Noferi v Smithers; Lokys v Smithers; Smithers v Lokys & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20620/00 NOFERI v SMITHERS 20672/00 LOKYS v SMITHERS 20830/01 SMITHERS v LOKYS & ANOR

JUDGMENT 1 NEWMAN AJ: These are claims for personal injuries arising out of an accident involving a motor boat which occurred on 12 July 1997. Both the plaintiffs were swimming between two islands which constitute part of a group of islands known as the five islands which stand close to the New South Wales coast off Port Kembla. 2 At the time of the accident the two plaintiffs were swimming between two islands known as Rocky and Big Islands respectively. They were struck by a motor boat driven by the defendant and both plaintiffs suffered severe injuries. 3 The defendant had instituted a limitation suit (which was transferred from the Federal Court to this court) claiming that his liability for damages arising from the subject accident were to be limited pursuant to the Limitation of Liability for Maritime Claims Act 1989 (Cth). That Act enables the Convention on Limitation of Liability for Maritime Claims, 1976 to become part of the law of Australia including New South Wales. Pursuant to Article 2 of the Convention claims in respect of personal injury occurring in direct connection of the operation of a ship and the consequential loss resulting therefrom are subject to a limitation of liability. Article 6 of the Convention limits the liability in respect of claims for personal injury to what are called units of account being 333,000 of those units for a ship the size of the defendant's motor boat. 4 In the event, after five days hearing, the question of liability and the amount of money constituting a fund set up under Article 11 of the relevant convention were agreed by the parties. Effectively, the defendant admitted liability for negligence and the plaintiffs agreed that the sum of $975,000 was the amount constituting the fund under Article 11. This means that the remaining task of the court is to assess the damages which should be awarded to the two plaintiffs and having done so then make an apportionment pro rata so that the plaintiffs will receive an award limited by the gross amount of the fund but bearing a direct relationship to the proportion between the two assessments of damage. 5 The upshot of this procedure is that both plaintiffs, in terms of damages awarded according to law by this court, will be substantially under-compensated for the serious injuries which they both suffered. This fact will be made starkly evident by a comparison between the assessment of damage which I have arrived at and the amounts which both plaintiffs will receive having regard to the amount of the available fund. I shall deal with the assessment of damages separately.

David James Noferi 6 After being struck by the boat David Noferi was rendered unconscious. His brother who was a part of the party of three swimming at the time managed to keep him and indeed the other plaintiff, John Lokys, afloat. The defendant came back to them in his boat and the two injured plaintiffs were taken ashore. 7 David Noferi was then transferred to Wollongong Hospital and having received emergency treatment there was later that evening was transferred to the St George Hospital for the principal purpose of undergoing neurosurgery. 8 There was no dispute that David Noferi had suffered the following injuries in the accident: - (a) Comminuted compound depressed skull fracture.

(b) Dural laceration and penetration brain injury with cortical contusion.

(f) Extensive haematoma in the right posterior abdominal wall with extension into the retroperitoneal tissues in the right mid abdomen.

(g) Fracture of the right transverse of the lower lumbar spine.

(k) Consolidation of the lungs caused by aspiration.

