DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERAL
PRINCIPLES – where plaintiff suffered an injury
at work by tub plates
falling on his foot – where liability is admitted by the defendants
Source
Original judgment source is linked above.
Catchwords
DAMAGES – MEASURE OF DAMAGES – PERSONAL INJURIES – GENERALPRINCIPLES – where plaintiff suffered an injuryat work by tub platesfalling on his foot – where liability is admitted by the defendants– where plaintiff complainedof significant ongoing pain – whetherthis pain is of the level described by the plaintiff - whether the plaintiff hassuffereda loss of earning capacity – whether the plaintiff is entitled todamages for the care received that was provided by his wifeandemployer.Superannuation Guarantee (Administration) Amendment Act 2012(Cth)Workers’ Compensation and Rehabilitation Act 2003 (Qld) s308EBugge v REB Engineering Pty Ltd [1999] 2 Qd R 227(1998) QSC 185citedColeman v Anodising and Aluminium Finishers of Queensland Pty Ltd[2002] 1 Qd R 141
(1999) QCA 467 cited
Craddock v Anglo Coal (Moranbah North
Management) Pty Ltd [2010] QSC 133 cited
Driver v Stewart [2001] QCA 444
cited
Griffiths v Kerkemeyer (1977) 139 CLR 161
[1997] HCA 45
cited
Grincelis v House (2000) 201 CLR 321
[2000] HCA 42 cited
Heywood v
Commercial Electrical Pty Ltd [2013] QCA 70 cited
Kars v Kars (1996) 187 CLR
354
[1996] HCA 37 applied
Newberry v Suncorp Metway Insurance Ltd [2006] 1
Qd R 519
[2006] QCA 48 cited
Planet Fisheries Pty Ltd v La Rosa (1968) 119
CLR 118
[1968] HCA 62 cited
Thomas v O’Shea (1989) ATR 80-251
cited
Whittaker v Farnsway Mining Construction Pty Ltd [2004] QSC 160
cited
Judgment (115 paragraphs)
[1]
[1] McMeekin J: The plaintiff, Scott William Pollock, claims damages for personal injury suffered on 7 April 2010.
[2]
[2] Mr Pollock was injured at his place of employment when a tub plate weighing in the order of 150kg fell crushing his right foot.
[3]
[3] The plaintiff's employer was a labour hire company, now in liquidation. WorkCover Queensland, the third defendant, stands in its shoes. The plaintiff's labour was hired to the second defendant, Australian Bearings Pty Ltd. That company had agreed to perform work for the first defendant, Thiess Pty Ltd, the owner of the mine where the relevant work was being performed. The defendants exchanged notices of contribution or third party notices.
[4]
[4] Liability for the injury is admitted both to the plaintiff and as between the three defendants. I am required to assess damages.
[5]
[5] Mr Pollock was born on 5 April 1984. He was 26 years old when injured. He is now aged 30 years.
[6]
[6] Because Mr Pollock was injured at work the provisions of the Civil Liability Act 2003 ("CLA") have no application: s 5(1)(b) CLA and see Newberry v Suncorp Metway Insurance Ltd.[1] The only relevant distinction between the three defendants is in the assessment of damages under the Griffiths v Kerkemeyer[2] principle - for the third defendant the assessment is to be determined under the provisions of the Workers' Compensation and Rehabilitation Act 2003 (Qld)[3] (WCRA) and damages under that head are not available: s 308E WCRA.
[7]
[7] Mr Pollock suffered a Lisfranc fracture of the right forefoot. There was, as well, damage to the surrounding soft tissues.
[8]
[8] Two surgical procedures were undertaken. The first involved a fixation of the fracture with screws. There followed a period where Mr Pollock could not bear weight on the injured foot. The convalescence was long and not trouble free. Mr Pollock needed assistance with some aspects of daily life. His partner assisted him. Mr Pollock complained of ongoing symptoms of pain, swelling, numbness and pins and needles. Degeneration developed in the tarsometatarsal joints.
