 per cent for possible adverse vicissitudes. I consider the discount for vicissitudes in respect of this period to be minimal because the period is relatively short. This yields a projected loss of $15,665 in respect of the first stage of the assessment.

The second stage of the process requires a consideration of what would have been the plaintiff's most likely future circumstances beyond those 2 initial post-trial years, had he remained uninjured.

In considering the plaintiff's most likely future circumstances, it is clear from that part of the evidence of Mrs Karakitsos that I am prepared to accept, that the plaintiff was not earning much money, it appears he was not paying his way in the domestic setting, and that Mrs Karakitsos had issues with him about money matters, such that it was highly likely that these circumstances were placing a strain on any continuation of their relationship.

In the light of these circumstances, I consider that it was almost certain that even if the plaintiff had not been injured, by the time 2 years had passed after the trial, namely by about April 2011, the plaintiff would have found himself having to live either elsewhere, or if not elsewhere, then at the premises but by himself, and he would have then realised that he needed to find a more realistic, stable, regularly paying job which would have provided him with sufficient funds to support himself, rather than to continue to indulge himself in the unrealistic expectation that the pursuit of work as a "roadie", working in and around the rock music industry, or something similar, was going to provide him with adequate means of support.

Whilst there is evidence within the expert reports that indicates that a production crew member could derive earnings in the range $598 per week gross to $1287 per week gross, consistent with my findings as to the plaintiff's credit on matters of earning capacity, I do not accept the plaintiff's evidence either as to his own assessment of his earning capacity in the entertainment industry, or as to the availability of work for him in that industry. I consider his evidence on these matters to have demonstrated unrealistic expectations on his part.

I consider that by about April 2011, it would have been almost certain that the plaintiff would have been forced into a situation of finding himself competing for work on the open labour market. In those circumstances, uninjured, he would have been a relatively unskilled person, who without further training, would have most probably been suited only to semi-skilled or labouring work.

These likely circumstances of the plaintiff give rise to a difficulty in identifying an appropriate basis upon which to make an assessment of the claim for future loss of earning capacity over the ensuing 28 years from 2011 until the plaintiff reached the retirement age of 65 years.

In the absence of specific evidence of a likely earning capacity in the plaintiff, valued in monetary terms, that is, other than in the music or entertainment industry, which I consider was unrealistic for him, I consider that the only rational approach to the undertaking in these circumstances, other than a completely arbitrary approach, is to have regard to published data concerning average weekly full-time male earnings for total employees in Australia. This reveals an amount of $1344.40 per week gross, which, after making allowances for applicable rates of tax and the Medicare levy, is the equivalent of $1039.18 per week net.

Having due regard to the plaintiff's relative lack of work skills and experience, and having regard to the absence in the plaintiff's circumstances of a steady work history, I consider that the use of undiscounted average weekly earnings as outlined above would not represent an appropriate or fair yardstick by which to measure his probable earning capacity, uninjured. I consider that a discount is required to reflect these factors. However, balanced against the need for a discount is the recognition that the plaintiff impresses as a reasonably intelligent person who would probably adapt to his circumstances if he applied himself. I consider it would be unreasonable to assume that the plaintiff would have always remained unsuccessful in earning significant income over the entire remainder of his working life without some economic benefits accruing to him from maturing over a number of years.

Having considered the foregoing factors, I find the appropriate adjustment to the identified average weekly earnings that is required by s 13(2) of the CL Act to reflect the plaintiff's most likely circumstances but for his injury, is 25 per cent. By this pathway of reasoning I find that but for his injury, in the remaining 28 years of his working life to age 65 years, the plaintiff would, on the balance of probabilities, have earned an average weekly income in a rounded up figure of the order of $780 per week net, this being about 75 per cent of the category of average weekly earnings that I have identified.

The third stage of the analysis requires a consideration of whether the plaintiff in fact retains a significant or measurable residual earning capacity even in his injured state, and if so, to what extent should that residual capacity be measured and applied as an offset against the potential earnings he would probably have derived, but for his injury.