(m) Shock. 9 The neurosurgery carried out by Dr Mark Davies consisted of a craniectomy, brain debridement and dural closure. He remained an inpatient as St George Hospital until 24 July 1997 when he was transferred to he Lawrence Hargrave Hospital in the Illawarra region under the care of a Dr Bashford. The program undertaken by Dr Bashford was of a rehabilitative nature. During his time at Lawrence Hargrave Hospital the plaintiff not only received rehabilitative treatment but also therapeutic care. After spending some ten days Lawrence Hargrave Hospital the plaintiff returned home to continue his convalescence. 10 When discharged from St George Hospital it was necessary for a significant time to elapse between his original surgery and the repair of the damage to his skull flowing from the accident. To this end he was readmitted to St George Hospital on 10 February 1998 and on 11 February 1998 Dr Davies performed a procedure known as cranioplasty. This procedure involved the opening of his old skull laceration and extended so that the margins of his skull defects could be exposed with dissection of the scalp away from the underlying dura matter. An acrylic cranioplasty was then fashioned and secured to his surrounding skull. Happily, this procedure was successful. 11 The assessment and management of the plaintiff over a period spanning 12 July 1997 to 6 April 1998 concluded as follows: "David's longstanding disabilities may remain purely cognitive. At the time I understand David saw Dr Guy Bashford (Specialist Physician in Rehabilitation Medicine) last on 16/4/98. Dr Bashford reports on a neuropsychological assessment which demonstrated good executive and memory function but definite visuo-spacial defect. His visuo-spacial performance was at the 25th percentile at the time whereas on verbal functioning he performed at the 75th percentile. Dr Bashford commented that this was a significant factor in his difficulties at the time completing 2 subjects of his university degree. I have not had any further long term follow up from David or Dr Bashford and am unaware of further neuropsychological assessment. David could expect ongoing recovery, possibly as late as the end of 1998. I am not aware whether David has finished his Engineering Degree. In the absence of any ongoing seizure activity David does not have any restrictions in terms of his work capacity. The injuries have obviously had a significant impact on his studies and it is possible that even if they have not prevented him finishing his degree that ongoing mild cognitive deficits may blunt his premorbid intellectual function and prevent him from performing at his true potential. Follow up neuropsychological assessments may give a clearer picture of his ongoing recovery. Should seizure activity occur in the future (small risk) this will prevent him from working at heights, driving for extended periods of time, operating heavy machinery etc., and require him to take regular anticonvulsant medications. He would be prevented from engaging in activities such as sky diving, scuba diving, abseiling etc. Even though David's cranioplasty is sufficient to withstand the normal rigors of life he has been advised to avoid contact sports." 12 Dr Davies' observation relating to the plaintiff's long-term disabilities being likely to be of a cognitive nature received strong support from the eminent neuropsychologist, Peter Rawling. Having carried out extensive psychometric testing and a clinical neuropsychological assessment Mr Rawling concluded as follows: "In summary, Mr Noferi suffered a primary or direct injury to the right parietal lobe. There had been a substantial easing of the visuospatial deficits referrable to this damage but he continued to complain of right-sided incoordination, weakness and sensory disturbance. He seemed also likely to have suffered secondary brain damage due either to the hypoxia and/or hypothermia apparent on presentation to hospital immediately following the injury. The deterioration in memory and the slowed rate of information processing was consistent with such damage. He was depressed but depression could not explain the pattern of scores seen on current testing. As more than two years had now passed since the accident, these deficits could now, sadly, be assumed to be permanent. The brain injury and associated neurological and cognitive deficits have had a very disruptive effect on his life, disrupting his studies, work, recreational and social life and leaving him depressed and lacking in confidence." 13 To like effect are the views of Dr Guy Bashford, a specialist physician in rehabilitation medicine, who supervised the plaintiff's rehabilitation at the Lawrence Hargrave Hospital. Dr Bashford concluded as follows: "As a result of the boating injury described, Mr Noferi suffered from a right sided compound comminuted fracture of the skull with depression and an underlying laceration and a parieto-occipital contusion and associated subarachnoid haemorrhage. In addition he suffered from a fracture dislocation of the right radius. He suffered from initial left hemiparesis. Mr Noferi had an estimated posttraumatic amnesic period of 10 days, defining him as having had a very severe brain injury. He is left with deficits in concentration, working memory and specific problems with visual analysis and construction tasks. He noted reduced anger control, as a result of the accident. He complains of chronic low back pain as a result of an L5/S1 annular tear. Mr Noferi is unlikely to show significant future recovery in his current posttraumatic brain injury or low back symptoms. He is unlikely to complete his premorbid studies to gain his Civil Engineering Degree, or if he does, it will be undertaken at a level academically much below his premorbid performance. I think it unlikely that he will complete his professional qualifications as a Civil Engineer. I would consider him fit for eventual return to clerical duties, full time, as long as this work did not entail prominent constructional tasks or visual analysis. His reduced anger management may limit his employability. His high-level balance deficits would limit certain vocational options and his back pain would limit heavy labouring activities. Surgical intervention is not indicated. Currently no anatomically specific treatment is of proven value for pain arising from the disc. Although he is allowed to drive with a 1A license, he is precluded from holding a commercial driver's license." 14 The eminent neurologist, Dr Paul Darveniza, who carried out a neurological assessment of the plaintiff on 16 March 2001 came to a similar diagnosis. 15 The cognitive problems and the physical difficulties flowing from the plaintiff's head injury as described by the experts who have seen him coincide with the lay evidence relating to the plaintiff's ability to carry out the type of work he had previously performed and his ability to undertake tertiary studies. I shall deal with this evidence later in these reasons. 