Pryor v Vibro

• 23 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 HIS HONOUR: The plaintiff brings these proceedings for damages arising out of the injuries which he suffered, on 22 May 1999, in the course of his employment with the defendant. On that occasion he fell some 2.5 metres onto a concrete floor when a beam, on which he was standing, gave way. Liability has been admitted, and the matter proceeded as an assessment only.

1. PLAINTIFF'S BACKGROUND 2 The plaintiff was born on 16 August 1955 and is now aged 46 years. He left school at the age of 15 years, without the School Certificate. He had been in almost continuous employment in activities involving manual labour, mostly heavy labour, until his fall. He had however, attained a trade qualification in metal spinning, and also had certificates as a forklift driver and as an operator of certain cranes. 3 While working with Comeng at Braemar, in about 1976, he sustained a knee injury which later led to him undergoing a patellectomy; that did not however prevent him working. 4 After leaving Comeng he worked, for some 8 years or so, as a self-employed handyman. Otherwise he has worked, on a full time basis, apart from a few months selling computers, for various employers including Dux Heaters, the defendant, and a company Adjuvate, which manufactured cement products. At the time of the accident, and for some years previously, he had held part time weekend employment with a hardware business, Magnet Mart, at Bowral, working mainly in the wood yard, where his duties involved lifting and carrying heavy materials, and assisting customers with the loading of their purchases. 5 Following the accident, he returned to work with the defendant for one week but was unable, due to pain and restrictions, to continue in that employment. He was then offered, and took on, full time employment with Magnet Mart, although now working inside the store. He was not able, by reason of his full time employment, to continue with the part time weekend work. 6 He had a sympathetic employer at Magnet Mart, and was able to continue, although with difficulty, and with support from fellow workers and customers, until January 2000 when he found it necessary to reduce his work to 25 hours per week. However, from 7 August 2001, he found that his disabilities were such that he had to cease even that limited employment. 7 It is not suggested by the defendant that his physical disabilities are other than genuine; nor is it suggested that he could undertake any form of work which involved any degree of manual labour. Issues do arise in relation to certain aspects of his claim for damages, although they concentrate principally upon the extent to which he has a residual capacity for employment. Necessarily that issue, and the surrounding issues, turn upon the medical evidence in the case. It is necessary to consider that aspect in the light of the plaintiff's physical condition preceding the accident, as well as subsequently.

(a) Pre Accident 8 As might have been expected of any employee who had been working in positions involving heavy labour, the plaintiff had sustained some prior physical complaints, not all of which he recalled. The medical records, and answers adduced either in chief or through cross examination, revealed, for example that he had suffered from:

a) childhood burns to a leg which had left him with considerable scarring;

b) the knee injury previously mentioned, which was still productive of intermittent problems in the form of instability and anteromedial pain; although review in 1995 excluded any significant degenerative changes or joint narrowing;

c) a shoulder strain in about 1996 for which ultrasound examination had excluded any significant abnormality;

e) intermittent back pain for which the plaintiff had received attention from his general practitioners at least in 1998, and possibly on other occasions; and

f) a sore neck which had flared up intermittently over the 18 months or so preceding the fall at work. 9 On 30 March 1998 the plaintiff had a full spine x-ray taken, on referral from his general practitioner, which as later events transpired, helpfully provided a snap shot of his back during the year preceding the fall. The report of this examination noted: " A mild thoracic scoliosis is present convex to the right. There is a linear fusion defect through the posterior elements of S1, this is unlikely to be of any clinical significance. L1 is transitional having elongated, rib-like transverse processes. Early osteophytic lipping is developing at the anterior margins at several of the thoracic discs. No disc space narrowing or other bone or joint abnormality is seen." 10 For some of these conditions the plaintiff had received massage and chiropractic treatment. Significantly for present purposes, the onset of neck pain took the plaintiff to see a chiropractor, Ms Cheetham, on 4 May 1999, some 2 weeks before his work accident. By reason of his complaints of neck pain of 12 months duration, and of back pain of 2 weeks duration, she arranged that he have a full spinal x-ray on 11 May 1999 before commencing treatment. It was reported as revealing: " THORACIC SPINE: There is a slight scoliosis convex to the right. Some small anterior osteophytes are developing in the dorsal region. No other bony, disc or joint lesion is noted. LUMBO-SACRAL SPINE AND PELVIS The hip joints, the sacro-iliac joints and symphysis pubis and bony pelvis are normal. There is a spina bifida of the upper sacral segments. There is a slight reverse spondylolisthesis of L5 on S1 with narrowing of this disc space. No other bony, disc or joint lesion can be seen." 11 It was Ms Cheetham's observation that the plaintiff, at this stage, had a "right short leg" which, she explained, meant that his right iliac crest had been twisted backwards and was higher than his left. This she decided that she needed to adjust, along with his back at the T6 and T9 levels, before commencing work on his neck. After two treatments he reported some improvement. 12 Upon the basis of this evidence, I am satisfied that the plaintiff did not have any serious underlying abnormality or disability which could be said to have been the effective cause of his current disabilities. 13 It may well be that he was predisposed to back injury, and that he may have run into difficulties in later life if he continued to undertake manual labour. It is, however, clear that he was free, pre-accident, of any form of disc lesion. Otherwise, as later observed, his predisposition has some relevance in relation to the calculation of damages for future economic loss. 14 The plaintiff had, additionally, suffered from some bouts of depression reactive to the break up of his marriage in about 1997 or 1998, and to those occasions when he had been made redundant, or had earlier employment terminated in circumstances which he had considered to be unfair. He saw a psychiatrist, Dr Morice, for anxiety/depression in 1998, which it would appear was successfully treated with medication. Clearly this condition was not disabling or permanent. If allowed to remain in employment, and not burdened by financial concerns due to the loss of ability to work, there was no reason to suppose that it would have significantly interfered with his life. 15 The plaintiff's leisure activities before the accident, he said, had mainly been of the physical kind, including kayaking, bush walking, golf and woodwork. He also said that he had enjoyed social contact, including that with his children.

