McGoldrick v Dendrobium Coal Pty Ltd - [2022] NSWSC 1341 - NSWSC 2021 case summary — Zoe

NSWNSWSC

McGoldrick v Dendrobium Coal Pty Ltd

[2022] NSWSC 1341

Supreme Court of NSW|2021-09-20|Before: Garling J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-09-20

Before

Garling J

Catchwords

[1981] HCA 41 Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
[1990] HCA 20 Medlin v Statement Government Insurance Commission (1995) 182 CLR 1

Source

Original judgment source is linked above.

Catchwords

[1981] HCA 41 Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638[1990] HCA 20 Medlin v Statement Government Insurance Commission (1995) 182 CLR 1

Judgment (22 paragraphs)

[1]

Judgment

Troy McGoldrick ("the plaintiff") was born, educated, worked and has spent his life in the Wollongong area. After his early education, he commenced tertiary studies at the University of Wollongong in 2007 in the discipline of Mining Engineering.
In mid-2011, the plaintiff graduated with an Honours Degree in Mining Engineering. Whilst studying, he worked in various coal mines and in other roles that required him to visit coal mines and the Port Kembla Coal Terminal.
After graduation he applied for a graduate mining engineering position with BHP Billiton Illawarra Coal ("BHP Billiton"). At that time, BHP Billiton was highly regarded in the region for the mining which it was undertaking. Over 200 candidates had applied for a position with BHP Billiton as a Graduate Mining Engineer. Six were selected of whom the plaintiff was one.
BHP Billiton in due course undertook a corporate restructure which saw the ownership and operation of the three Illawarra coal mines transferred to South 32 Ltd. It will be convenient in this judgment to refer to South 32 as the plaintiff's employer and the ultimate owner of the three Illawarra coal mines without regard to the time at which the transfer actually occurred.
The graduate role was one of three years in length, with each Graduate being required to spend a year working at each of South 32's three mines before being confirmed in a permanent role as a Mining Engineer. Those three mines were: the West Cliff Mine, the Dendrobium Mine, and the Appin Mine.

[3]

These Proceedings

The plaintiff commenced these proceedings by filing a Statement of Claim in June 2016.
As just noted, the defendant admitted its liability to the plaintiff in negligence on 1 September 2021, less than a month before the commencement of the hearing of the plaintiff's claim.
Accordingly, the proceedings came before the Court for an assessment of damages. It is common ground that damages are to be assessed by reference to the common law, but as that law has been altered by Part 5 of the Workers Compensation Act 1987 ("the Act"). As will be apparent, Part 5 is not completely comprehensive.
It is convenient to set out the relevant sections of Part 5 of the Act here. Relevantly, it includes: "Division 2 Common law and other remedies generally 151 Common law and other liability preserved This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides. … Division 3 Modified common law damages 151E Application - modified common law damages (1) This Division applies to an award of damages in respect of - (a) an injury to a worker, … being an injury caused by the negligence or other tort of the worker's employer. 151F General regulation of court awards A court may not award damages to a person contrary to this Division. 151G Only damages for past and future loss of earnings may be awarded (1) The only damages that may be awarded are - (a) damages for past economic loss due to loss of earnings, and (b) damages for future economic loss due to the deprivation or impairment of earning capacity. (2) ... 151H No damages unless permanent impairment of at least 15% (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. … 151I Calculation of past and future loss of earnings (1) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 34 (even though that maximum amount under section 34 is a maximum gross earnings amount). (2) The maximum amount of weekly payments of compensation under section 34 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits). (3) ... 151IA Retirement age In awarding damages for future economic loss due to deprivation or impairment of earning capacity … the court is to disregard any earning capacity of the injured worker after pension age (as defined in the Social Security Act 1991 of the Commonwealth for persons other than veterans). 151J Damages for future economic loss - discount rate (1) For the purposes of an award of damages, the present value of future economic loss is to be qualified by adopting the prescribed discount rate. (2) The prescribed discount rate is - (a) a discount rate of the percentage prescribed by the regulations, or (b) if no percentage is so prescribed, a discount rate of 5 per cent. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages. … 151M Payment of interest (1) Limited statutory entitlement A plaintiff has only such right to interest on damages as is conferred by this section. … (4) (a) Interest is not payable (and a court cannot order the payment of interest) on damages unless - (i) information that would enable a proper assessment of the plaintiff's claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or (ii) the defendant has had a reasonable opportunity to make a revised offer of settlement (where it would be appropriate to do so) in the light of further information given by the plaintiff that would enable a proper assessment of the plaintiff's full entitlement to all damages of any kind but has not made such an offer, or (iii) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made. (b) The highest amount offered by the defendant is not unreasonable if, when the offer was made, the defendant was not able to make a reasonable assessment of the plaintiff's full entitlement to all damages of any kind. (c) For the purposes of this subsection, an offer of settlement must be in writing. (5) Calculation of interest If a court is satisfied that interest is payable under subsection (4) on damages - (a) the amount of interest is to be calculated for the period from the date of the death of or injury to the worker until the date on which the court determines the damages, and (b) the amount of interest is to be calculated in accordance with the principles ordinarily applied by the court for that purpose, subject to this section. (6) Rate of interest The rate of interest to be used in any such calculation is three-quarters of the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005 for the period concerned. (7) Judgment debts Nothing in this section affects the payment of interest on a debt under a judgment or order of a court. …"

[5]

Post-Accident Treatment

The ambulance was called shortly before 2.30pm. It arrived at the above‑ground area of the coalmine at about 3.15pm. It was about 3.50pm by the time plaintiff was loaded into the ambulance and driven to the Hospital.
The plaintiff was admitted to the Hospital after he was assessed and treated in the Emergency Department. He remained as a patient in the hospital until 8 July 2013. Investigations demonstrated that the plaintiff had suffered a left foot crush injury with multiple fractures which were detected on a CT scan.
The result of the CT scan was reported in this way: "CT left foot There is a comminuted fracture involving the base, the second metatarsal with disruption of articular surface of the TMT joint. There is slight widening of the first webspace. There are also comminuted fractures involving the plantar aspects of the bases of the third and fourth metatarsals but not significant disruption of the associated articular surfaces. There is a somewhat coronal fracture involving the cuboid, with some comminution anteriorly. There is involvement of both the proximal and distal articular surfaces. There is an intra-articular fracture involving the plantar aspect of the navicular. There is minimal displacement at this fracture site. There are multiple avulsion fracture fragments, medial to within the first tarsometatarsal joint. There is a minimally displaced fracture involving the base of the proximal phalanx of the second toe medially. There is extensive soft tissue swelling around the foot."
During the plaintiff's stay in the Hospital, it became apparent that, associated with the left foot crush injury and fractures, there were significant soft tissue injuries which led to a number of large blisters.
The soft tissue injury and consequent blisters required debridement in the operating theatre, and a xenograft to the dorsum of the foot. This treatment to the blisters was principally provided by Associate Professor Peter Haertsch, a plastic surgeon.
In an early report of Associate Professor Haertsch, dated 18 July 2013, he described his treatment in the following terms: "Apart from causing multiple fractures within the foot itself, there were a number of areas of contusion and blistering over the anterior aspect of the right lower leg, his foot and the sole. Prior to the commencement of any orthopaedic intervention, he was referred to me for dealing with the soft tissue injury. He was taken to theatre and, under general anaesthetic, five separate areas of blistering and dermal injury were thoroughly scrubbed and debrided. It was deemed the injury over the antero-lateral aspect of the foot was sufficiently deep to require xenografting and was subsequently engrafted."
In that report, Associate Professor Haertsch went on to note this: "Following the surgery, he was discharged and has been reviewed in my Rooms once week ago. All the wounds have healed bar the xenografted area, which has almost healed. He has been discharged from further follow up and the prognosis is generally good. The diagnosis is that of friction type dermal injury secondary to a rock fall. From a skin point of view there will be no permanent impairment, however his orthopaedic injuries are substantial."
Associate Professor Haertsch's reports and opinions were not challenged. I accept them.