16 Fortunately, the orthopaedic injuries suffered by the plaintiff in the accident have recovered in an excellent fashion. The plaintiff's treating orthopaedic surgeon, Dr Som Puri, concluded in a report on 11 October 1999 as follows: "Mr David Noferi sustained a severe compound head injury causing damage to his brain and soft tissue lacerations of his back and a fracture of his right arm when he was hit by a powerboat while swimming in open sea on 12th July 1997. His fracture of the right arm has united satisfactorily without leaving any significant deformity or disability." 17 I turn to the plaintiff's work and social history both before and after the subject accident. The plaintiff was born on 9 May 1975. He has lived the whole of his life in the Illawarra region. He grew up in a stable and loving family situation. His father with a partner had developed a concrete construction business principally known as Hedden Concrete Constructions Pty Ltd from humble beginnings to a highly successful operation. It was his father's desire that the plaintiff take over management of the business. 18 The plaintiff attended Port Kembla High School which is now known as the Illawarra Senior College and attained his Higher School Certificate in 1993. He then enrolled at TAFE undertaking successfully a two year course leading to an Associate Diploma in Engineering. Having successfully completed his TAFE course the plaintiff enrolled at Wollongong University as an undergraduate in the Engineering faculty with the object of obtaining a Bachelor of Engineering (Civil) degree. Apparently, he was given credit for certain subjects which had been part of his TAFE course and otherwise was successfully undertaking his studies in the engineering faculty prior to the accident. There is no reason to assume other than the plaintiff would have successfully completed his Bachelor of Engineering degree. 19 Living as he did, close to the coast, the plaintiff's major recreational activities were aquatic in nature. They principally involved surfing and diving. In fact the accident occurred when the plaintiff was undertaking diving expedition with the plaintiff, Lokys, and his brother, James. Otherwise the plaintiff's recreational pursuits were normal for a person of his age. 20 As I have already mentioned it was the plaintiff's father's desire that he would take over the company which his father and partner had founded. To this end the plaintiff had started working with his father's company on leaving school. He had continued to work on a variety of construction projects on a part-time basis while studying. While so doing the plaintiff was subject to scrutiny of his father and of his father's partner. His father deposed that his son up to the time of the accident had carried out his duties with the company to not only his father's satisfaction but also his partner's. Accordingly at the time of the accident his father's plans for his son were on course. 21 Following a period of rehabilitation after the surgical procedure of cranioplasty had been carried out the plaintiff returned both to his studies at the University of Wollongong and to part time work with his father's company. The cognitive deficits outlined by the experts which I have set out above were then demonstrated in full effect. 22 First, the plaintiff found he could not cope with his engineering studies and in fact abandoned them at the end of 1998. Second his attempts to perform duties whether administrative or physical with his father's company were totally unsuccessful. For instance, he could not compose the simplest of letters in the business. His clumsiness which is adverted to in the material I have quoted above made him a hazard on job sites. I have no doubt that the plaintiff tried his best both in his academic pursuits and at work following his recuperation from the cranioplasty. Despite this, the upshot has been that he is now not able to pursue his ambition to become an engineer and take over his father's business interests. 23 While he is currently unemployed I do not find that the plaintiff is in fact unemployable. However, what I do find is that his ability in the open workforce is severely restricted and he can only earn at the lowest of levels. Had he not been injured I am of the view that he would have successfully completed his studies at Wollongong University and would now be earning a salary as either as a professional engineer or as an executive of his father's business of $1,500 per week. I assess his present earning capacity in his injured state at $450 per week. Accordingly, I assess his current economic loss as being $1050 per week. It is that figure I shall use in calculating the plaintiff's future economic loss. 24 After his injury when the plaintiff went out of hospital he was essentially cared for by his mother. She is a trained nurse. I accept entirely her evidence that she spent many hours per week over a period two years caring for the plaintiff. I accept the figure of 21 hours per week as being a reasonable estimate of the amount of time she spent. 25 I turn then to the question of general damages. As may be seen from the above the plaintiff's principal flowing from his accident is lack of cognitive function plus clumsiness in movement brought about by his brain injury. I accept that the upshot of both his lack of cognitive function and his clumsiness have caused his great frustration and have, as his mother and brother deposed, made him short tempered. I accept that prior to the accident that the plaintiff was a man of good disposition. He has a long life ahead of him and will suffer frustration throughout the period of his life because of the inhibitions his disabilities bring to him in performing not only work but also recreational pursuits. Taking the usual considerations into account I would assess his general damages in the sum of $200,000. 26 While the plaintiff's mother is still providing him with domestic assistance, I am not satisfied on the evidence that the plaintiff could not care for himself. Accordingly, I am of the view that I should not make any allowance for future domestic assistance. 27 While a claim has been made for the services of a personal trainer, senior counsel for the plaintiff argued only faintly on this aspect of the claim. I am of the view that the plaintiff has not established the need for a personal trainer and accordingly disallow this head of claim. 28 I would make an allowance of $10,000 for future out of pocket expenses. I would, therefore, assess the plaintiff's damages as scheduled below. I have included in the schedule a number of items which are non-controversial and did not require in my view a need to give express reasons.