(b) POST ACCIDENT 16 As a result of his fall, the plaintiff was admitted to Bowral Hospital, where he remained for 3 days. A plain x-ray, taken on 20 May 1999, was reported as showing: " PELVIS AND LEFT FEMUR A fracture extends through the central portion of the left acetabulum superiorly and medially towards the mid to upper portion of the left sacro-iliac joint. There is minimal separation at the inferior aspect of the fracture. A linear fusion defect is visible from the posterior elements of the S1 which is unlikely to be of any clinical significance. No other bone or joint abnormality is seen. LUMBO-SACRAL SPINE No fracture or further abnormality is seen. The discs are well preserved in height and the alignment appears normal." 17 The plaintiff's immediate care was undertaken by Dr Leicester, who saw him at various times up to 18 February 2000, for treatment of pain in his hip joint. Subsequently, the plaintiff received treatment from his general practitioner, from physiotherapists, massage therapists, and a reflexologist, as well as from Ms Cheetham. Various medications have been prescribed for pain relief and depression including Paracetamol, Panadeine Forte, Celebrex, Norflex, Zoloft, Avanza, Tarmal and Somac, and from time to time hydrotherapy has been used. 18 The plaintiff next saw Ms Cheetham after the accident on 27 May 1999, at which time she noticed that now it was the left side of his pelvis which was lower than the right, and that the area which required attention had moved from his thoracic spine to the lumbar/sacrociliac region. Thereafter she continued to treat him with manipulative therapy on a regular basis until May 2000, at which time she judged that he was not making any further progress. 19 Her treatment of him resumed in October 2000, at the request of the massage therapist who the plaintiff had also been seeing on a regular basis. It continued until October 2001, by which time she was of the view that while such improvement as could occur had occurred, weekly or fortnightly treatment for the rest of the plaintiff's life would maintain his mobility. She did not expect any change in his daily level of pain. 20 Apart from these chiropractic treatments, the physiotherapy and various forms of massage and related treatments which have been provided, the plaintiff has been the subject of regular review by medical practitioners, in the course of which his underlying condition has been investigated through plain x-rays, CT Scans and Magnetic Resonance Imaging. 21 It is convenient to make reference to two such investigations, since they are of relevance to the emergence of the plaintiff's back symptoms. 22 On 2 November 1999, CT scans were performed on the plaintiff's lumbar spine from L3 to the sacrum. They were reported as showing: " At the L3/4 level the disc outline is normal. The apophyseal joints are normal. At the L4/5 level there is an appearance strongly suggestive of an extreme lateral left sided disc protrusion. This is best appreciated on scans 2.005 and 3.013. The apophyseal joints are within normal limits. At the L5/S1 level there is a posterior disc bulge. The apophyseal joints demonstrate degenerative changes on the left side." 23 This is a significantly different finding from the x-rays taken immediately after the fall. Whether that can be explained as the product of a process that had only begun to develop in the fall and was not immediately observable, or whether better definition was achieved by CT scanning, was not addressed. However, no other injury or intervening event was shown to have occurred, and in the light of the plaintiff's complaints of continuing serious back pain from the time of the fall, I am persuaded that its origin lies in that event. 24 On 31 October 2001, further radiology was reported as showing: " LUMBOSACRAL SPINE XRAY There is slight narrowing of the L5/S1 disc space. There is no evidence of spondylolisthesis or spondylolysis. There are four lumbar type vertebral bodies, the lower most has been labelled L5. MRI-LUMBOSACRAL SPINE There is desiccation of the L5/S1 disc. There is broadbased bulging of this disc. Peripheral increased signal in the disc is suggestive of an annular tear. The intervertebral foramina are widely patent. The nerve roots and ganglia are not compressed or effaced and there is not evidence of marked spinal canal stenosis. CONCLUSION Broadbased bulging of a degenerate L5/S1 disc as described with a small annular tear noted. Slight indentation of the thecal sac at this level. No evidence of nerve root or ganglion effacement as described." 25 These studies confirm the earlier findings and are of relevance for the most recent expert opinion concerning the plaintiff's condition and prognosis. To the expert evidence I next turn. 26 The plaintiff's physical condition has been reviewed by Drs Evans, Searle and Russo, and by Associate Professor Champion; Reviews were also undertaken by several doctors at the request of the defendant, and of those practitioners, reports were tendered from Dr Parameswaran and from Associate Professor Jones. 27 In his report of 2 November 1999, Dr Evans noted that the pre-fall x-rays had revealed some mild abnormalities in the lumbar-sacral spine, but said that these would not have caused pain. It was his assessment that the fracture of the pelvis would have damaged the articular cartilage, and that there was evidence of stiffening of passive movement of the hip joint. He expected that it was likely that osteoarthritis would develop in the joint, and thought it uncertain that the plaintiff would ever be free of hip pain and stiffness. 