[6]

Orthopaedic Injuries

Shortly after discharge from the Hospital, upon the referral of his general practitioner, the plaintiff was seen by Dr Anthony Cadden, a specialist orthopaedic foot and ankle surgeon.
In Dr Cadden's first report of 19 July 2013, he said: "Whilst in hospital, he had an x-ray showing fractures through the left mid-foot region. There was no gross displacement. CT scanning did show fractures to multiple small bones. Whilst in hospital, he developed significant fracture blisters over the dorsal aspect of the foot and also extending medially and also up on to the leg. He states that he had popping of the blisters and treatment by the plastics. He was initially in a back slab, but had this removed by the plastic surgeons after removing his dressing. He has not been in any back slab since. Swelling is still persisting to the left foot. He is on crutches with a bandage around his foot. … Examination: … there is significant swelling to his left foot compared to his leg. He has signs of previous burst fracture blisters with healed skin. There is a small 1-2cm area on the medial aspect of the foot which still has not healed over. … … Impression: This young gentleman has had a severe crush injury to his left foot complicated by fracture blister formations. This gives an indication of the amount of soft tissue injury that occurred. I placed him into a Vacocast boot with pressure relief on the dorsal foot. This will try and keep his foot still and allow some of the swelling to settle. He will need to continue with dressings to the medial foot. There is no indication of any surgery at this stage, mainly due to the soft tissue changes. … "
Dr Cadden next saw the plaintiff on 6 August 2013 - which was about six weeks after his injury. Dr Cadden reported that the plantar ligaments to the second and third metatarsals were intact. The fractures were well-aligned with no displacement of the joints. He noted that there was a resolving haematoma to the plantar aspect of the foot and that there was still marked swelling to the tissues with osteopenia of the bone.
Dr Cadden thought that it was appropriate for the plaintiff to start walking in a boot and doing gentle exercises to the ankles and toes. He anticipated that the plaintiff would undertake physiotherapy over the next few weeks.
Dr Cadden continued to review the plaintiff. He saw him at about 12 months after the injury on 8 July 2014. He said this: "It has been a year since [the plaintiff's] injury. He has noticed that there has been improvement to his foot during that time, but he still has limitations. The swelling is much less. If he does too much on the foot he will still get an ache and discomfort both through the mid-foot and medial side of his left angle. He has tried doing 10km walks on the treadmill which would be part of his duties underground, but had issues with discomfort several days afterwards. On examination the ankle is stable. There is only mild swelling to the foot. There is not pitting oedema. There is no pain with mid-foot rotation or pressure through the mid-foot region. Given the crush injury to his foot, he may always have some form of discomfort and stiffness with the joints. This may limit him being able to return to full duties underground. He may get further improvement over the next six months, as he is seeing some improvement at the moment. It is only at that stage that a determination can be made as to whether he will [be] fit for duties such as carrying 18kg or walking for up to 15km underground."
Dr Cadden continued to see the plaintiff until 14 April 2015, which was about 21 months after his injury.
At that last consultation, Dr Cadden noted that since the injury there had been some improvement to standing and walking tolerance, but the plaintiff had not returned to normal capacity. He noted that the plaintiff had tried to return to work underground and had pain in the foot which had limited his capacity so to do.
Dr Cadden noted that the plaintiff had a persistent sense of stiffness to the foot and discomfort after prolonged standing.
He said this: "At this stage of his injury, there is a likelihood of ongoing discomfort and swelling to the foot with prolonged activity. This is likely to limit his ability to return to underground work. He is still keen to continue engineering work and would be best considered for an above ground role. In the future, there is a small potential for mid-foot joint degenerative change. This may not occur for several years. This would be secondary to the crush injury."
Dr Cadden was asked to provide a report to the plaintiff's solicitors and to answer a number of questions. That report, which was dated 12 September 2016, included the following: "6. Details of any particularly painful procedures or consequences of the injury Given the injuries to bones around the mid-foot, there may be a potential for degenerative joint changes in the future or persisting pain in the foot. 7. Prognosis? A likelihood of persisting pain to the left foot. … 10. Our client's fitness for employment in his pre-injury occupation? As of 2015, he was unfit to return to underground duties, and has lost his position from this line of work. 11. Our client's fitness for work other than his pre-injury occupation? He would be able to work on flat surfaces in a position where not all his time is spent on his feet. 12. Need for future surgery and prospects of success of any proposed operation He would only need surgery if there was a development of degenerative changes in the future. Fusion of the affected joints can be successful in alleviating pain."
Dr Cadden noted that if fusion of the foot was required, such an operation would be estimated to cost up to $10,000.
Dr Cadden was not required for cross-examination. I accept that his observations were accurate, and I accept his opinions about the plaintiff's injuries and their consequences.
Against the background of the initial medical assessments and reports, it is appropriate to now note the evidence of the plaintiff.

[7]