I have considered the nominated categories of alternative or residual employment as suggested by the experts retained on behalf of the defendant. I have also had regard to the opinions of Dr Fry casting doubt on the applicability of such categories of employment to the plaintiff in the absence of more specific evidence as to the nature and extent of the duties required, including the duration and need for repetition of hand movements required by the identified alternative job descriptions. In view of the commentary of caution from Dr Fry, I reject the categories nominated by those experts, and which Dr Fry has critically reviewed in his report. Those categories have not shown to be suitable for the plaintiff, either in the short or long-term, having regard to the plaintiff's level of incapacity for manual work and the intrusive levels of pain the is likely to experience with repeated attempts of manual work, including the effect of such pain on his concentration and motivation to continue. Since repeated manual activity is ill-advised for the plaintiff, and is likely to be painful and damaging to the plaintiff, any form of proposed residual work involving manual effort needs to accommodate these difficulties.

These circumstances make it difficult to form an assessment of any residual earning capacity retained by the plaintiff. In such circumstances, I consider that I can comfortably accept the concession made by Mr Dooley SC in his written submissions, namely in the ratio of $350 : $800 in respect of the mitigatory earnings which he has suggested as I consider that submission is a conservative one from the perspective of he plaintiff's interests. In rounded figures, that ratio is 55 per cent. Applying that approach to the plaintiff's assessed uninjured probable earning capacity of $780 per week net, after allowing a residual earning capacity of 55 per cent, this reveals a loss of earning capacity of $351 per week net.

Given the severe nature of the plaintiff's nerve injury, the persistent ongoing nature of the neuropathic pain, which requires opiate medication, and also recognising the fact that it is the plaintiff's dominant right hand and arm that is affected so that he should not operate machinery, and that repetitive hand movements could be deleterious for him, and also having regard to the medical evidence generally, I consider the concession made by the plaintiff, expressed in the identified percentage, to be reasonable and very fair to the defendants. I accept that concession.

Accordingly, the assessment of a loss of $351 per week net at 5 per cent over 28 years (x 796.6) less 15 per cent for conventional vicissitudes, and deferred for 2 years (x 0.907) yields an amount of $215,562 in respect of the second stage of the assessment of future loss of earning capacity.

It remains necessary to combine the calculation emerging from the first stage of the assessment, namely $15,665, together with the calculation from this final stage of the assessment. This reveals a total assessment of $231,227. I therefore assess the plaintiff's entitlement to damages for future loss of earning capacity in the sum of $231,227.

The convention is for the loss of past employer funded superannuation to be assessed at 11 per cent of the amount assessed to represent past loss of earning capacity. Accordingly, applying that approach, 11 per cent of $30,630 is $3369. I therefore assess the plaintiff's damages for past superannuation loss in the amount of $3369.

Consistent with the approach taken with respect to the assessment of past loss of employer funded superannuation, applying the same convention to the calculation of future superannuation losses, 11 per cent of $231,227 yields an amount of $25,434. This sum has already been discounted for vicissitudes. I therefore assess the plaintiff's damages for future superannuation loss in the amount of $25,434.

The parties have agreed on the amount to be assessed on account of the claim for the value of past domestic assistance in the sum of $22,670. That amount represents the value of the services provided gratuitously to the plaintiff by others, including by his girlfriend, who has been massaging the painful site of his injury for between 45 minutes to one hour per day to alleviate the discomfort the plaintiff feels at that site, in addition to other forms of assistance such as cutting up his food for him and performing various domestic tasks. I therefore assess damages for past domestic assistance in the agreed sum of $22,670.

The plaintiff claims damages for future domestic assistance in the amount of $69,489. This amount is identified in the plaintiff's submissions as being derived by the projection of 2 hours of domestic assistance per week at $35 per hour. In contrast, the defendants submitted that there should be no allowance for any such damages.

Any award for such damages must necessarily be based on evidence justifying an award. This requires that a review be undertaken of the evidence of the plaintiff and of the expert medical and allied opinions that touch upon this issue.

The plaintiff's evidence was that he has difficulties with his right hand, including with cutting up his food, managing objects and screwing them into place using his right hand, he gets a tearing sensation in his right wrist, he has numbness in a significant proportion of his right hand, fingers and palm, his arm gets tired quickly on use, he experiences trouble with a range of domestic tasks including bed making, holding a fry pan, ironing and shopping other than in small quantities. In my view that evidence, which I accept, justifies an allowance of damages for future domestic assistance. As the plaintiff's evidence was directed more at the description of his problems rather than an estimation of the time he would require for the provision of the services claimed, it is necessary to review the opinions of the experts to gain insight into the number of hours that should be allowed for quantification of the need for such services.

