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[2010] NSWDC 28
District Court of NSW
2009-06-11
Mr J, Mr JJ
Original judgment source is linked above.
For the reasons I have outlined in respect of my analysis of the claim for past domestic care, I do not accept the estimate of the plaintiff concerning his need for future domestic care. The basis for this conclusion are the antecedent findings as to credit that I have already recorded. Similarly, for the reasons I have already outlined in respect of the claim for past domestic care, I consider that the undifferentiated description by Mrs McLennan, concerning the plaintiff's needs for domestic care cannot be accepted at face value because that claim has inter-mingled within it, items of claim that are not recoverable for the reasons already stated in the analysis of the claim for past care.
In weighing the appropriate allowance of hours for future domestic assistance I have had regard to the opinion of Ms Barbuto who has suggested the provision of 1.25 hours per week of care for dishwashing, bringing clothes in from the clothesline at times when the plaintiff feels unwell. In my view that report provides an unacceptable estimate of the plaintiff's needs. I take this view for a number of reasons.
First, the estimate of 1.25 hours per week is well below what Dr Ellis considers to be reasonable. Secondly, I consider the medical views of Dr Ellis, as adjusted to 6 hours per week, to be more informative than the occupational therapy views of Ms Barbuto. Thirdly, I consider that Ms Barbuto's views have been unduly influenced by pejorative matters she has selectively cited from the plaintiff's medical records and as such, I consider that her opinion is adversely affected by unfairly stated credit based conclusions which the plaintiff had no opportunity to deal with. A prime example of this issue is Ms Barbuto's attempt to highlight her views on inconsistencies in the historical data. One such matter was the irrelevant reference to the opinion of a decades old innuendo from the plaintiff's military file suggesting that on a particular occasion it was thought he might have been "swinging the lead" when in fact he had quite a serious back injury : Mason v Demasi; Container Terminals Australia Ltd v Huseyin. Fourthly, I consider Ms Barbuto's estimate of the plaintiff's need for domestic assistance to be manifestly inadequate having regard to the tasks she described in her allowance, whilst at the same time not providing a balanced discussion as to why she made no time allowances for the matters claimed by the plaintiff to base a need for assistance.
For the foregoing reasons, I reject the opinions of Ms Barbuto in this case as having no probative value to the issue calling for decision.
Accordingly, based on the opinion of Dr Ellis and aspects of the opinion of Ms Laverack, as well as aspects of the evidence of the plaintiff, I consider that the proper amount for damages for future domestic assistance to be an indefinite allowance of 6 hours per week over the remainder of the plaintiff's probable life span, at the rate of $23.48 per hour, which on the 5 per cent multiplier tables (x 737.8), yields an amount of $103,941.
I consider that this amount has to be discounted on account of the plaintiff's chronic pre-existing back condition. There are some competing considerations that need to be weighed in this regard.
On the one hand the plaintiff had a chronic back condition that has limited and will continue to limit his activities. The inference is open that as he ages, the restrictions caused by his back condition will not lessen, but rather, will increase, thereby further limiting his ability to undertake physically active tasks around the home, including aspects of self care.
On the other hand, the injury in question has caused the plaintiff to become more sedentary, put on more weight and thereby contribute to his back problem. In that sense, the effects of the injury, being a material contributing cause of ongoing back pain, arguably, should not mandate a discount on future damages. I consider that position to be unrealistic as the plaintiff had a serious pre-existing back problem which had the ever-present potential to cause him to suffer significant problems, including in association with activity.
Having regard to the plaintiff's pre-existing back condition, which undoubtedly affects his ability to perform a full range of physically dextrous activities and duties, and given the obvious difficulty in seeking an accurate differentiation of the injury related need for domestic assistance, as distinct from the pre-existing incapacity and the potential for that pre-existing capacity to either intermittently restrict or to progressively further restrict the plaintiff's domestic activities, I consider that a greater than usual discount for possible adverse vicissitudes is required.
In these circumstances, I consider the appropriate discount on account of possible adverse vicissitudes to be a factor of 25 per cent. Accordingly, applying a discount of 25 per cent to the sum of $103,941, this yields the amount of $77,955. I therefore assess the plaintiff's claim for damages for future domestic assistance in the sum of $77,955.
The plaintiff makes a claim of $3000 per annum to cover the cost of future out-of-pocket expenses for his probable future treatment needs over the remainder of his probable life span. The submitted projection of this sum over the plaintiff's remaining lifespan is the equivalent to the amount of $48,103.
The sum of $3000 per annum is the equivalent of $57.69 per week. The projection of $57.69 per week at 5 per cent over 24 years (x 737.8) yields the adjusted submission of the plaintiff for future-out-of-pocket expenses to be in the amount of $42,563.