Evidence of the Plaintiff

The plaintiff's evidence in chief was contained in three Evidentiary Statements made respectively on 4 June 2018, 20 February 2020 and 24 August 2021.
I have earlier outlined that I accept the plaintiff's evidence as being reliable and truthful. I also accept its accuracy.
Whilst the plaintiff was in the Hospital, and because of the complications occasioned by the nature of the crush facture injury including the swelling and blisters, he was advised that there was a moderate risk of infection and a high risk of compartment syndrome. He was advised that if either of those two conditions came about, there was a reasonable chance that he might lose his foot because it would be necessary to amputate it. Unsurprisingly, for such a young man, that advice came as a shock and caused him considerable anxiety and distress.
When he was discharged from hospital, the plaintiff returned to the care of his parents who lived in the Wollongong area. He used crutches to get about, but found it difficult to do so, particularly if he needed to get to the bathroom quickly.
His general practitioner, who undertook a home visit, prescribed him both Oxycontin and Endone which are strong painkillers. He was warned against becoming addicted to such drugs.
The plaintiff's blistered foot area required daily dressing changes after the first two weeks. He attended at the local medical centre to have those dressings changed and his wounds bathed.
Not unnaturally, the plaintiff was keen to return to work. His programmed time at the Dendrobium Mine had elapsed, and for the third year of the Graduate Program he was transferred to the Appin Mine by his employer South 32.
Having received advice from Dr Cadden that, if he wished to, he could go back to work on crutches, with the limitation that he could not bear weight on his foot or walk on uneven ground, the plaintiff made enquiries with his employer about his return to work. He was told that so long as he was on crutches, he would not be allowed to return to the coalmine site.
The plaintiff had physiotherapy on the first occasion on 20 September 2013. At that time, he found that he was still getting significant swelling and discomfort in his foot whenever he was upright, and he felt pain if he put any weight on his foot.
With the assistance of the physiotherapist, over time, he was able to walk without crutches, but wearing a boot. By 30 September 2013, the plaintiff had returned to work. He started back at the Appin Mine working in a surface‑based role as part of the production team. Initially he commenced working for four hours per day. The reason he could only work a limited number of hours was because he found that, even if he was sitting at a desk, his foot would nevertheless become sore and swollen.
His part-time work continued over the next three months until eventually he was back working an ordinary shift. He continued to have physiotherapy regularly.
By November 2013, he was advised to start hydrotherapy to enable him to walk unaided and without his boot.
After another two months or so, the plaintiff found himself able to walk without the boot on his foot. However, he found that he could only walk quite slowly because of the pain in his foot as well as significant instability coupled with weakness in his leg from its lack of use and lack of weight bearing since his accident.
The plaintiff was carrying out only computer-based work whilst he was at the Appin Mine. Whilst he aimed to get back to underground work, that was not possible at that time. He felt, with good cause, that his ability to go underground was holding him back in his career progression.
The reason the plaintiff was not allowed to go underground was that before being allowed to do so, he had to complete what is described as an "Egress Walk". Every worker who went underground had to be physically able to complete an Egress Walk. Such a walk is used underground in the event of an emergency in circumstances where vehicles cannot be used and the individuals who are underground must walk out of their work area to a place of safety. This means that a person underground must be able to walk 15km on uneven ground in underground work boots and gear and carrying an oxygen tank.
In order to get back to working underground, the plaintiff decided he would do all he could to get to a physical state where he could successfully undertake and complete an Egress Walk.
By March 2014, the plaintiff was having treatment sessions with an exercise physiologist. He found that he needed to also have podiatry sessions with an expert podiatrist because his foot was still very stiff and had no real movement. Because of the swelling in his foot, he required custom orthotics.
Such was the plaintiff's determination to get back to work, he was doing at least four sessions a week with an exercise physiologist's guidance.

[8]

Plaintiff's Return to Work

Notwithstanding the plaintiff's attempts to improve his physical condition and ability to walk, there were considerable difficulties with his return to work. His employer told him at the end of July 2014, i.e., about 12 months after his injury, that South 32 no longer had a position for him as a Mining Engineer. He was offered three alternatives: to take a redundancy; to take a job as a surface storeman; or to take a job as an underground operator. He was clearly still unfit to work as an underground operator and had not received medical clearance so to do.
The plaintiff was left with very little choice at all by South 32. Either he took a redundancy, or he became a storeman - a position which was well below one suited to his tertiary qualifications in mining engineering. He commenced work as a storeman on the surface in August 2014. Having regard to the fact that he was an Honours Graduate in Mining Engineering, that he had been placed in the Graduate Program for Mining Engineers after a highly competitive interview process and that he had been working successfully as a Graduate Mining Engineer prior to his accident, it was a most demeaning position for him to have been placed into. His former colleagues commented about it to him. This naturally upset him.
About four months later, the co-ordinator responsible for assisting the plaintiff to return to work asked him to take such steps as he could to ensure that he "got back underground as soon as possible". At the plaintiff's request, his general practitioner permitted him to undertake an underground walking trial.
That took place shortly afterwards. He was driven to the area where one of the coal production panels was. He got out of the vehicle and began to walk on the uneven ground at or near the coalface. He found that his foot was stiff and rigid and that walking caused him particular pain. He found that he had no articulation or movement in his foot which made walking on rocks and uneven ground extremely difficult. He was able to walk around for about 30 minutes before finding that the pain across his mid-foot and the metatarsal of his foot (where most of the fractures were) started to increase. He was unable to stand for much longer underground. Clearly, at this time he could not successfully complete an Egress Walk.
Three months later, the plaintiff was again approached by the co-ordinator and asked to demonstrate that he was capable of working underground. In order to get medical clearance, the plaintiff returned to see Dr Cadden. This is the appointment referred to earlier on 14 April 2015.
In the course of that consultation, Dr Cadden informed the plaintiff that, having regard to the length of time which had passed since the accident, notwithstanding all of the attempts that he had made to improve his condition with rehabilitation and physiotherapy, and that the fractures of his foot had healed, the extensive soft tissue damage to his foot meant that he was unlikely to see any further improvement and that it was highly probable that he would develop arthritic complications in the foot in the due course.
The plaintiff explained to Dr Cadden the requirement for an Egress Walk before he was able to be employed underground. Dr Cadden gave him this advice: "If this Egress Walk is a requirement to be a mining engineer, then you're never going to be able to work as a mining engineer now or in the future."
This rather brutal and undoubtedly confronting description of his disabilities, to a young man as he was, who had high expectations of his future, was quite shattering. The plaintiff said in his statement, which I accept, that he went into a serious depressive state realising that his career hopes and aspirations were gone.
Shortly after that consultation, the plaintiff was denied any further payment by South 32's insurance company for podiatry treatments and further physiotherapy treatments notwithstanding that they provided him with considerable benefit. This refusal to pay for these beneficial treatments was apparently because Coal Mines Insurance concluded that the injuries were permanent.
The opinion of Dr Cadden about the plaintiff's inability to work underground again made its way to the Human Resources Team at South 32. The plaintiff was offered a job at the Appin Mine as a "relief control room operator". The role of a control room operator involves sitting at a desk in front of a number of computer screens and monitoring the entire mine for safety and production. There are many different systems that require monitoring. Usually on a shift there is somewhere between 100-150 people working underground. A 12-hour shift in the control room, besides requiring observations to be made, also requires the operator to answer between 250-300 phone or radio calls.
In April 2016, after an amalgamation of control rooms for the Appin Mine and West Cliff Mine, and a member of staff taking a redundancy, the plaintiff was offered a job as a fulltime control room operator. Since that time, up until the hearing, he continued in that position.
The plaintiff was obviously highly skilled and competent in this role although, clearly, it was not his chosen career.
In June 2016, he took over the monitoring of the night shift on a 12 hour roster. He obviously did well because, in a record of a discussion regarding an incident which had occurred at the mine, he was commended for his good work and vigilance with respect to dealing with the gas levels which could have become very dangerous.
The plaintiff has continued in his role as a control room operator at the Appin and West Cliff Mines. He works a roster of four days on/four days off, completing 12 hour shifts on each day.
However, an issue in the hearing was whether such employment was secure. It will be necessary to return to that in due course.
The plaintiff continues to have ongoing pain, discomfort and stiffness in his left foot. When he is at work, from time to time, he has to elevate his left foot when he feels discomfort. He also does that at home. He takes medication and uses heat packs to alleviate the discomfort in his foot.
The plaintiff's own personal assessment is that the condition of his left foot is slightly worse than it was in June 2018. He finds that the treatment provided by his podiatrist does not provide him with relief for as long as it once did.
Because of his ongoing difficulties with his left leg, the plaintiff tends to favour his right leg so as to alleviate the discomfort in his left leg. As a consequence, he has had some pain in his right lower limbs which he addresses by temporary medication and occasional physiotherapy.