The opinions of the experts provided a range of time estimates for the provision of services to the plaintiff. Those time estimates ranged from an estimate of 5 - 6 hours per week in the opinion of Dr Bodel, approximately 4 hours per week in the opinion of Ms Davidson, some 58 hours per annum in the case of Ms Zeman. When this range is examined it becomes clear that when giving consideration to the reasonable needs of the plaintiff for such services, the experts had not considered all the relevant matters that ought to have been taken into account when arriving at a proper estimate of the time required for such services. I consider that some of these estimates are unduly narrow and of inadequate proportion to the nature and extent of the problems described by the plaintiff concerning the permanent limitations on his activities due to his impaired right upper limb and his reasonable needs that flow from such circumstances.

I commence my consideration of these needs with a review of the opinions of the occupational therapists. I consider the occupational therapist based estimation of the times required by the plaintiff for future domestic assistance to be flawed on account of several matters.

First, I consider the occupational therapy based assessments to involve an unduly narrow consideration of the plaintiff's abilities to carry out performance based tasks without regard to the potential deleterious effects on the plaintiff of repetition of tasks, as identified by Dr Fry, albeit that his discussion was centred upon the work setting. In my view there is no material difference when considering manual activity for the plaintiff. I consider this to be a significant matter that tends to favour a medical based assessment rather than an occupational therapy based assessment.

Secondly, the allowances made by the occupational therapists, whilst giving the appearance of being task oriented in their analysis of need, seem to me, from a purely practical perspective, to make inadequate allowance for variations in the plaintiff's condition from time to time. I consider this to be a circumstance that requires a more generous allowance than those suggested by the occupational therapists in their reports. In my view this gives a greater relevance to the medical opinions as to the range and nature of restrictions on the plaintiff's suggested activities. Additionally, noting that the plaintiff's girlfriend spent significant daily time massaging his painful right hand, and noting that Dr Wand has endorsed such massage for pain relief, it is significant that the occupational therapy assessments make no significant allowance for such assistance. If massage therapy was provided to the plaintiff professionally, I infer that it would be far more expensive than any allowance made in respect of this head of damage.

Thirdly, I do not regard Ms Zeman's report summarising the plaintiff's abilities and inabilities as being sufficiently explanatory to be reliable. For example, her rationale for stating that the plaintiff was "fully independent in relation to all aspects of meal preparation" was in my view, oversimplified. Given Dr Fry's explanation of the need for the plaintiff to avoid fatigue or overuse of his injured hand, I found her explanation of the plaintiff coping because "he would pace task performance" to ignore the significance of the underlying problem as an impairment creating an injury based need for assistance. The notion of pacing his hand use to avoid overuse pays no regard to the issue of cumulative use amounting to overuse. I consider that it would be wrong not to compensate the plaintiff for that need on account of Ms Zeman's reasoning.

Fourthly, it seems that insufficient allowance has been made by the occupational therapists for home maintenance tasks in the case of a man who is unable to make significant, heavy or repeated use of his right dominant hand, particularly where home, lawn and garden maintenance is concerned. I consider that omission to be unreasonable in the circumstances of a man in his mid-thirties, as it cannot be reasonably assumed that the plaintiff will always live in a flat or an apartment, and inadequate consideration has been given to the possibility of a greater level of need for assistance in this area of activity.

Having reviewed the evidence I reject the submission made by the defendants that there should be no award of any damages for future domestic assistance. That submission is against the evidence and against the weight of the evidence, including the evidence tendered and relied upon by the defendants.

I accept the evidence of the plaintiff as to his stated inabilities to perform a wide range of manually dextrous tasks with his injured right hand and forearm. I accept the medical and allied evidence to the effect that it indicates there should be provision made for a range of allowances for domestic assistance. I accept the opinions of all experts who have provided reasons for the provision of such services. On the question of the reasonable estimation of the compensated time that should be allowed for such services, I accept the opinion of Dr Bodel as to his formulation of 6 hours per week. I consider that an allowance of such hours should be made for the remainder of the plaintiff's life span.