Assessment of damage 29 I assess the plaintiff's damages as follows:

Description of Damage Amount

1. General damages 200,000.00
2. Interest of past general damages:
   • 2% x $100,000 x 4.9 years 9,800.00
3. Past out of pocket expenses 25,115.00
4. Interest on past out of pocket expenses
   • $25,115 @ 6% x 4.9 years 7,384.00
5. Past wage loss 63,700.00
   • $13,000pa x 4.9 years
6. Interest on past wage loss 20,288.00
   • $63,700 x 6.5% X 4.9 years Future economic loss
7. • $1050pw X 38 years(to age 65 - now aged 27) 1,062,967.50 multiplier of 1191 x $1050 = $1,250,550.00
   • less 15% x $1,250,550 for vicissitudes Past Superannuation
8. On the basis of his father's evidence that the plaintiff will have to pay back superannuation paid since July 1997 to 30 June 2000. 9,320.00
9. Interest on past superannuation - disallowed Nil
10. Future superannuation 116,926.00
    • 11% of future net wages of $1,062.967.50
11. Past domestic assistance 27,384.00
12. Interest on past domestic assistance 8,051.00
    • $27,384 x 6% x 4.9 years
13. Future out of pocket expenses 10,000.00 TOTAL $1,560,935.50

John Sigitas Lokys 30 The plaintiff was injured in the circumstances I have detailed above. He was rendered unconscious in the accident. Indeed he had no recollection of the accident itself having a memory of swimming shortly before the accident occurred and then next remembering coming around in Royal Prince Alfred Hospital some four days later. 31 He was found to have right occipital scalp laceration which extended to the bone, a right knee laceration with a compound comminuted fracture of his patella, a right first web space laceration, a right hip laceration and right upper limb lacerations. The most significant injury he suffered, however, was an extensive compound comminuted fracture of the right ilium with a compound fracture of the right pelvis. Not only did he suffer these severe injuries but also he came close to drowning in the accident. He was on a respirator for a considerable time after the accident. 32 He was initially taken to Wollongong Hospital but because of a need for vascular surgery to his hip region he was removed to the Royal Prince Alfred Hospital where vascular surgery was performed upon the plaintiff by Dr Michael Stephen. While in Prince Alfred Hospital a CT scan revealed a small foci of hyperdensity with a ring of low density consistent with a cerebral contusion in the right posterior occipital lobe. Anteriorly a small focus of low density was observed which was indicative of a second brain contusion. 33 Following the plaintiff regaining consciousness he spent an uncomfortable time recuperating at Royal Prince Alfred Hospital - uncomfortable because of the nature of his injuries and not because of the care he was receiving. On 25 July 1997 he was transferred to the Port Kembla District Hospital where he remained a inpatient until 28 July when he was discharged home. 34 The extensive gouging of the plaintiff's thigh and gluteal region was such as to require dressing by way of packing the gaping wound on a daily basis. Initially this procedure was carried out by a visiting nurse but later, after the nursing visits ceased, this procedure was carried out by his wife. 35 It became apparent that complications had set in around the gaping wound in his gluteal area. The plaintiff was in considerable discomfort and pain as a consequence. Tests carried out revealed that he was suffering from a golden staph infection which caused his admission to the Illawarra Private Hospital at Figtree so that the infection could be properly treated. Not only was the plaintiff suffering from the problems associated with the gaping wound but also he had a large haematoma which was around his peritoneal area between his legs and extending into his scrotum. The discomfort and pain flowing from this haematoma is not difficult to imagine. 36 He was discharged from the Illawarra Private Hospital after being there as an inpatient for some ten days. He returned home to convalesce. During this time his wife, a schoolteacher, took time off work to take care of him. 37 His treatment after his discharge from the Illawarra Private Hospital consisted mainly of physiotherapy. However, by the beginning of October 1997 the plaintiff began to attend the Port Kembla District Hospital as an outpatient to receive rehabilitative treatment. That continued on a regular basis for a number of months. Eventually the haematoma disappeared and the gaping wound healed - leaving of course a significant scar in the form of a large depression in the plaintiff's thigh region. 38 Eventually in January 1998 the plaintiff was allowed to return to work. Prior to his injury the plaintiff had been employed by BHP Stevedoring as a grade 6 stevedore. That position involved not only normal stevedoring duties such as attaching hooks and slings and clambering around holds but also involved a considerable supervisory content. 39 On his return to work he did not return to full duties. Indeed he returned to perform clerical duties. He did this for three months on the basis of working five hours a day for two days a week. As his condition improved he was able to increase his hours and on 30 March those hours were increased to five hours a day for five days a week but again he remained on clerical duties alone. He continued during this time to attend the rehabilitation section of the Port Kembla District Hospital as an outpatient. He was finally discharges as an outpatient on 1 May 1998. 40 His work hours were increased at that time to 7.5 hours a day. He then returned to doing two days of his pre-injury duties as a level 6 stevedore and three performing clerical duties only. By June 1998 the plaintiff's duties were again changed - this time to performing three days per week of his pre-injury duties and two days working as a clerk. On 6 July 1998 he returned to working his full pre-injury duties. However, the plaintiff found working full shifts and double shifts for 42 hours a week beyond his physical capacity. This ultimately led on 6 February 2001 to the plaintiff reducing his work hours to 35 hours a week. On 6 May this year he returned working 42 hours a week. His return to working this regime was brought about by an apprehension on the part of the plaintiff that he would lose superannuation benefits if he were to remain working a 35 hour week shift. However, during the course of the trial the plaintiff received advice from his employer that his rights to superannuation would not adversely affected if he were to work a 35 hour rather than a 42 hour per week shift. Accordingly, the plaintiff (who returned to work on the last day of the trial) will now continue as a level 6 stevedore on a 35 hour rather than a 42 hour a week basis. 41 The plaintiff deposed that he had problems at work which involved timing difficulties when performing tasks such as attaching chains to articles which were being transferred by cranes. These timing difficulties, he deposed also, occurred when carrying out the aquatic sports which were his principal pre-injury and indeed post-injury forms of recreation. 42 Both his wife and a workmate, Mr Chetcuti, gave evidence to the effect that prior to the accident the plaintiff was a perfectionist. This desire to obtain perfection was evident both at work and in his general life. Mr Chetcuti deposed that following his return to work his performance had not been of the same standard as it was prior to him suffering injury. The following exchange in chief illustrates this point (p249):- "Q. Have you noticed anything about his performance that interferes with operations in any way? A. Yes.