[9]
[9] Because of that degeneration Dr Saxby, an orthopaedic surgeon specialising in surgery to the foot and ankle, determined to carry out a second procedure - a tarsometatarsal fusion with bone graft and internal fixation. The medical evidence is that the procedure achieved its aim of fusing the bones and putting a stop to the developing degeneration.
[10]
[10] Again a period of non weight bearing followed the surgery and then Mr Pollock wore a "moon boot." He again required assistance from his partner.
[11]
[11] To an extent the assessment depends upon the accuracy of Mr Pollock's evidence. One issue concerned his complaints of a burning pain on the top of his injured foot. That symptom was first recorded some time after the accident.
[12]
[12] Overall I was impressed by Mr Pollock. He was evidently proud of his physical capacities - he is a strongly built individual - and his ability to be the bread winner for his growing family. He gave his evidence in a straight-forward manner. He did not appear to attempt to avoid questions. His account was confirmed in relevant details by his partner, Ms Kai-Ann Bawden. She too was impressive. With one reservation I saw no reason to doubt Mr Pollock's description of his symptoms and their impact. The reservation concerns Mr Pollock's grading of the pain he experiences as being in the order of 7/10 up to 10/10.
[13]
[13] Defence counsel made several points that were valid - Mr Pollock gave no impression in the witness box of being in anything like severe pain yet rated his pain even then at 7/10; the only medication taken for some years now consisted of panadol and that from time to time and none on the day of the hearing; comments made by him to treating practitioners over the years were inconsistent with anything like that level of consistent pain; and the surgery undertaken was designed to and, so far as objective tests could show, had resulted in a fusion which should have reduced pain.
[14]
[14] Despite Mr Myers' efforts to educate Mr Pollock on what was meant by the visual analogue scale[4] it seemed to me that Mr Pollock simply did not grasp the concept. I am confident he was not being dishonest and deliberately exaggerating his complaints as the defence contended. Apart from his demeanour, which as I have said impressed me, it would make no sense to use words to exaggerate but give no outward sign of any discomfort when in the witness box. Indeed his very description of his condition as he sat in the witness box made plain he was not describing severe pain: "It'd be sitting around that sort of seven mark, because you've got that - that constant pins and needles, you know? It's just - on top of the pain, it's - well, that's - in my book, I think it's that, but yeah. It wears you down after a while."[5]
[15]
[15] Nor would it make sense for Mr Pollock to pursue and gain well rewarded employment as he has done if his intent was to deceive.
[16]
[16] That Mr Pollock thought that his pain was severe is evident. I am satisfied that at times it was. His partner spoke of him crying at times, apparently because of the pain he experienced. As he mentioned he was administered morphine at one time because of that pain. But I am confident that the pain has eased over the years and while it can still be troubling, gets worse with activity and requires pain killing medication, it is at a much lesser level than a 7/10 assessment would suggest.
[17]
[17] The late onset of the burning pain to the sole of the foot was described by a Dr Peereboom, like Dr Saxby an orthopaedic surgeon specialising in surgery to the foot and ankle, as "inexplicable."[6] He could not see how the pain could be connected to the subject incident. But, accepting the symptom as I do, the only alternative hypothesis is that there was an onset of such pain for no apparent reason but coincidentally in the foot that had been severely crushed and then subject to surgical procedures. The hypothesis that there is no connection between the crush injury and surgery and the symptom strikes me as even more inexplicable.
[18]
[18] Dr Peereboom seemed to be of the same mind as he adopted the suggestion that it was not a coincidental finding.[7] Those treating the plaintiff including Dr Saxby, expressed no reservations about the connection. Dr Saxby has the advantage of having had a greater degree of contact with Mr Pollock and of course of having operated on him. Dr Peereboom has seen him only once and at a time when the disputed symptom seems not to have been apparent.
[19]
[19] While it does not seem to be of great significance, on balance, I am satisfied there is a causal connection between the burning pain to the sole of the foot and the injuries sustained in the subject accident.