When these matters are taken into account I consider that it would be inappropriate to accept the plaintiff's submission for the allowance of only 2 hours per week for domestic assistance because I consider that to do so would be to ignore the weight of the evidence in particular, the medical evidence. In my view, an allowance of 2 hours per week would result in the plaintiff being unjustly undercompensated for this identified injury created need for such services: Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245, following Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, per Windeyer J at [11] ; p 505; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 at [2] ; p 329.

I prefer Dr Bodel's medically based assessment to the occupational therapy based assessments. I am also fortified in my preference for Dr Bodel's view as Dr Fry took no issue with Dr Bodel's assessment in his own report, although he did not himself seek to formulate the provision of recommended hours. In my view, having considered the matters outlined by Dr Bodel and Dr Fry concerning the plaintiff's manual activity restrictions, I consider Dr Bodel's estimate to be reasonable. I consider that the nature of the plaintiff's deficits indicated that the hours reasonably required be assessed are in the upper range of Mr Bodel's assessment, namely, 6 hours per week.

Although I accept in part Ms Davidson's formulation of the need for assistance, I also consider there are additional matters that should also be considered as being compensable and requiring an allowance of greater than 4 hours per week, namely massaging of his pain affected hand and home, lawn and garden maintenance. I also consider her formulation of hours to be an underestimate.

Whilst it may be said that at present the plaintiff lives in a rented flat and therefore he has no need for assistance with home, lawn and garden maintenance, I consider it would be wrong to conclude that there should be no provision in the award of damages of an allowance for these services to some degree. In considering what is likely to occur in the plaintiff's future life, I have to make some allowance for what I consider to be the strong likelihood or probability that once compensated, the plaintiff will move into a house or town house rather than another flat, which will give rise to a concomitant need to attend to matters of home, lawn and garden maintenance, on a regular basis.

Having given the evidence and these additional matters consideration, I have concluded that it is reasonable that the plaintiff be compensated for the matters identified by the experts but as estimated by Dr Bodel at an average of 6 hours per week of domestic assistance.

I accept as reasonable the submission that such services should be valued at the rate of $35 per hour. The value of 6 hours per week for such services is therefore the equivalent of $210 per week. The projection of $210 per week at 5 per cent over 53 years (x 988.9) yields the amount of $207,669. For two reasons I do not consider it appropriate to discount this sum. First, the actuarial tables used for projection already incorporate a discount for early mortality. Secondly, in this case there is evidence that indicates that the plaintiff uses his right hand excessively for its injured condition. This could be deleterious to his interests. I consider this to be a factor that justifies not making a discount for a possible lessening in the level of the injury based need in the plaintiff's particular circumstances : Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at [19]; p 497, following Brezatz v Przibilla [1962] HCA 54; (1962) CLR 541. I therefore assess the plaintiff's entitlement to damages for future domestic assistance in the sum of $207,669.

The parties have made disparate submissions concerning the plaintiff's entitlement to damages for future out-of-pocket expenses.

On behalf of the defendants, Mr Chen initially submitted that the "parameters of this claim are not entirely clear". After reviewing the plaintiff's submissions concerning future out-of-pocket expenses, in which an amount of $137,680 was claimed, Mr Chen submitted that there should be a global allowance of a sum of $10,000 to allow for future medical treatment.

I consider the defendants' submitted approach to this head of damage to be flawed because the allowance suggested by the defendants has no rational basis in the evidence and the submission did not engage with the specific evidence in favour of making such an allowance, which in my view, for the reasons that follow, calls for a significantly greater sum for future treatment than that allowed for by the defendants. I therefore reject the submission made by the defendants concerning the plaintiff's claim for future out-of-pocket expenses.

In the paragraphs that follow I analyse the submissions made on behalf of the plaintiff in respect of his claim for future out-of-pocket expenses.

The evidence discloses that the plaintiff has had consistent although varied medication needs since his injury. There is no suggestion in the evidence that this need will abate. I infer from the chronic and persistent nature of the plaintiff's pain, which increases with activity, that the need to manage this with medication will continue. That view is supported by the opinion of Dr Wand, who encouraged the plaintiff to continue with medication. That recommendation was not contradicted by any other expert and I consider it to be reasonable in the circumstances whilst there is evidence that the plaintiff should be weaned off opiate medication. There is no evidence this is likely to occur. The plaintiff makes a claim for the types of medication, which he currently takes, namely, Omeprazol or Nexium, Panadeine Forte and Oxycontin. The evidence for these claims is in Exhibit "N".