Q. Any of his performance, yes, that hinders or interferes? A. Yes, it does and I mentioned it before. The fact he restowed, that is interfering with the operation.

Q. Have you heard any complaints being made to the boss? A. Yes, yes, yes. It is not complaints, you know; it is - every morning the boss walks in, you know, what have we done for the 24 hours and they look at the figures and if it is not a good figure he say, "Why? What is the problem? What were the delays", you know and if there is delays, unnecessary delays, you know, thane the boss ask who was in charge on that shift, you know, and when we tell him who that is, you know, even his own workmates, you know, they just roll their eyes as if, what do you expect, you know.

Q. You are talking about Mr Lokys? A. Yes." 43 The plaintiff also complains of a clicking sensation in his right hip which seems to be associated with an anterior bone in his hip. Apparently he is seeking treatment for this malady from a Dr Staley. Be this as it may the medical evidence presented on behalf of the plaintiff does not suggest that any treatment is required for this problem. I say this because the plaintiff principally relied upon the evidence of Dr Roger Pillemer which was tendered in evidence. Dr Pillemer having examined the plaintiff and examined records including x-rays came to the following conclusions:- " Diagnosis Mr Lokys sustained severe injuries in a swimming accident some three and a half years ago when he was hit by a boat. The main injury was to the right side of his pelvis where he sustained a comminuted and compound fracture of the ilium but with no involvement of this hip joint. I also note that there was extensive blood loss and that he had to be on a ventilator for the first four days in the intensive care unit. His fractures have healed satisfactorily, but he has been left wit a prominence anteriorly which in my opinion does not bother him sufficiently to warrant any further treatment. His main ongoing problem in my opinion is due to the extensive damage to the gluteus muscle with residual weakness of his right lower limb. Attributability His ongoing symptoms are due to his injury in July 1997. Future Treatment I do not fee that anything more active would be indicated in the way of treatment oat the present time. Fitness for Employment He has gone back to working as a stevedore and coping with this and I would accept that he is not capable of doing the same amount of heavy labouring activity as he was prior to his accident. Prognosis Mr Lokys will have ongoing problems with his right lower limb because of the muscle damage and there is also, as noted, a fairly large sensory deficit present. Rehabilitation This is not indicated. Impairment In my opinion Mr Lokys has a 25% permanent loss of efficient use of his right lower limb at or above the knee* as a result of his injury in July 1997 In my opinion he has a 12% permanent impairment of his pelvis as a result of this injury. * Reference American Medical Association "Guides to the Evaluation of Permanent Impairment" for Condition." 44 As I indicated earlier in these reasons during the time the plaintiff was convalescing from his injuries his wife cared for him. I accept the evidence given as to the nature and extent of that care which will be reflected in my assessment of damages to which I am about to turn. 45 I turn first to the question of general damages. The plaintiff is now 51years having been born on 31 August 1950. He has, as the medical evidence reveals, a continuing disability of some magnitude. Not only does he have that disability which inhibits him in his movements but also he has a grossly disfiguring scar in his gluteal region. Taking into account his age, the pain and suffering he has suffered and will suffer and all the other features generally associated with the award of general damages I am of the view that I should award him the sum of $125,000 under this head. 46 As much of the plaintiff's claim for damages is uncontroversial I shall now tabulate my assessment making comment where I believe it appropriate.