[20]
[20] The impact of the injuries and their consequences on Mr Pollock has been quite serious. He has ongoing pain at some level. He finds that wearing. He is restricted in his daily activities in various ways. Even crossing a floor with varying levels is a problem. He uses orthotics. He cannot climb ladders, walk on uneven ground or carry heavy weights - all typical activities of a boilermaker which is his trade - without aggravating his discomfort. He has difficulty sleeping at night as he suffers from a cramp like pain. He continues to take panadol. His sexual relations with his partner have been affected. His ability to engage with his three children has been affected.
[21]
[21] Dr McCartney, an occupational therapist, assessed a 10% impairment of the leg under the AMA guides.[8] Dr Peereboom assessed a 4% whole person impairment but observed that "this is very poorly characterised" under those guides.[9] As RR Douglas J observed in Driver v Stewart[10] percentage impairments are of little assistance in determining the award.
[22]
[22] In their submissions counsel have referred me to two decisions - one of my own of Craddock v Anglo Coal (Moranbah North Management) Pty Ltd[11] and one of Douglas J of Whittaker v Farnsway Mining Construction Pty Ltd.[12] Both involved injuries to the foot or ankle and both resulted in awards under this head of $60,000.
[23]
[23] There are many similarities between this case and Craddock. The percentage impairment, the limited amount of medication consumed, the restrictions on employment in a demanding industry, the general impact on the activities and amenities of life are all at least similar. Mr Pollock is a little younger. It is not irrelevant that four years have passed since that assessment. Inflation constantly erodes the value of money.
[24]
[24] The defendants contended for an assessment of $50,000. Mr O'Driscoll who appeared for the plaintiff contended for an assessment of $70,000 arguing that the previous decisions cited to me were not a reliable guide and further that the Court of Appeal had deprecated the practise of counsel advancing arguments based on such decisions. He cited the judgment of Muir JA in Heywood v Commercial Electrical Pty Ltd[13] in support of that contention. Properly understood Muir JA was there speaking of arguments about future economic loss. The High Court long ago did determine that standards of general damages could not be derived from other cases[14] but that ruling has been ignored now for four decades. There seems to me to be merit in the notion that I should at least be internally consistent.
[25]
[25] I assess damages under this head at $60,000.
[26]
[26] There is force in the submission that the worst of the pain is behind Mr Pollock. Of course on the prospective life tables he has 55 years of continuing discomfort and restriction ahead of him. I apportion $30,000 to the past component and so that amount will be interest bearing.
[27]
[27] It is not in issue that the injuries and their consequences have impaired Mr Pollock's earning capacity. He cannot climb ladders (at least safely), climb scaffolding, get up on large machinery, work at heights where there is a risk of falling, cope with uneven surfaces or rough terrain, carry heavy welding gear or stand for extended periods of time.
[28]
[28] Mr Pollock has been on a Newstart allowance since mid 2013 but had well paid work as a fabrication supervisor in a workshop for about 12 months until February of that year.
[29]
[29] The plaintiff seeks $214,140 under this head of loss. The defendants have contended for amounts ranging from $92,962 (the first defendant) to $109,107 (the second defendant).
[30]
[30] The starting point for any assessment is a view as to Mr Pollock's sustainable earning capacity had the subject accident not occurred. This was a subject of some debate. Indeed his actual pre and post accident income was as well.[15]
[31]
[31] Mr Pollock was a qualified boilermaker at the time of the subject accident and had sought and obtained work with contractors in the mining industry.
[32]
[32] It is a feature of the lives of workers such as Mr Pollock that they go from contract to contract with no permanence of employment. Often "holidays" are simply breaks in the continuity of employment while awaiting another chance of a contract. Despite the uncertainty of such a life boilermakers can earn a good living. Pay rates vary between city and country and between workshop and field. They can be at a flat hourly rate or can be at ordinary time with loadings for longer hours and weekend work. Hours can differ from job to job - sometimes seven days a week work is required, sometimes twelve hour days are worked, sometimes ten. All this means that it is very difficult to say with any confidence that one worker in the industry is comparable to another.
[33]
[33] The matter is further complicated because it is common ground that the mining industry suffered a significant downturn in mid 2012. The evidence suggests that there was a marked upturn about twelve months ago.