The plaintiff claims the cost of Omeprazol tablets at the rate of 2 tablets per day, there being 30 tablets per packet, with a packet replacement cost of $32.90. This is the equivalent of $15.35 per week.

The plaintiff claims the cost of Panadeine Forte at the rate of 6 - 8 tablets per day on four days per week, there being 20 tablets per packet, with a packet replacement cost of $15.25. At the lesser rate of intake of 6 tablets per day, this is the equivalent of $18.30 per week.

The plaintiff claims the cost of Oxycontin at the rate of 4 tablets per day on four days per week, there being 20 tablets per packet, with a packet replacement cost of $32.90. This is the equivalent of $46.06 per week. It is significant that the plaintiff's current general practitioner, who has the responsibility for supervising his opioid medications, has stated at page 2 of his report dated 22 April 2009, that although it would be preferable the plaintiff take non-opioid analgesia, the persisting nature of his pain does not in my view enable a submission that he should not be awarded the cost of that medication. I take this view because I accept that the plaintiff's pain is chronic and persistent and there is no evidence that it is likely to abate or that he is likely to be able to cope without supervised opioid medication. Dr Bodel considered that this medication needed to be monitored by the local doctor on a monthly basis.

I consider that the cost of all of these medications should be allowed at the costs I have analysed. In the case of persisting chronic pain there is no proper basis for not making that allowance. It would be unreasonable to deny the plaintiff the cost of these medications in the light of the evidence and in he absence of evidence suggesting this medication is not required. The combined weekly cost of Omeprazol, Panadeine Forte and Oxycontin amounts to $79.71 per week. The projection of $79.71 per week on the 5 per cent tables over 54 years (x 988.9) yields the amount of $78,825.21.

The plaintiff claims the cost of consultations with his general practitioner. He currently sees his general practitioner every three weeks. He claims that an appropriate allowance for this would be to allow for a visit 5 times per annum at a cost of $62 per visit for a Level 2 consultation : Exhibit "L".

The basis for 5 consultations per annum is not apparent in the evidence. On the contrary, Dr Bodel has suggested the plaintiff have monthly consultations with his local doctor. Having due regard to the pattern of consultations to date and to the opinion of Dr Bodel, I consider this cost of 12 such consultations per annum to be justified and reasonable having regard to the evidence concerning the need for the plaintiff to be supervised by a general practitioner on a monthly basis with regard to his intake of opiate medication and for the plaintiff's possible need to consider referral of the plaintiff to a specialist from time to time, within the fields of management of psychology or psychiatry or whatever discipline the plaintiff's doctor thinks is, from time to time, appropriate.

The cost of 12 general practitioner visits per annum at a cost of $62 per visit is the equivalent of $14.30 per week. The projection of $14.30 per week on the 5 per cent tables over 54 years (x 988.9) yields the amount of $14,141.27.

The plaintiff claims the cost of two visits per annum to a specialist at a cost of $152 per visit: Exhibit "L" - AMA Item AC620. I consider that this cost is justified and reasonable to ensure that he is compensated for the cost of consultations with a pain management specialist or such other specialist as his general practitioner may consider to be appropriate at the time. In my view, where the plaintiff suffers from chronic and persistent pain which requires opiate medication, it is necessary to make reasonable provision for the cost of such specialist consultations.

The cost of two specialist consultations per annum at $152 per consultation is the equivalent of $5.85 per week. The projection of $5.85 per week on the 5 per cent tables over 54 years (x 988.9) yields the amount of $5785.06.

The plaintiff makes a claim for consultations with a psychiatrist or a psychologist as suggested by Dr Clark in his report dated 14 April 2009. The suggested course of treatment was consultations every 2 - 3 weeks for between nine months and up to two years at $400 per consultation. The plaintiff submitted the consultations every 2 - 3 weeks over 1.5 years would be an appropriate average. I accept that submission as reasonable. This is the equivalent of $12,480. Given the diagnosis of chronic depression and dysthymic disorder with ongoing features of post-traumatic stress disorder, and the need for psychotropic medication, I consider that the cost of consulting a psychiatrist as recommended by Dr Clark is the preferable option compared with the recommendations of Mr Gilfillan and Ms Myburgh for a psychological counselling program of the order of $3720. I therefore allow a sum of $12,480.