[9]

Orthopaedic Experts

After a conclave of orthopaedic surgeons (Dr James Bodel, Dr Nigel Marsh and Dr Roger Rowe) a joint report was prepared recording the extent of agreement. There was significant agreement and very little disagreement.
I have set out above the injuries which the plaintiff suffered in the coal and rock fall.
I accept the agreement of the orthopaedic experts recorded in the following material: "Answer to Question 5. The experts agree that the plaintiff has an intermittent dull ache in his left foot and difficulty with prolonged standing, walking and sitting. The plaintiff is unable to run, unable to resume soccer or touch football, has difficulty walking on uneven ground, needs to use a handrail when descending stairs and has scarring and a loss of sensation on the dorsum of his left foot. … The experts agree that there is a risk of degenerative changes developing as a result of the plaintiff's injuries. The experts would expect to see such degenerative changes in the mid-tarsal or tarsometatarsal region of the plaintiff's left foot. The experts agree that the speed of development of degenerative change would not be altered by restricting the plaintiff's work or domestic activities. The experts agree that the speed of the development of any degenerative changes is uncertain. The experts agree that ongoing treatment will probably include the periodic use of analgesic medication and perhaps orthotics. The experts agree that in the long term the plaintiff may require mid-tarsal fusion surgery. The experts agree that the plaintiff is permanently unfit for underground work or work on any irregular ground. The experts consider the plaintiff to be fit for sedentary or semi-sedentary work such as his current job. The experts agree that all future work should exclude extensive walking on rough ground; heavy lifting, pushing or pulling or carrying; the need for agility; extensive stairs and any ladders. The experts agree that the plaintiff should be able to remain in his current or similar work until normal retirement age around 67 years."
The experts could not agree on whether the plaintiff walked with an abnormal gait. The disagreement arose because neither Dr Marsh nor Dr Rowe noted any abnormal gait during their examination of the plaintiff. Dr Bodell noted a flat‑footed gait/pattern in 2018 when he examined the plaintiff. The experts did agree that if there was such an abnormal gait, it would have been caused by the crush injury.

[10]

Abnormal Gait

The plaintiff's mother, Fathima, set out her observations in a statement that was tendered, and which was not the subject of any challenge by cross‑examination. In that statement, given about six years after the injury, Fathima McGoldrick recorded that she had observed that the plaintiff walked with a limp.
A friend of the plaintiff, Mr Aaron Lavender, in a statement of May 2019, also recorded his observations that the plaintiff would walk with a limp and, at least in the earlier stages of recovery, would sit down and rest after walking short distances or after he had been standing for short periods of time. He also noted that the plaintiff grimaced when he walked and moved in an awkward manner.
The podiatrist who treated the plaintiff, Mr Peter Macfarlane, prepared a report which included the following observations, which were not challenged by cross-examination, about the plaintiff's gait: "The left foot is noted to have minimal motion from heel contact (HC) to toe off (TO). The foot strikes normally at HC with a slight externally rotated position. This external rotation is increase as the rest of the foot contacts the ground. During midstance (MS) the left foot is completely stiff with no normal motion detected. Heel lift is early and initiates a late forefoot abductory twist as the body passes over the foot and attempts to continue in a forward motion. The left knee offers restricted motion in gait due to the reduction in the left foot motion. The right foot and knee [are within normal limits] in all aspects of gait. The only compensation notable in the right leg is at hip level as the hips swivel to compensate for the lack of motion in the left foot and knee. … Diagnosis: … There are… significant restrictions to most if not all left foot joints especially throughout the midtarsal area. This has caused a significant change in Mr. McGoldrick's gait pattern placing increased pressure on the ligaments and tendons that help maintain foot function and integrity. …" Treatment: To best address the foot level problems it is advised that Mr McGoldrick be supplied with custom orthotic devices to restore as much natural motion back to the foot, leg and hips as possible. By restoring this more natural gait pattern the ligaments, tendons and joints are placed under reduced stress and should therefore be less painful on a day to day basis and whilst exercising. It is advised that 2 sets of orthotics be designed, the first for Mr. McGoldrick's work boots and the 2nd for his everyday footwear. This allows a more custom device for each situation and footwear increasing life span of said devices and overall effectiveness of the prescribed devices. …"
Senior counsel for the defendant in final submissions accepted that the preponderance of evidence favoured the Court finding that the plaintiff had an altered gait. He did not seek to persuade the Court that such a finding ought not be made.
I am satisfied that one of the permanent disabilities which the plaintiff has is an altered gait. This will require the provision and wearing of orthotics into the future. It also contributes to the pain and discomfort which I have earlier described at [79].

[12]