[34]
[34] While it is evident that pre accident Mr Pollock maintained reasonably constant employment the parties have been unable to agree on what his net pre-accident earnings were.
[35]
[35] Notices of Assessment issued by the Australian Taxation Office show that in 2006-07 Mr Pollock earned a net weekly average of $1,052. In 2007-08 he averaged $826. There is then disagreement about the averages.
[36]
[36] For the 2008-09 year. Mr O'Driscoll contends for an average of $1,525. The second defendant nearly agreed submitting for $1,519. The first and third defendants argue that the accurate average is $1,497. That latter figure reflects the Notice of Assessment issued by the Australian Taxation Office.[16] Obviously the differences are not great but there seems no good reason to ignore the Notice of Assessment.
[37]
[37] I think that there is good reason to ignore the Notice of Assessment for the next year. The tax return for the 2009-10 year, the year encompassing the subject injury, shows a net income after deductions and income tax of $80,216.[17] Taken as an average over a 52 week year the net weekly income is $1,542.[18] However that includes income earned after the accident when it is common ground Mr Pollock was not able to attend his employment. Mr Pollock's employer, Bowen Basin Mine Maintenance and Labour Hire Pty Ltd, continued to pay Mr Pollock at some rate during the time he was entitled to compensation and obtained a refund from WorkCover for that period. There is no evidence that the rate adopted reflected the actual wages that Mr Pollock would have received had he been fit.
[38]
[38] Mr O'Driscoll's approach was to ignore that part of the income earned subsequent to 28 March 2010, the date Mr Pollock commenced with Bowen Basin Mine Maintenance and Labour Hire Pty Ltd, and divide the net shown in the PAYG summaries to that date[19] by 39 weeks (the period from 1 July to that date) to arrive at a net weekly average of $1,703. While that probably slightly overstates the true net average for the period - as it was when Mr O'Driscoll did the exercise for the previous year in the same way - the average arrived at gives a better indication than an average based on the Notice of Assessment.
[39]
[39] It is notorious that up and until 2012 the mining industry enjoyed boom conditions. As I have said, those conditions continued until a marked downturn in June-July 2012. Because of this I see no reason to go back to income earned years before, as the first defendant's urged, to arrive at a probable sustainable average in the immediate post accident period. The two years pre accident provides the more reliable guide.
[40]
[40] So I adopt an average sustainable net weekly income of $1,600 up and until the downturn of 2012. If anything that may be a disservice to Mr Pollock given his average in the nine months immediately prior to the subject accident.
[41]
[41] It was submitted that there should be some further discounting of this figure to allow for time out of employment as commonly occurred. Reference was made to the evidence of a Mr Rooks, who was called by the plaintiff as a comparable employee, who spoke of having about six weeks off each year. To apply such a discount however involves double discounting - the average adopted already allows for whatever time Mr Pollock had off in the preceding two years. No party explored the matter but there is no reason to assume that, if uninjured, Mr Pollock would have had any more time off after the accident than before, subject to what I have to say about the downturn in the industry generally.
[42]
[42] Evidence from the alleged comparable boilermaker, Mr Rooks, indicates that there was work more or less constantly available for him after April 2010. He has enjoyed a gross income of just under $130,000[20] - about the same weekly average as Mr Pollock's income in the nine months pre accident. Mr Rooks was a single man and prepared to work long hours and pursue employment whereas Mr Pollock had the restrictions of a family and a wish to be with them. But Mr Rooks' income provides some support for the average I have assumed.
[43]
[43] Whether Mr Pollock would have been significantly affected by the downturn had he not been injured is impossible to say. Many boilermakers lost their jobs. The company for whom Mr Pollock was working as a supervisor went into receivership. Evidence was given by the director of the second defendant, Mr Smith, that he laid off 50 to 60 workers, 30 to 35 of whom were boilermakers. Mr Pollock had worked for the second defendant over the years. On average Mr Smith thought that he kept about 40 qualified boilermakers on through the slower period and those generally were the more senior ones.