The plaintiff claims the cost of psychotropic medications as recommended by Dr Clark at an estimated cost of $200 per month over 18 months. This is the equivalent of $3600.

The plaintiff claims the cost of a pain management program as recommended by Mr Gilfillan and Ms Myburgh, at an estimated cost of $7500. Given that the plaintiff suffers from chronic and persistent neuropathic pain for which there appears to be no cure, I consider it to be reasonable that he undergo this programme to try and learn strategies for coping better with his chronic pain. I therefore allow this sum. As the results of such a programme are uncertain, I do not consider an allowance of this amount to justify reducing the allowance made for future medication costs.

The plaintiff makes a claim for 10 years of physiotherapy and a gymnasium program to assist him to reach his ultimate point of maximum medical improvement. Dr Fry has indicated that although the plaintiff has reached his point of maximum medical improvement for diagnostic purposes, there is some remaining scope for limited incremental improvement over the ensuing 10 years. Given the plaintiff's deficits, I consider that an allowance for a regime of physiotherapy and gymnasium exercises over a period of 10 years to assist to maximise this potential level for improvement would be a reasonable form of rehabilitative expenditure, particularly where the cost claimed is in effect limited to the cost of gymnasium membership and does not include the separate and significant cost of physiotherapy which has been identified as being between $55 and $65 per session. An annual cost of $700 is the equivalent of $13.46 per week. The projection of $13.46 per week on the 5 per cent tables over 10 years (x 412.9 rather than x 555 as was submitted) yields an amount of $5557.63.

In summary, I allow the following items for future out-of-pocket expenses:

(a) Current medication $78,825 (b) General practitioner consultations $14,141 (c) Specialist consultations $5,785 (d) Psychiatric / psychologist consultations $12,480 (e) Psychotropic medication $3,600 (f) Pain management programme $7,500 (g) Gymnasium / physiotherapy $5,557 Sub-total $127,888

The combined total cost of the above items is $119,988. I therefore assess the plaintiff's claim for future out-of-pocket expenses in the sum of $127,888.

Exhibit "N" embodies the agreement between the parties concerning the extent of the plaintiff's past medical and pharmaceutical expenses in the sum of $5,019.50. I assess the plaintiff's out-of-pocket expenses in the rounded amount of $5,019.

My assessment of the plaintiff's damages is summarised as follows:

(a) Non economic loss $189,500 (b) Past loss of earning capacity $30,360 (c) Future loss of earning capacity $231,227 (d) Past loss of superannuation $3,369 (e) Future loss of superannuation $25,434 (f) Past domestic care services $22,670 (g) Future domestic care services $207,669 (h) Future out-of-pocket expenses $127,888 (i) Past out-of-pocket expenses $5,019 Total $843,136

I have found that the plaintiff's injuries were caused by the negligence of each of the two defendants. I have found that there was no contributory negligence on the part of the plaintiff. I have assessed the plaintiff's entitlement to compensatory damages in the sum of $843,136. The first defendant has succeeded in its cross claim against the second defendant. I consider that the defendants should bear the responsibility for the plaintiff's damages in the proportion 25 per cent by the first defendant RTA and 75 per cent by the second defendant managing agent.

I reserve the question of whether any further order needs to be made in respect of an expanded jurisdiction beyond $750,000 pursuant to s 51(2) and s 51(4) of the District Court Act 1973 in the event that there is correspondence and particulars justifying the making of such an order : Richards v Cornford [2010] NSWCA 99 per Basten JA at [12]. If the parties wish to pursue that course, they have liberty to apply on notice for further orders.

I make the following orders: (a) Verdict and judgment for the plaintiff against the defendants in the sum of $843,136;

(b) The defendants are to pay the costs of the plaintiff on the ordinary basis unless otherwise ordered;

(c) I find the responsibilities of the defendants for the plaintiff's damages is in the proportion 25 per cent on the part of the first defendant RTA and 75 per cent on the part of the second defendant managing agent;

(d) Verdict and judgment for the cross claimant against the cross defendant on the cross claim in the sum of $632,352;

(e) The cross defendant is to pay 75 per cent of the cross claimant's costs on the cross claim on the ordinary basis unless otherwise ordered;

(g) Liberty to apply on 7 days notice if further orders are required.

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