The plaintiff submitted that the amount claimed is justified based on the following components from within the evidence of Dr Lorentz: (a) General practitioner consultations /assessments every two months at $50 per visit. This is the equivalent of $300 per annum;
(b) Neurological assessments twice a year at $200 per assessment. This is the equivalent of $400 per annum;
(c) Medications at $28 per month. This is the equivalent of $336 per annum;
(d) Botulinum toxin treatment 3-4 times per annum at $600 per treatment. This is the equivalent of between $1800 and $2400 per annum;
(e) The total of these amounts is in the range $2836 to $3436 per annum or between $54.53 per week to $66.07 per week.
This foregoing analysis is broadly equivalent to $3000 per annum. The plaintiff points to the 7 March 2009 report of Dr Ellis who has estimated the plaintiff's ongoing treatment costs to be approximately $3000 per annum. It has also been submitted that the report of Dr Maguire suggests the need for counselling for depression to assist with adjustment to the disability of his headaches : Exhibit "10". The plaintiff submits that an additional allowance should be made on account of this factor. This seems a reasonable approach since Dr Tablante's letter of 30 March 2008 to Dr Granot indicated the plaintiff was suffering from reactive depression, as did his letter dated 8 February 2007, indicating the plaintiff's problem with depression was not an isolated event: Exhibit "Y" and Exhibit "A", page 7.
The defendant has submitted that the plaintiff should not receive an award for future treatment expenses as the plaintiff claims to have derived no benefit from such treatment. The defendant also points to the fact that the plaintiff has an ongoing entitlement to have his treatment expenses met by virtue of his workers' compensation claim : s 60A of the Workers' Compensation Act 1987. The defendant also points to the fact that the actual cost of the plaintiff's treatment to date has been significantly less than the claimed $3000 per annum.
I consider the defendant's submission on the issue of future treatment expenses to be flawed for several reasons.
First, the fact that the plaintiff has not derived much benefit from past attempts at treatment is not to the point. The question for analysis is the extent and likely cost of the plaintiff's reasonable need for treatment. The answer to that question is to be found in the analysis of the medical evidence, in conjunction with the plaintiff's duty to mitigate by seeking treatment. In my view this provides the justification for an award of damages to meet the cost of such treatment.
Secondly, the submission to the effect that the plaintiff has workers' compensation rights, including the right to have his reasonable treatment expenses met, does not enable a third party tortfeasor to escape liability for damages. Section 60A of the WC Act does not in my view exclude such sums for a damages award under the MAC Act.
Thirdly, I consider that when assessing an entitlement to damages for future treatment it is inappropriate to make a comparison between the recommended costs for future treatment and the extent of treatment received to date. These are entirely separate questions and the first does not properly provide the basis for estimating the plaintiff's future need and entitlement for treatment. The comparison the defendant sought to make is not equivalent. The issue under consideration here is the reasonable and probable cost of the plaintiff's future treatment needs, not an assessment of what those treatment needs should be, based on the cost of any past incidence of treatment actually provided.
The defendant has submitted that a general lump sum allowance of $5000 should be adequate compensation for the plaintiff's future treatment needs. I regard that sum as being manifestly inadequate having regard to the opinions on future treatment needs as expressed by Dr Lorentz, Dr Ellis and Dr Maguire, whom I accept.
I consider the combined formulations by Dr Lorentz, Dr Ellis and Dr Maguire to be generally reasonable, with one exception.
The plaintiff makes a claim for the cost of Botulinum toxin treatment of migraines by injection as was suggested by Dr Lorentz. Without intending any criticism whatsoever of Dr Lorentz, the plaintiff has left the evidence on this issue in an entirely speculative state. Dr Lorentz put the suggestion for this treatment forward on the basis that "there is some evidence" it "may be beneficial". Dr Lorentz stated that the plaintiff "may have to undergo special treatment for his headaches". Again, without criticism of Dr Lorentz, this evidence does not satisfy the requisite test for proof of the need for such expenditure. Dr Lorentz indicated the cost of such treatment would be about $2400 per annum. This is the equivalent of $46.15 per week or the projected amount of $33,311. Since the recommendation by Dr Lorentz for Botulinum injection treatment was not followed up by further written or oral evidence to explain or justify the amount claimed, as it easily could have been, on the state in which the evidence has been left I do not accept that component of the claim.
On this analysis I consider that the appropriate sum to be allowed for the plaintiff's reasonable future treatment needs should be an amount of $19.92 per week. The projection of $19.92 per week at 5 per cent over 24 years (x 737.8) yields an amount of $14,696. To this sum I add an allowance of $6000 for the arthroscopic subacromial decompressive acromioplasty procedure which Dr Ellis stated was likely to be required because of the evidence of traumatic capsulitis affecting the plaintiff's right shoulder. I therefore assess the plaintiff's entitlement to damages for future out-of-pocket expenses in the sum of $20,696.