[44]
[44] Whether Mr Pollock qualified as a senior boilermaker, at least in Mr Smith's estimation, was not explored. I note that in his injured state Mr Pollock obtained work as a fabrication supervisor which tends to suggest that he was well respected and well qualified. I note too that Mr Rooks had worked with Mr Pollock before his injury and under him when he was a supervisor. He described Mr Pollock as "very competent."[21] It is not apparent that the downturn significantly affected Mr Rooks' income.
[45]
[45] In my view the downturn in the industry, which, according to Mr Smith, has still not returned to its halcyon days but in its severe form lasted perhaps nine months, justifies only some modest discounting of the award.
[46]
[46] As seems inevitable there was no agreement as to the relevant post accident net earnings. The plaintiff put the figure at $158,000. The first defendant, represented by Mr Myers who is not given to overstating the opposition's case, submitted $160,000 was the correct amount. The third defendant contended for $146,260 limiting the relevant earnings to 30 June 2013. The explanation for that approach is that since then Mr Pollock has not in fact earned any income but has been in receipt of Newstart allowance which will be refundable. That approach seems correct in principle.
[47]
[47] The second defendant took a different approach. It argued that Mr Pollock's performance of work as a supervisor with Sandvik for 12 months at an income comparable to his pre accident income demonstrated a very substantial residual earning capacity. The proper approach it was submitted was to allow the amount paid by WorkCover for the period of compensation ($46,451), then a full loss of earnings for 12 months on an assumed earning capacity of $1,570 per week and thereafter a loss of $300 per week. The change in approach was justified by Mr Pollock's obtaining of the supervisory work at a comparable income to his pre accident work. On this basis the relevant earnings to bring into account were only in relation to the 52 week period - $66,984.
[48]
[48] I reject this approach for a number of reasons. First the amount of compensation paid bears no necessary relationship to the probable earnings foregone during the period that compensation was received. Secondly, the fact that Mr Pollock earned a significant income for 12 months does not mean that there was better paid work available to him when he was out of employment than he actually obtained, which is the implicit assumption.
[49]
[49] The argument amounts to a contention that Mr Pollock failed to mitigate his loss.[22] There is no evidence to support that. It is trite law that there is an onus on the defendant to establish such a failure. As well in the sphere of personal injury assessments there is authority that there is an evidential onus on the defendant to show a residual earning capacity where the plaintiff proves that his capacity has been impaired. I have in mind the decision in Thomas v O'Shea (1989) ATR 80-251 at p 68,701 subject to the comments of Chesterman J (as his Honour then was) in Bugge v REB Engineering Pty Ltd [1999] 2 Qd R 227; (1998) QSC 185; and see Coleman v Anodising and Aluminium Finishers of Queensland Pty Ltd [2002] 1 Qd R 141; (1999) QCA 467 at [16] per RR Douglas J. In my view that onus was not discharged. While an effort was made to show that Mr Pollock could do one of the tasks that Mr Smith required be performed in his workshop the cross examination was devastating:
[50]
"Does the person that carries out the job that sits down have those restrictions? That is, difficulty climbing ladders, difficulty on uneven surfaces, difficulty standing statically for long periods of time? The person you currently employ in that role - - -?---Yeah.
[51]
And, in fact, you have no persons currently in your employ that has those limitations, do you? No.
[52]
No. Because you're not going to put your company at risk if there's a person with any physical impediments or limitations on your site, are you? Yeah.
[53]
No, you're not going to employ them, are you, if they come to you with physical limitations in the carrying out and performance of their work? No.
[54]
And if any employee came to you who was fit and healthy with the same qualifications as a person who is injured with those limitations, you're going to employ the fit and healthy person every day of the week, aren't you? That's correct."[23]
[55]
[50] Against these arguments Mr Pollock swore, and was not challenged, that he had made "dozens and dozens" of job applications.[24] It was not shown that he was not actively and appropriately seeking employment.
[56]
[51] I assess the loss of income to date at $180,000.[25]
[57]
[52] The defendants contended for awards under this head of loss ranging from $200,000 to $246,000. The plaintiff sought $646,800.