The Plaintiff's Current Position

As might be expected, as time has progressed since the accident, and the plaintiff's injuries and disabilities have stabilised, he has had the opportunity to adjust his outlook on life. In my assessment, he has taken a number of decisions, entirely commendably, to get on with living his life to the fullest extent possible even though he encounters difficulties, restrictions and pain in doing those activities.
The plaintiff agreed in cross-examination that he was able to live independently and did not require any aids or other assistance for the ordinary activities of daily life. He agreed that he was able to walk on even ground for at least 1km before his foot became really sore and generally had to stop after about 2km and rest. He agreed that he was able to drive a car for at least an hour or more without any pain or restriction. He was able to wash his car, but with difficulty. He chose to pay to have his car washed. He finds that after about an hour, the period of time it takes for him to wash his car - which includes, crouching, standing and stretching on tiptoes to reach the roof of his car - he experiences pain in his foot.
Whilst he can squat and crouch, he does have increased discomfort in his left foot if he does those things.
He attends a gym regularly but undertakes activities there which do not tend to cause him any pain in his foot. For example, rather than using the treadmill on a regular basis, he tends to cycle which does not cause him significant difficulty.
The plaintiff said that he was able to walk up stairs but found walking down stairs more difficult, and that he tended to hold the handrail to steady himself. He said, and I accept, that he finds it extremely difficult to walk on uneven surfaces but, of course, from time to time he does so. He accepted that he was able to walk on sand and soft surfaces, although he could only do so for relatively short distances.
Commencing in about July 2016, and continuing until the time of the hearing, the plaintiff has taken a number of overseas trips. Generally, these have been on organised and escorted tours and involved him walking for short distances on surfaces that were either soft, such as sand, or were uneven, such as steps leading up to natural viewing areas. As well, on one occasion, the plaintiff, whilst on a trip to New Zealand, elected to take a helicopter flight onto the Fox Glacier. There, he was able to walk around on the Glacier, consisting of hard ice or packed snow, for about 10 minutes. In order to enable him to do that, together with the other visitors to the Glacier, he was required to fit crampons to his shoes. He was asked these questions, and gave this evidence, about that event: "Q. You were able to use them [crampons] to walk around parts of the glacier during the time that you were there? A. Yes, with extreme difficulty. … Q. But you didn't stop and say to the tour guide, 'I can't go on anymore', did you? A. No, it was for less than 10 minutes so I just dealt with the pain. … Q. I'm asking you a slightly different question. You knew, didn't you, before you put the crampons on, that they would be likely to increase the pressure being applied to your foot and ankle on the left-hand side? A. I knew that walking on the uneven ground of the glacier was going to be really tough on my foot, but I wasn't sure what a crampon would feel like, no."
The plaintiff later described his visit to the Glacier as being a quick stop where the passengers were limited to where they could walk. He said he could walk around on the area permitted by the guide, but "with extreme difficulty".
He then gave this evidence: "Q. … You said, 'with extreme difficulty'. What I'm asking you in this next question is this, does that mean that because of the surface of the glacier as shown in the photographs taken, it was uneven and dangerous in parts? A. The ice was uneven, yes. Q. And there were crevasses in parts, weren't there? A. There was, yes. Q. So part of the difficulty was, and as you understood it, the reason why you were confined to particular areas, is that they were areas that the guide had selected as safe for the tour group to go on? A. I would imagine so, yes. … Q. But, again, they are difficulties which you choose to undertake to enjoy the experience. Do you agree? A. That's correct. I just didn't want to stay in my hotel room the whole … two days."
I accept the truthfulness of this evidence given by the plaintiff. I regard the description of this event as a demonstration that the plaintiff has determined to try and lead as normal a life as possible, and to put up with the pain and discomfort caused by his injuries. As a young man, his only other choice is to withdraw from these activities and live a much more restricted lifestyle. His choice to undertake these and other recreational activities is one which is to be commended, rather than one which is, perhaps implicitly, to be criticised. The evidence does not support a contention that he has overstated the extent of his pain or discomfort, or the extent of his injuries and disabilities.
The plaintiff agreed that on one tour to New Zealand, he had undertaken a bungee jump and had followed that up with a similar experience about a year later. It was put to him that the bungee jump which he had undertaken on the first occasion had not caused sufficient pain and discomfort in his left foot or ankle to have dissuaded him from undertaking another one. He agreed. There was then considerable evidence about the detail of whether a bungee jump would or would not place undue strain on the plaintiff's ankle and foot.
Having examined the photographs, and having listened to the cross‑examination, I have concluded that, contrary to the propositions being advanced by the defendant in cross-examination, the nature of the harnesses and rope restraints used by the plaintiff on the occasions when he went bungee jumping did not exert any stress or strain on his ankle or foot. I am satisfied that the harnesses were principally of a kind which meant that, to the extent that there was any strain, it was taken by the plaintiff's shoulders, waist and calves.
There was no reason for him, because of his injuries and disabilities, to refrain from bungee jumping.
The plaintiff said that he also went on a trip to South America which included walking up an inclined staircase to view Machu Picchu. He estimated that there were about 30 steps in total and between 100m-220m of walking to get to the point where a view could be had of Machu Picchu.
Whilst he accepted that there was a walk of about 20 minutes to get to the site of Machu Picchu, the plaintiff said that he undertook that across a fairly flat grassed surface and was able to do so comfortably. He noted that he, unlike some others in the group, had not hiked up to Machu Picchu, but had chosen to take the bus to reach the site.
These are, like the visit to the Fox Glacier described above, further examples of the plaintiff undertaking activities to enjoy his life notwithstanding any pain and discomfort which might be caused.
The plaintiff said, and I accept, that he chose to go on organised tours because he wanted to go to various places, and he did not want to travel by himself. He also saw it as an opportunity to go with people of a similar age with whom he could socialise. It was in the course of one of these trips that he came to know Ms Hannah Mudgway, which whom he formed a personal relationship at about the end of 2018. Together with Ms Mudgway, the plaintiff had taken a number of trips - both short weekend trips around Australia, interstate and also to various holiday locations overseas. Ms Mudgway said, and I accept, that she undertakes a range of activities with the plaintiff who is not the type of person to complain. Occasionally he would tell her if his foot is particularly bothering him. She finds that when they travel together, consideration is always given to the plaintiff's disability when planning and they will use public transport or taxies or the like when available.
I accept Ms Mudgway's evidence, which was not the subject of any cross‑examination.
In his second statement, the plaintiff gave this evidence, which I accept as being accurate, and reflecting the current state of his disability: "When sightseeing, I find it difficult to walk long distances so I plan out my itinerary carefully to avoid any activity that would require prolonged walking. I use taxis, Ubers, hire cars and public transport to reduce my walking distance. When I start to feel discomfort in my foot, I find somewhere to sit down and rest, such as a café, restaurant or park bench. For this reason, I book a lot of bus tours because this allows me to see all of the sights without having to walk around from place to place. When I'm not at work or travelling, I spend my time at home watching TV. … I am hesitant to engage in outdoor activities that will be make my foot sore, but I go to the gym approximately three to four times per week."
The plaintiff said he had difficulty cleaning his apartment by himself but will tend to break it up into smaller tasks to get by. He has been living, up until now, in rental accommodation and found that he could not manage to clean his apartment in a day for a rental inspection, and so obtained his mother's assistance.
In summary, I am well satisfied that the plaintiff has sustained a significant injury which has resulted in permanent disability with ongoing pain and discomfort.
He has difficulty with prolonged standing, walking and sitting. He is unable to run or participate in sport such as soccer or touch football which require running. He has difficulty walking over rough or uneven ground and can only do so for a short distance with intermittent pain. He has an altered gait and needs to use a handrail when descending stairs.
The plaintiff is at risk of degenerative changes leading to the prospect of mid‑tarsal fusion surgery at some time in the future.
The plaintiff is permanently unfit to work underground in his chosen career as a Mining Engineer. However, the plaintiff is medically capable of undertaking sedentary work such as a control room operator aboveground at a coal mine.
The plaintiff is capable of undertaking a range of recreational activities such as travel, sight-seeing and attending the gym, but makes adjustments to these activities to minimise pain and discomfort. On occasion where that is not possible, the plaintiff will undertake such activities for short periods and put up with the pain and discomfort.
As his injuries have reached their permanent state, there is no improvement envisaged in the plaintiff's ability to live his life as best he can.