The plaintiff makes a claim for out-of-pocket expenses in the amount of $11,223.80.
These claimed expenses are documented and have already been paid by the workers' compensation insurer and by Medicare. The defendant agrees with the arithmetic total of these claimed expenses but does not concede that the claimed expenses have been reasonably incurred as a consequence of any injuries for which the plaintiff claims. Alternatively, the defendant conceded that any award for out-of-pocket expenses should be limited to $617.70 which related to the time the plaintiff started his stint of work with Woolworths in the months following his injury.
The plaintiff submits that the reasoning behind the defendant's stance concerning the documented expenses is difficult to discern as the defendant has called no evidence concerning challenges to specific items of the claimed expenditure that would provide a rational basis for disputing particular items of the plaintiff's claim for out-of-pocket expenses. However, that is not the test. It is for the plaintiff to prove the quantum of his claim.
In this regard, the plaintiff points to the evidence of Associate Professor Spira acknowledging that the treatment the plaintiff has received seems to have been reasonable. I infer from that evidence, and the fact that payments have been made by authorities that are accountable for their expenses, namely a workers' compensation insurer and Medicare, that the amounts claimed have been netted before payment and assessed as having been properly incurred. I therefore accept the plaintiff's submission on the claim for out-of-pocket-expenses paid by the workers' compensation insurer and by Medicare, subject to an adjustment to deduct an identified amount of $210, in respect of a non-attendance fee at a medical examination. This reveals a reduced amount of $11,183.92.
In addition to this amount, the plaintiff makes a claim for the cost of pharmaceutical expenses he has incurred over the years. This component of the claim is undocumented. That of itself is not necessarily a bar to a claim of this nature being made. However, the state in which the evidence has been left does not enable me to reasonably determine whether the plaintiff has actually incurred such additional amounts. The evidence does not disclose whether the plaintiff claims for gap payments for pharmaceutical costs not paid by an insurer, or for amounts not covered by a pharmaceutical safety net scheme.
In some cases evidence is called identifying the nature of such additional expenditure in order to reasonably base an estimate of the probable cost of such items. In this case the plaintiff seeks an inference in order to base an estimate. In view of the credit findings I have made, without some form of reliable corroborative evidence, that is other than from the plaintiff or Mrs McLennan, from which I could reasonably draw the inference sought, I am not prepared to accept this additional aspect of the plaintiff's claim.
I therefore assess the plaintiff's claim for out-of-pocket expenses in the sum of $11,183.92.
My assessment of the plaintiff's entitlement to damages is summarised as follows:
(a) Past loss of earnings $258,000 (b) Fox v Wood $61,276 (c) Future loss of earning capacity $145,845 (d) Past loss of superannuation benefits $28,380 (e) Future loss of superannuation benefits $16,042 (f) Past domestic assistance $24,230 (g) Future domestic assistance $77,955 (h) Future out-of-pocket expenses $20,696 (i) Past out-of-pocket expenses $11,183 Total $643,607
I have determined the contentious liability issues in the plaintiff's favour. I have assessed the plaintiff's entitlement to damages in the sum of $643,607. The plaintiff is entitled to a verdict and judgment in his favour in the assessed amount, together with an order for costs
I make the following orders: (a) Verdict and judgment for the plaintiff in the sum of $643,607;
(b) The defendant is to pay the plaintiff's costs on the ordinary basis unless otherwise ordered;
(d) Liberty to apply on 7 days notice if further orders are required.
WEEKLY HOURLY PERIOD WEEKS s.128(4) s.128(4) AMOUNT FOR 6 HOURS RATE RATE
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McLennan
The Nominal Defendant
CITATION: McLennan v The Nominal Defendant [2010] NSWDC 28
Angel v Hawkesbury City Council [2008] NSWCA 130 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Donoghue v St Luke's Hospital Ltd [1969] 2 NSWR 647 Flounders v Millar [2007] NSWCA 238 Harrison v Nominal Defendant (1975) ALR 680 Luxton v Vines [1952] HCA 19 CASES CITED: Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117 Mason v Demasi [2009] NSWCA 227 Nominal Defendant v Smith (1998) 28 MVR 165 Nominal Defendant v Swift [2007] NSWCA 56 Oztan v Nominal Defendant (1995) 23 MVR 259 Sretenovic v Reed [2009] NSWCA 280 Strinic v Singh [2009] NSWCA 15
(1998) 28 MVR 165
(1995) 23 MVR 259
(1952) 85 CLR 352