[58]
[53] Many of the considerations relevant to the past are relevant to the future assessment.
[59]
[54] Mr Pollock obtained employment as an industrial sales representative just prior to the trial. He is still completing his training and is yet to start. He has been promised an income of $70,000 gross with undefined possibilities of commission. Given Mr Pollock's descriptions of his communications with the proprietor of the business it is by no means clear that the job is a certainty. He has never before worked in this capacity and is very uncertain of his abilities.
[60]
[55] The defendants stressed that Mr Pollock's performance of his supervisory role at Sandvik for 12 months on an income comparable to his pre accident income demonstrated that he had a very substantial residual capacity.
[61]
[56] Perhaps if a role of the type he enjoyed at Sandvik could be obtained Mr Pollock might last in it. But he plainly lasted as long as he did with considerable difficulty. Mr Pollock's evidence was that he found that he had difficulty coping with the pain particularly after an increase in his hours. His evidence was:
[62]
"And did it suit?---Yes, it did for the start, then the hours increased. I suppose the - I could go - my job was between the office work, and, you know, being out on the floor, walking around checking on stuff. So I could sort of make it work and go back to the office and do paperwork when I need to have a sit-down, but I suppose at the end of the day the hours were probably the thing that was getting to me - getting to me foot.
[63]
And what did it cause? The longer you were on your feet, did that cause any increase or decrease in your pain?---Increase.
[64]
Again, on the scale of the one to 10?---Yeah, it was hitting the - you know, the 10 mark.
[65]
Even when you'd been taking Panadol?---Panadol, you know, you take the edge off. It might bring it down to say an eight or nine, but, I mean, the pain, it's that sort of, you know, that deep pain that I suppose gets to you mostly, the stuff that's always there."[26]
[66]
[57] The defendants were critical of Mr Pollock's evidence of his difficulties. They pointed to the evidence from medical specialists that the work as a supervisor appeared to be within Mr Pollock's capacities but that is not conclusive of the point. First, as Dr Saxby observed, it is not their pain.[27] Secondly, the specialists cannot really know what the actual tasks are and what the demands of the work involve and its daily impact. Thirdly, individuals vary in terms of their recovery from injury and the surgery undertaken here.[28]
[67]
[58] Mr Pollock's description of the measures he took to cope with the pain he experienced - increased medication, hot and cold packs, elevating the foot when he was at home and staying off it as much as he could[29] - paint a graphic picture of how difficult it was for him.
[68]
[59] Some indication of the level of his distress was his evidence that on his way home at the end of a day's work he would cry from pain and the frustration caused.[30] I had the impression that Mr Pollock was very keen to maintain his employment in the boilermaking field if he could. But there is a limit to what can reasonably be expected of an injured worker by way of mitigation of his loss.
[69]
[60] So while Mr Pollock lasted until he was made redundant it is by no means clear that he could reasonably cope with that work long term or that another employer would be willing to take him on in that role. The evidence that Mr Smith gave in cross examination and that I have quoted above points to the difficulties he will have. This evidence too meets the defendants' argument that the medical evidence did not support a significant impairment of earning capacity.
[70]
[61] Another difficulty not mentioned to Mr Smith is that Mr Pollock is not as adaptable as more able bodied employees. As Mr Smith pointed out one day the workers may be in the workshop but the next day they might be called out on a mine site. Given the Coal Mine Workers' Health Scheme report tendered I doubt that Mr Pollock would be allowed to work at all on site.[31] He certainly is not cleared to do so. The restrictions noted were to avoid walking on uneven, broken ground and a restricted capacity for squatting but that in relation to a sales position.
[71]
[62] In summary it seems to me that the approach generally taken by the defendants of assuming that the work at Sandvik provided a reliable basis for long term assumptions about Mr Pollock's earning capacity over stated the case.