[13]

Legal Principles

A contested issue in the proceedings was whether any sum by way of damages ought to be awarded for lost earning capacity for the future.
As at the date of the trial, it was agreed that, subject to the addition of an allowance in accordance with the principles described in Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 to the sum previously paid of $29,377, the plaintiff had no claim for past economic loss. That is because he had continued to be employed by South 32 and having regard to the application of the provisions of s 151I of the Act, no economic loss could be awarded in addition to the wages he had received.
The provisions of the Act also constrain the Court's capacity to award damages for any economic loss in the future in the following ways: 1. no damages can be awarded unless the injury has resulted in a degree of permanent impairment of at least 15%: s 151H(1); 2. the only damages which can be awarded are for loss "… due to the deprivation or impairment of earning capacity …": s 151G(1)(b); 3. in making an assessment, the Court is to disregard any amount by which the net weekly earnings of the plaintiff exceed the maximum weekly compensation payments: s 151I(1); and 4. the prescribed discount rate to be adopted is 5%: s 151J(2).
Although, prior to the hearing, the defendant had submitted that it was not open to the Court to award a sum by way of a "buffer" for damages for future economic loss, at the conclusion of the hearing, senior counsel for the defendant expressly accepted that the relevant statutory provisions did not preclude the Court from awarding damages by way of a buffer for future economic loss.
Giles JA in Penrith City Council v Parks [2004] NSWCA 201 at [5] described a buffer in this way: "… The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference can not be determined otherwise than by the broad approach of a buffer. …"
As is clear, before a buffer can be awarded, the plaintiff needs to prove the existence and value of any diminution of any earning capacity suffered as a consequence of the injury, and the future circumstances in which the limitation may come about.

[14]

Chosen Career Path

The plaintiff's case was that there was obvious significant permanent impairment in his physical capacity to undertake his chosen profession of being a Mining Engineer. The evidence clearly established the existence of such permanent physical impairment.
The plaintiff sought to establish that, for a number of reasons, that impairment was likely to be productive of a financial loss. He accepted that he could not point with certainty to any specific future time when such loss would occur because of the nature of his disability, given his relatively young age and the uncertainty of his future need for operative treatment. Nevertheless, he contended that his diminution in earning capacity would be productive of a financial loss at some time in the future, and that the award of a buffer was the appropriate method of proceeding.
As earlier described, the plaintiff was employed by South 32 at one of the Illawarra coal mines which it now owns. In his statement of 20 February 2020, the plaintiff addressed his concern about the security of his employment with South 32. He noted, and I accept, that his intended career path, but for the injury, was to progress to becoming a Mine Deputy who would be required to work underground, full-time. After obtaining experience as a Deputy, he anticipated progressing to an Under Manager whose role requires being underground for most shifts and above ground in part.
After working in these two roles, the plaintiff saw his career path as progressing to being in a more senior management role at a coal mine and, ultimately, to becoming the General Manager of a mine.
The plaintiff named seven individual mining engineering graduates, who had been contemporaries of his, and who had spent time as either or both a Deputy or Under Manager at the Appin Mine and the Dendrobium Mine. He named three other individuals who were working as Under Managers at the Appin Mine. These individuals were, like the plaintiff, mining engineering graduates who had started at BHP Billiton within a year of the plaintiff commencing his employment there. Some were still employed at South 32. Others had moved to different regions in Australia to continue their involvement in coal mining.
The plaintiff said, and I accept, that as he cannot work underground, he is unable to obtain the experience necessary to qualify as a Mine Deputy or as an Under Manager, with the consequence that his intended career path is no longer available to him.

[15]

Current Employment Security

Whilst I accept that, but for the injury, the plaintiff's career progression would have been as he described, and I have just adverted to, it is a different question as to whether given his injury, his employment with South 32 in the Appin Mine Control Room is secure. The plaintiff's case is that it is not secure because of the likely closure of the Appin Mine or the other Illawarra coal mines operated by South 32.
I am satisfied that at least the following facts have been proved, on the balance of probabilities: 1. the current coal lease at the Appin Mine expires in January 2034; 2. mining leases associated with the Appin Mine will expire on various dates respectively on 2023, 2033, 2035 and 2037; 3. the lease for the Dendrobium Mine has expired or else shortly will expire, and an extension of the lease has been refused. 4. In 2019, South 32 released a document entitled "Our Approach to Climate Change" which seemingly sets out South 32's plans for future operations. Whilst the document may not unfairly be described as self-congratulatory, tending to the platitudinous and replete with generality, it does convey a central message that South 32 is undergoing a significant transition program to manage risks related to climate change. It notes that as a part of this transition, it has divested itself of coal operations in South Africa, and it has conducted and completed "decarbonisation concept studies" of its coal operations in the Illawarra. The document also noted that the Illawarra coal operations were a significant contributor to the total of Scope 1 emissions of South 32's operations. At the least, this document suggests that in order for the Illawarra coal mines to continue, significant changes to their operations will be needed; 5. since 2016 there have been a number of changes to mining operations at Appin. In early 2020, South 32 announced that the mine was to be reduced from operating two long‑walls to one with effect from July 2023, which change has led to significant staff redundancies; and 6. the Appin Mine is recognised as having high overhead costs because of a number of features - it has three surface sites and three mine entrances which need to be maintained; it emits a large quantity of methane gas which necessitates two methane gas drainage plans; it produces and uses a large volume of water which requires two water treatment plants; and the coal produced needs to be trucked to a washing plant and then on to Port Kembla for export.
These facts suggest that mining operations at the Appin Mine are by no means guaranteed into the future, and certainly not for the plaintiff's anticipated working life.
The defendant called Mr Manz, who had been the General Manager of the Appin Mine for a period of two years from June 2018. Mr Manz has since left the employ of South 32. He was asked about a presentation which he had made to various groups of staff in 2020 about South 32's plans for the Appin Mine. His evidence was that he told staff that: 1. the operations at the Appin Mine would change from a two-long wall and seven development unit operation to a single long wall and four development unit operation; 2. this would necessarily result in a reduction of coal output; 3. South 32 were looking to reduce the overall headcount of workers involved in the mine operations, which headcount loss would primarily be borne by contractors; 4. a single long-wall operation may produce more "sustainable cash for the business" because of a significant reduction in labour costs, and machinery costs as well as capital savings, with the result that the unit cost of production of coal was reduced; and 5. whilst Appin was a mine with a 25 year+ mine life, without significant changes to its operations, it was a marginal business generating only a small amount of positive cash flow, hence the need to significantly change the operation.
Mr Manz said in evidence that the reduction in headcount with the new plan would not involve a reduction in the number of control room operators.
I formed the view during Mr Manz's evidence that he genuinely held the view which he was telling the mine staff, that the proposed 2023 changes would create a more economically viable operation at the Appin Mine. He was personally persuaded by the plan and its prospect of success and sought to convey that message to the staff at the Appin Mine. But, his view was a prediction which necessarily included uncertainties - such as the price paid for coal remaining at a level which permitted profitable mining operations, that demand for coal from the Illawarra mines of South 32 remained (at least) at the existing levels, that any change brought about by South 32 dealing with climate change and its customers also dealing with climate change would have no adverse effect on the Illawarra mining operations, and further that South 32 management would not, after his departure, make any significant change to the reform plans.
The facts which I have found above, together with the uncertainties referred to, which together may have a possible adverse effect on the Illawarra mining operations lead me to conclude that I am not satisfied on the probabilities that the Appin Mine will continue to operate past the end of the existing lease in 2034, and further that it may well cease operations before then because it is not economically viable. I will factor these possibilities into the consideration of the plaintiff's future work path.
In this respect I note that the defendant did not lead any evidence either from its staff, or any staff at South 32, that regardless of the fate of the mining operations at Appin, or in the Illawarra generally, the plaintiff was guaranteed employment into the future.

