Economic Loss
50The plaintiff completed Year 11 and undertook an apprenticeship. He moved to Queensland, where he worked on a fishing trawler as a deckhand and first mate. In the course of that employment, he lost the top of his right index finger. In 1998, the plaintiff joined the Navy and moved to the South Coast. In 2002, he left the Navy and began to work as an occupational health and safety officer within the construction industry.
51From 2005 the plaintiff worked for Zauner Constructions as an on-site safety and first aid officer. His employer undertook large-scale construction projects on the South Coast and elsewhere in NSW. In the period leading up to the accident he was employed on the construction of the Charles Sturt University at Orange. He was required to induct workers in OHS requirements, walk around the site to check for unsafe work practices, climb scaffolding up to three or four storeys in height and conduct work safety meetings. Overtime was often available. He received other allowances. He was provided with a company vehicle, a fuel card and a mobile telephone. He was a valued employee who related well to fellow workers. He loved his work.
52Between 2005 and 2009 the plaintiff was in continuous employment with Zauner Constructions. At the time of the accident his work at Orange was almost complete. There had been mention of working for Zauner at a site in Broken Hill. The plaintiff was prepared to "go anywhere". Mr Schoroburu, the manager of the employers South Coast Office, gave evidence that since 2009 the company has expanded its operations and has been continuously engaged on a number of large projects. Since 2009 the number of safety officers employed by the company has increased. Although there was a significant hiatus between the cessation of the Orange project and the commencement of the Broken Hill project, Mr Schoroburu was "certain" that, but for the accident, Zauner would have employed the plaintiff on a continuous full-time basis. However, the company had been obliged to terminate the plaintiff's employment because his disabilities rendered it unsafe for him to be on a construction site.
53It was agreed that, at the date of the accident, the plaintiff's net earnings including allowances were $970 per week. Payslips for the period leading up to the accident indicate that the plaintiff's net salary, excluding allowances, was a little over $900 per week. While working in Orange he often earned $1400 net per week, including allowances.
54When assessing past and future economic loss pursuant to s 126 of the MACA, a court must determine the plaintiff's most likely future circumstances but for the accident and deduct his or her residual earning capacity, then make a further deduction to allow for vicissitudes: Kallouf v Middis [2008] NSWCA 61 at [7].
55I am satisfied that, but for the accident, the plaintiff's most likely future circumstances are that he would have worked continuously for Zauner Constructions until the usual retirement age of 67 years. Zauner was happy with the plaintiff's work and the plaintiff was very happy with his employer. Employment opportunities within the company have expanded and the number of safety officers employed by the company has increased since 2009. The plaintiff's colleague, Brian Owen, undertook similar work to the plaintiff at Orange. Mr Owen remains in employment with Zauner. Although the plaintiff's position involved him working on construction sites, it was a supervisory position that did not involve heavy work. He could have managed the work until 67 years of age. It is likely that the plaintiff would have worked on the South Coast. However, when work was not available on the South Coast, the plaintiff would have worked elsewhere in the State and been compensated by payment of the appropriate allowances. In the unlikely event of a hiatus in work opportunities, the plaintiff would readily have found employment with another employer or, in the case of short periods, could have taken paid leave. There was some prospect of promotion and the associated opportunity to increase earnings.
56The plaintiff's cognitive and vision impairments make it impossible for him to work in the building industry. He is unable to work at heights, he has difficulty navigating uneven ground or unfamiliar environments (per Dr Delaney, an ophthalmic surgeon), he cannot concentrate or solve problems of any complexity, his memory is poor, he cannot work under pressure and he has difficulty with social interaction. Further, it is difficult for the plaintiff to travel to work because he cannot drive and has little access to reliable public transport.
57As to the plaintiff's ability to undertake other employment, in June 2012, Ms Batchelor reported that:
"It is my opinion that the totality of (the plaintiff's) acquired impairment is beyond that which any employer could realistically be expected to tolerate. He is extremely slow to complete even simple tasks, he has difficulty in learning and recalling information, his planning is poor, he has difficulty in generating verbal responses, he is slow to deduce the solutions to novel tasks and his thinking is perseverative."
58Similarly, in February 2013 Dr Jungfer, a psychiatrist, reported that personality and cognitive impairments deprived the plaintiff of "any capacity for open employment", and noted that his capacity was further restricted by his vision impairment. In 2011, Professor Fearnside reported that the plaintiff would probably never return to employment in an open marketplace. His poor memory and concentration rendered him "essentially unemployable". Dr Fitzsimons, a neurologist who provided a report to the defendant, agreed in general terms with Professor Fearnside's comments about employability.
59Professor Pryor provided a report to the defendant. He opined that the plaintiff was capable of work as a ticket seller, vending machine attendant, leaflet or newspaper deliverer, shelf-filler or product assembler. In cross-examination, it was suggested to the plaintiff that he could work in a plant nursery.
60Realistically, such occupations are not open to the plaintiff. He would have difficulty travelling to any job. Further, in any position, he would have difficulty accepting and remembering instructions. He could not cope with the social interaction and occasional pressure of working as a ticket seller. He could not travel from machine to machine, as would be required of a vending machine attendant. In addition, his eyesight would probably pose difficulties with such a position. He could not deliver leaflets or newspapers because his eyesight makes it very difficult for him to aim a leaflet into a letterbox. The work of shelf-filling or product assembly would be too physically arduous and the plaintiff could not maintain sufficient concentration. Even if nursery work was readily available on the South Coast (and the evidence suggests that it is not), the plaintiff would be in danger of tripping due to his impaired vision, and he could not cope with occasional social interaction with the public, such as answering questions.
61I am satisfied that the plaintiff has no residual earning capacity. The defendant has failed to produce any persuasive evidence that there is an occupation that the plaintiff is capable of performing and in which there is likely to be a position open for a person such as the plaintiff.
62The plaintiff has calculated past and future economic loss based on the agreed figure of $970 per week, and has indexed that figure for 3.66 years to obtain a current wage of $1100 net per week. I consider those figures to be conservative. As stated, I find that there was no real risk of a lengthy period of unemployment. I see no need to depart from the standard allowance of 15% for vicissitudes.