[72]
[63] The approach that Mr O'Driscoll contended for was to assume a salesman's income as the sustainable residual earning capacity ($1,051), apply the difference between that and the average sustainable income if uninjured taken as $500 over 37 years, discount for contingencies and then add a substantial amount ($200,000) to reflect Mr Pollock's vulnerability in the workplace generally. That too overstates the case.
[73]
[64] Mr Rooks' ability to consistently earn about $1,700 net per week suggests that as a starting point for a sustainable income if uninjured. As I have found, Mr Pollock earned at that level too before his injury. While the defendants reasonably stressed that Mr Rooks had differing motivations to Mr Pollock and a greater ability to go where the work was and pursue income, Mr Pollock's responsibilities and motivations are not static. To argue that his motivations when he is young, his partner frequently pregnant and his offspring but little children, at present three under five years of age, set the course of his whole life is to ignore experience. And he might find as his family grows up that there are demands on him to pursue greater income. Many do.
[74]
[65] The income of a salesman provides a guide to Mr Pollock's longer term possible income in the future. It needs to be borne in mind that Mr Pollock is untrained and inexperienced in this field. So the receipt of that level of income is hardly certain. There may be commissions payable and Mr Pollock might find a better paid supervisory position as he enjoyed at Sandvik, but there may be significant periods of unemployment too. I think that one set of contingencies cancels the other.
[75]
[66] The vagaries of the mining industry require more than a usual discount. So does the assumption of a boilermaker working in hard physical work even to age 65 years.
[76]
[67] There are many imponderables. It should be appreciated that the discount for contingencies depends to a degree on each of the assumptions - the higher the assumed earning rate if uninjured, the greater the appropriate discount. Conversely the higher the assumed sustainable residual capacity the lower the discount.
[77]
[68] I allow $455,000 under this head of loss.[32]
[78]
[69] The submission was put, but faintly pressed, that assessment of a global sum for economic loss encompasses this head of damage. On my approach it does not. Superannuation paid by the employer is a significant component of modern remuneration packages. Allowance has to be made for its diminution. I will adopt the usual approach of allowing the percentage prescribed under the Superannuation Guarantee (Administration) Amendment Act 2012 (Cth) of the past and future assessments. Here it was submitted by the plaintiff that 9.25% represented the fair average for the past and 11.3% for the future. I will adopt those percentages.
[79]
[70] Nearly $42,000 is claimed for the provision to Mr Pollock by his partner of gratuitous services to date pursuant to the principles identified in Griffiths v Kerkemeyer[33] and Van Gervan v Fenton.[34] As mentioned, the claim is advanced only against the first and second defendants. The claim is summarised in the following schedule:
[80]
[71] The rate of $27.50 per hour was agreed. An appropriate rate for the future was conceded to be $30 per hour.
[81]
[72] I confess to some difficulty following the schedule. For the first period mentioned the claim made is for 12 hours per day for seven weeks. No evidence comes close to supporting such a level of assistance. Nor can I see much support for the claim for eight hours per day following the surgery in May 2011. Nor is there any evidence of any ongoing need for assistance at two hours per week.
[82]
[73] That some care was needed and provided was accepted by both defendants. The first defendant contended for a very modest assessment of $1,000 reflecting a need for care of two hours per week over a total of 18 weeks. That submission assumes that I largely discount the evidence of Mr Pollock and Ms Bawden. I do not.
[83]
[74] The second defendant submitted that $11,550 was appropriate on the basis of a need for care for about two hours per day for 20 weeks and one hour per day for another 20 weeks. Both defendants submitted that no need for future care was shown.
[84]
[75] As to the past, Mr Pollock plainly needed some assistance. There are three relevant periods: after the first surgery on 13 April 2010, after the removal of screws following that first surgery in June 2010, and after the fusion operation by Dr Saxby in May 2011.
[85]
[76] On each occasion following his discharge from hospital Mr Pollock was immobilised for some weeks and had very restricted mobility for some weeks after that. It was reasonable that he required assistance with meals, showering, dressing, transport to medical and physiotherapy appointments. As well he could not attend to normal domestic asks such as mowing the lawn.