[16]

Assessment

The plaintiff submitted that in assessing his future loss, the Court should proceed in accordance with the authority of Medlin v Statement Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.
I note that McHugh J at p.16 cautioned against an approach to the assessment of damages for lost earning capacity, which he described as the "natural tendency… to compare the plaintiff's pre-accident and post-accident earnings" and " … to assume that if pre-accident and post-accident income are comparable, no loss has occurred".
McHugh J described (at p.17) the correct approach as being "… whether, as a result of the accident, the plaintiff [has] been rendered less capable of earning income". His Honour went on to say (at p.18) that damages can be awarded for loss of earning capacity, however, only to the extent that the loss produces, or might produce financial loss.
Both parties drew the Court's attention to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 where, at p.642, Deane, Gaudron and McHugh JJ said: "… in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. … Thus the court assesses the degree of probability that an event would have occurred or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. … The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place."
The plaintiff's claim for future lost earning capacity is set out in the Third Amended Statement of Particulars dated 3 March 2020.
The plaintiff submitted that his employment at the Appin Mine has an uncertain future and that it will, on the probabilities, cease by about July 2023.
It was the plaintiff's case that upon ceasing that employment, the plaintiff would have real difficulty in obtaining employment in the mining engineering profession. Accordingly, if his employment ceases, he will need to retrain so as to ensure a comparable income in a different field or, alternatively, without retraining his future income is likely to be significantly diminished.
The plaintiff's ability to exploit his future earning capacity is necessarily one of uncertainty. Any assessment is made by taking into account those uncertainties and evaluating, as best as is possible, what is the plaintiff's likely future course.
The plaintiff chose a career as a Mining Engineer with the intention of working in the coal mining industry. The effects of climate change, and other influences on the security of his employment as a participant in that industry, are not caused by or related to his injuries and disabilities. They would have existed in any event. However, in the event of a downturn in the industry, or else the closure of one or more of the Illawarra coal mines, then, because of his injuries and disabilities, when the plaintiff comes to compete on the open labour market for other positions as a Mining Engineer, he will be significantly disadvantaged compared to a Mining Engineer of his background who is not injured. He is likely to take longer to obtain employment and the range of roles which are available is likely to be much smaller compared with an uninjured comparable colleague. This will impact on the exploitation of his future earning capacity.
As well, given his chosen career is that of mining engineering, which is significantly adversely impacted by his injuries and disabilities, in order to maximise his future earning capacity, I think that it is more probable than not that the plaintiff will have to re-train for, and find employment in, a different field of endeavour where his career progression is not adversely affected by his injuries and disabilities.
In considering his possible future course, I have had regard to the range of possible future employment opportunities described in the evidence of Mr Craig Martin and Mr Sebastian Bass whose expert evidence related to an assessment of vocational possibilities, including any retraining which be open to the plaintiff. I do not need to resolve any differences between them because in the assessment of future possibilities, I have regarded those differences as representing their different but available views in an area of discourse which is beset with uncertainty.
The shortest period for retraining would be for the plaintiff to remain in the engineering profession but transfer to another discipline such as may be found in the civil and structural engineering fields of speciality. Even then, such a transfer would probably involve some inhibition on the exercise of that profession caused by his ongoing disabilities because the nature of the work as an engineer in civil and structural engineering fields frequently requires attendance at construction sites which would have the attendant difficulties for the plaintiff in walking on rough or uneven ground. If he did retrain into another engineering discipline, then the retraining period is likely to be in the order of one to two years on a full-time basis at a tertiary institution.
On the other hand, any retraining outside of the engineering discipline, which would provide less exposure to the difficulties created by his injuries in participating in work in an outside environment on rough or uneven ground, would be likely to take longer - in the order of three years or so.
I am satisfied on the balance of probabilities that the plaintiff will require surgery to fuse the tarsal bones in his mid-foot at some time in the future. This will require him to be off work completely for the period of the operation and for recuperation and recovery. Whilst the evidence about the period of recuperation is not readily apparent, I estimate that the recovery period until his return to work would be in the order of three months or so. This is likely to be followed up by a gradual return to work.
The plaintiff is a young man with a lengthy career in front of him. He is now 33 years old. He has a working life of at least another 34 years to age 67 - the conventional retiring age. Of course, he may choose to work for a longer period.
Any estimate of future loss on a weekly basis is capped at $2,242 - being the figure fixed by s 151I of the Act. The plaintiff accepts that the Court must disregard any amount above that weekly figure when assessing any future economic loss. This means that the maximum loss which can be recovered in any given year is $116,584. Any loss will not occur at a time capable of precise prediction. Any interruption to the plaintiff's working life may not occur for some years into the future, and then at differing intervals.
All of this means that it is appropriate to award a sum by way of a buffer to compensate for the plaintiff's lost earning capacity. A reasonable estimate is that for all of the preceding reasons discussed at [117]-[152] above, the plaintiff's future economic capacity will be interrupted for about 15% of his future working period during which he would incur as a reasonable estimate an annual loss of about $100,000. I note that this figure allows for some time off work during times that the plaintiff is unable to obtain employment on a full-time basis or else during return-to-work periods or other times of recuperation.
Without considering on a mathematical basis any question of net present value, because the time when the loss will occur cannot be predicted, or even a discount for deferred damage, a complete loss of income for five years (a little less than 15%) would suggest a future diminution of the plaintiff's earning capacity of $500,000. This would need to be discounted by 15% (the conventional figure) to reflect the adverse vicissitudes of life, resulting in a sum of $425,000.
Taking into account, as well, uncertainties about when such a loss would come about and any allowance for discovery to a net present value, and any intangible but nevertheless real disadvantage to the plaintiff in competing on the open labour market, it seems to me that a reasonable sum by way of a buffer for the value of the plaintiff's lost future earning capacity is $350,000.
As from 1 July 2023, the Superannuation Guarantee Charge will rise to 11%. It is anticipated that it will rise again over the course of time. Given this, an appropriate figure to allow by way of a calculation for lost superannuation relating to the plaintiff's lost future earning capacity over time is 12%, rather than the 14.4% claimed by the plaintiff. Any allowance for superannuation is in addition to the buffer sum: see Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284 at [11]. Accordingly, I allow the sum of $42,000 to represent the plaintiff's lost superannuation in the future.