Description of Damage Amount

1. General damages 125,000.00
2. Interest of past general damages:
   • 2% x $62,500 x 4.8 years 6,000.00
3. Past out of pocket expenses 19,039.79 Interest on past out of pocket expenses
4. • $2,922.91 paid by plaintiff
   • $2,300.10 paid by plaintiff's employer -Total $5,223.01 @ 6% x 4.8 years 1,504.00
5. Property loss 400.00 Griffiths v Kerkemeyer claim 8 hours per day from 12 July 1997 to 30 September 1997 (12 weeks)
6. @ $25.00 per hour = $16,800.00 4 hours per day from 1 October 1997 to 31January 1998 (17.5 weeks) 29,050.00 @ $25.00 per hour = $12,250.00
7. Interest on Griffiths v Kerkemeyer @ 6% 8,360.00 Past wage loss 73,630.00 As per Part 33 Statement of 22 May 2002 page5 21,219.00
8. Interest @ 6.5% x 4 years 10 months Past Superannuation Employer Contribution Loss @ 8% of Gross Wage (tax taken as 33.04%) 7,836.58
   • $73,630 x 1.3304 = $97,957.35 x 8%

Future economic loss 24 May 02 to 31 Aug 02 (assumed date of reversion to 35 hour week) @ $100 pw (1 lost overtime shift per week) - 13 weeks 31 Aug 02 to retirement at 65 years - 3% multiplier for 13 years 563.3 - on differential between 42 hour week ($1,279.83) and 35 hour week ($914.24) $365.06 plus 1 x weekly overtime shift lost @ $100 9. = $465.06. $465.06 x 563.3 = $261,968.29 (While it was submitted that this was a case where it would be appropriate not to make any discount for vicissitudes of damages, on reflection I believe that it is appropriate so to do. The plaintiff's basis for claiming future economic loss is discreet. It is that he is now only able to work a 35 hour shift whereas uninjured he could work a 42 hour shift. In these circumstances I believe that it is appropriate to apply the usual discount for vicissitudes of 15% which I do.) $261,968.29 less 15% ($39,295.24) Future Superannuation loss (RTA v Cremona (2001) NSWCA 338) @ 11% on gross base rate $1,769.07 = $194.59 x 563.3

109,616.80 10. Future out of pocket expenses 7,000.00 TOTAL $632,629.17

Application of Limitation Formula 47 The two plaintiffs have agreed that to find the appropriate sum available to each from the fund established under Article 11 the following formula should be used: J N = $975,000 x V N V N + V L

J L = $975,000 x V L V N + V L

In the formula the following expressions have the following meaning: · JN means the amount in which judgment is to be entered against Smithers in the Noferi proceedings. · JL means the amount in which judgment is to be entered against Smithers in the Lokys proceedings · VN means the verdict (exclusive of costs) reached upon the assessment of damages in the Noferi proceedings. · VL means the verdict (exclusive of costs) reached upon the assessment of damages in the Lokys proceedings. 48 Applying the formula I thus assess the damages to be awarded to David Noferi in the sum of $693,808 and to John Lokys $281,192. As the fund created is inclusive of costs there will be judgment for each plaintiff in these amounts with no order as to costs. **********

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