[86]
[77] No records were kept of the assistance rendered. Most tasks would have been accomplished in a few minutes, eg getting him to and from the toilet or shower, helping him dress, getting his medication which was kept out of the reach of children and so out of his reach, and injecting him in the stomach - which he found he could not do to himself. Other tasks may have taken a little longer such as getting him meals. Ms Bawden thought that these general duties took up two to three hours a day.[35]
[87]
[78] Travelling to and from appointments for treatment seems to have involved the most significant commitment in terms of time. One visit could take up to two hours. This included waiting time at the surgery or practise. This inclusion was criticised but there was no evidence that Ms Bawden could reasonably have used her time in some other way and to her advantage. There were weekly visits to a general practitioner for four or five months. There were one to two visits per week to a physiotherapist and to aqua-therapy for several months as well.[36]
[88]
[79] It was submitted that there should be some reduction in the award because there was some evidence that an employer had provided some of the driving assistance and because on some occasions Ms Bawden joined Mr Pollock in the pool at aqua-therapy. As to the first point it is wrong in law.[37]
[89]
[80] As to the second point the implication seems to be that the attendance at the pool was merely a reflection of the close relationship of Ms Bawden and Mr Pollock. There was no submission made that attendance at the pool was not a reasonable response to the injury. Nor was it contended that Mr Pollock could have got there without help. Some moderation of the award may have been appropriate if it was shown that Ms Bawden used these journeys to further her own ends in some way. But her entering the pool to while the time away as she waited is no different to her sitting in the car until that time had elapsed.
[90]
[81] Doing the best I can on very uncertain materials I assess the care needs at two hours per day for domestic chores for two months reducing to one hour per day for two months and four hours per week for driving to and from appointments for 4 months following each of the two major surgical events and allow $13,700. Some additional sum is appropriate for the period following the removal of the screws. The evidence is even more imprecise here. I will round off the claim to $15,000.
[91]
[82] As to the future Mr Pollock's relevant limitations relate to lifting heavy weights, coping with uneven ground, climbing ladders and working at heights. These could potentially impact on his ability to carry out some domestic chores that would normally be undertaken by a man with his skills. Those tasks are likely to come up only occasionally. Only a global sum, and a very modest one, is appropriate. I will allow $2,000.
[92]
[83] Mr Pollock's prospective needs include the provision of orthotic devices and some analgesia. There is no evidence that he will need surgery or be likely to need to attend on a general practitioner.
[93]
[84] The evidence is not entirely clear as to the type of orthotics used. The costs and the life can vary. Mr Pollock's experience of those costs and the frequency of the need for replacement appear to differ from Dr Peereboom's expectations. I think it is the practical experience that should prevail.
[94]
[85] I assess a global sum of $5,000 - allowing about $3,500 for orthotics and the balance for analgesia.
[87] There will be judgment for the plaintiff against the first and second defendants in the sum of $865,158.88. There will be judgment for the plaintiff against the third defendant in the sum of $758,839.45.[44]
[14] See Planet Fisheries Pty Ltd v La Rosa[1968] HCA 62; (1968) 119 CLR 118; (1968) 42 ALJR 237 where Barwick CJ, Kitto and Menzies JJ said at 118 "...it is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases". Professor Luntz has collected the decisions accepting, distinguishing and ignoring the decision: Assessment of Damages for Personal Injury and Death (4th edn) at p219 para 3.1.6
[106]
[15] I note that the plaintiff's "quantum statement" Ex 1 at para 97 misleads in promising to set out the pre accident earnings.
[18] How accurate my arithmetic or assumptions might be is a matter for debate. The first and third defendants submitted the correct figure was $1530, the second defendant submitted $1569. I think the difference between my approach and the first and second defendants is in the offsets identified at Ex 2 p128
[22] Regrettably I cut Mr O'Driscoll short when he attempted to address me on the subject, not realising that the submission had been inherent in the outline tendered.
[111]
[25] $1600 pw for 212 weeks less earnings of $146,260 discounted to allow for the chance of unemployment in the downturn
[112]
[32] $650 per week over 35 years (876) discounted by 20%