[18]

Future Treatment Costs and Domestic Assistance

As I have earlier found, the plaintiff will require surgery at some time in the future - although precisely when cannot be determined. Dr Marsh whose report was tendered by the defendant, estimated the cost of future surgery would be in the order of $15,000 - the entirety of which the plaintiff claims. In an estimate made at an earlier date, Dr Cadden assessed the cost of surgery at $10,000. The later estimate is likely to be more reliable. Allowing for the fact that the surgery may not take place for some years into the future, I assess an appropriate allowance for this head of damage to be $7,500.
The plaintiff will incur some additional general practitioner visits because of the deterioration in his foot and the need for that deterioration to be monitored and for the taking of advice about surgery. He will need to take some medication as his injuries and disabilities deteriorate and will continue to need to see his podiatrist for treatment and the making and fitting of orthotics. These visits and needs are likely to be intermittent. In total the plaintiff claims a little over $56,000 for these items in the future. The defendant submitted that a sum which is no more than $6,500 is appropriate.
These figures advanced by each party seem to me to represent extreme positions at each end of the possibilities of the costs that may, or may not, be incurred. In my view, on a global estimate basis, an appropriate allowance is $30,000 to compensate for these anticipated future costs.
The occupational therapists in their joint report found little, if any, common ground - they only agreed on rates for some services. Broadly speaking, Ms Walcot (who was called by the defendant) saw very little need for the plaintiff to be entitled to recompense for services which would need to be provided in the future and which might have been needed in the past.
Ms Lucas (who was called for the plaintiff) saw a much higher need for the plaintiff for assistance - particularly with domestic tasks.
An example of Ms Walcot's approach to the issue of what the reasonable needs of the plaintiff were can be found in the joint report at Exhibit O, which recorded the following: "Ms Walcot considers that, as the plaintiff is cognizant of his restrictions, he should choose accommodation appropriate to his physical capacity when purchasing a home."
The report continued: "Ms Walcot continues to assert that the plaintiff, should he wish to purchase a property, would benefit from considering his functional restrictions of choosing accommodation that is within his physical capabilities."
In cross‑examination, Ms Walcot said this: "Q. Just assume for the moment that the plaintiff will move to a three bedroom home with a back and front yard, and he may do so in about five years' time. Just assume that. A. OK. Q. Do you accept he will have a greater need for domestic services than he presently has? A. It - it is possible that he would depending on the … slope of the land, the size of the yard, the access between any storage locations for equipment. There is the possibility that that would occur, but however, … I would consider that Mr McGoldrick would … need to consider his functional abilities before he purchases a property. HIS HONOUR: Q. Do you mean by that, Ms Walcot, that … he should just buy a smaller property that doesn't have a front and back yard? … A. Yes. Sorry. What I mean, your Honour, is that if someone was to purchase a block of land that was level, for example, and not - not one of these big battle-axe blocks, then it could be quite possible that he would be able to do mowing and whipper snipping by using a - a battery‑operated light-weight mower and by pacing his tasks. There are mowers out there that operate like those vacuum cleaners that operate by remote control. There are mowers like that which negate the need for additional assistance. However, if he was to buy a property which was on a slope - was on a very sloped parcel of land that had, possibly, two tiers, then yes, he would have difficulty mowing those areas and that would increase the need for attendance care assistance. So - but assuming which one he will buy and whether that leads to an increased need for attendant care is - it's really hard to predict."
In short, what Ms Walcot was suggesting was an approach which does not accord with my view of the law relating to awards of damages. Ms Walcott seemed to be suggesting, and this is an approach which, in my view, underlay her expert opinion, that even though the plaintiff had disabilities which were not caused by him, but were caused in compensable circumstances, it was not reasonable for the plaintiff to purchase a property without regard to his injuries and disabilities. Rather, it seemed to me that Ms Walcot was suggesting that the reasonable approach for the plaintiff was to purchase a property which was limited, or else different from, that which he would have, uninjured, purchased to take account of his disabilities. On that basis, Ms Walcot had formed the view that he was only entitled to a little, if any, domestic assistance for the future. I reject this approach.
In my view, where a plaintiff is injured and the plaintiff's injuries and disabilities produce a need for assistance in a domestic context, then the plaintiff is entitled to be compensated for the cost of obtaining that assistance in the future. It is not reasonable to expect that a plaintiff would diminish their own lifestyle ambitions, which were in any event reasonable, to take account of their disabilities. Rather, the proper approach is to provide the cost of the necessary assistance to the plaintiff to allow him to enjoy what would otherwise be a reasonable future life.
Ms Walcot also formed her views by relying on family members or cohabitants to undertake work which would otherwise fall to the plaintiff rather than paid assistance. A further example of this is to be found in this exchange: "Q. If he is restricted now in bathroom and floor cleaning in his two bedroom unit, he is likely to require a greater level of care with, or assistance with, those activities in a three bedroom house, isn't he? A. I disagree on the … basis of the fact that, at this point in time, he is able to perform those activities. So, in moving to a three bedroom house, … that he would like to purchase… for his wife and children, then you have to take into account the fact that there may be someone else who is able to - that he might be able to perform an equitable portion of bathroom cleaning tasks using equipment. Even if he wasn't living with somebody and was in a three bedroom house, then the necessity of cleaning another bathroom decreases because nobody is using it. … "
Again, in my view, this mistakes the proper approach for a Court to take.
On all matters relating to the contest of the occupational therapists' evidence, I prefer the approach of, and evidence of, Ms Lucas.
As at the date of her report of 18 March 2021, Ms Lucas assessed the value of past domestic and handyman assistance required at little under $18,000.
No doubt that need for assistance has continued since then. However, I think that Ms Lucas may have somewhat overestimated the need in the past. Having regard to the plaintiff's evidence about what he has done and what he can do, I would allow a sum of $15,000 to represent the value of past domestic assistance.
In the future, Ms Lucas has allowed for a sum a little over $24,000 for the next five years while the plaintiff remains in his current two bedroom apartment, thereafter a sum of a little under $200,000 on the assumption that the plaintiff will move to a larger three bedroom home, and then from the age of 60 a sum of a little under $80,000 for the increased needs of the plaintiff as he ages. In total this comes to a little over $300,000. These sums do not involve the use of any discount rate.
As with any task of predicting the future, there are uncertainties. These include when or whether the plaintiff will move to a larger premises. They include what the nature of those premises may be. They include when the plaintiff may have his fusion surgery. The only certainty is that whatever be these possibilities, the plaintiff's injuries and disabilities give rise to a need for domestic assistance for which the plaintiff is entitled to be compensated.
I accept that the sum of a little over $300,000 is a reasonable sum if the estimates and predictions made by Ms Lucas come to pass. However, there is no certainty that they will come to pass as she suggests. In my view, an appropriate allowance must discount what Ms Lucas calculates to take account of these variabilities and uncertainties.
In my assessment, the appropriate sum for this head of damages, namely future domestic assistance, is $200,000.
There is a need to allow a sum for equipment or home modifications. A reasonable sum for this is $5,000.

McGoldrick v Dendrobium Coal Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Cases Cited (8)

Cited By (3)