28 In a separate report of 3 November 1999, he noted that the CT scan taken on the previous day was "strongly suggestive of an extreme lateral left sided disc protrusion" at the L4/L5 level, and also showed a posterior disc bulge at L5/S1, with degeneration of the left facet joint at the same level. The plaintiff's lower back pain he said "most likely arises from the damage to one or both of the L4/5 or L5/S1 discs." 29 Dr Evans later reported that a CT scan taken in June 2000, and a MRI scan in August of that year, did not take the matter any further in that they did not reveal, at that stage, the onset of osteoarthritis in the hip joint. 30 Dr Searle, who examined the plaintiff on a number of subsequent occasions, between 9 October 2000 and 11 November 2001, reviewed the radiology. With the benefit of that information and of his own findings, he reported, on 15 October 2000: " The fall on 20/5/99 caused a fracture of the pelvis involving the left hip, a contusion of the ischium, lumbar ligament strains and at least one lumbar intervertebral disc lesion, possibly two. The ongoing symptoms from these injuries are permanent and cause a moderately severe degree of disability. Because of this he is permanently unfit for his pre-injury occupation, and is also unfit for any form of work which requires prolonged sitting or prolonged standing, lifting or repeated bending, going up or down steps or stairs, carrying weights, having average agility, or regularly travelling moderate distances. With regard to prognosis the symptoms and disability in the lumbar spine will gradually increase with the passage of time because degenerative changes are inevitable at the injured levels and will progress steadily. The left hip joint problems will probably not change for a long time but as the fracture line involved the joint surface it is possible that he will develop arthritic changes in that hip later in life." 31 If the plaintiff's back symptoms became sufficiently severe, then Dr Searle though he may require a decompressive laminectomy. 32 When Dr Searle saw him on 26 September 2001, he reported that the plaintiff's ongoing symptoms form his back, pelvis and hip injuries where "much worse" than when he had seen him a year previously. He said that his prognosis was also "worse". He thought that he was "unfit for all forms of work and require(d) more definite treatment". 33 On 11 November 2001, he reported that the most recent MRI film of the hip (taken 31 October 2001) showed "some narrowing of the weight-bearing area of the joint space superiorly confirming early arthritic change"; while the MRI film on the lumbar and sacral spine showed "narrowing and darkening (desiccation/degeneration) of the L5/S1 disc with a broad based protrusion of the disc and a tear of the annulus." Those films he said confirmed his earlier opinion, and he recommended that the plaintiff attend a pain management clinic. 34 Associate Professor Champion, who saw the plaintiff on 26 April 2001, reported that he thought that there was "quite a reasonable probability that he will ultimately require replacement arthroplasty because of post injury osteoarthritis" (of the left hip). Although noting that the plaintiff might have had a slight vulnerability in the lumbar spine before the fall, he stated that he had not displayed any such vulnerability in relation to his hip. 35 The important consequence of the hip injury he described as "damage to the articular surface of the left acetabulum with apparent early loss of cartilage and sub articular bone reaction"; while the consequences of the lumbar sacral spinal injury he thought was "activation of symptomatic osteoarthritis at the left L5-S1 apophyseal joint, and probably a contribution to internal disc disruption at L5-S1 and to the apparent left lateral disc protrusion at L4-5". 36 As to the prognosis and treatment possibilities he reported: " In regard to treatment, it is probable that Mr Pryor would benefit from apophyseal joint injection of local anaesthetic and corticosteroid on the left at L5-S1. The discogenic components to low back pain are unfortunately difficult to relieve and these are best dealt with by usual pain management/rehabilitation processes including some regular analgesia. It is the left hip which is of more concern in the longer term, and this is not really amenable to any treatment apart from attention to posture, range of movement exercises, avoidance of undue biomechanical stresses, and the possibility of some long term benefit form nonsteroidal anti inflammatory drugs, glucosamine and chondroitin, and physiotherapy. In regard to the prognosis in the longer term, he will probably experience life long pain in his low back with periods of relative quiescence, but easy provocation of more intense pain. At the left hip, more probably than not there will be gradually progressive osteoarthritis accompanied by further painful restriction of function and my expectation is that sometime within ten or twelve years he will be a serious candidate for replacement arthroplasty. The rate of such progression is extremely difficult to forecast. As the disorder at the left hip progresses, he will very likely come to a point of needing walking aids such as a cane, and more analgesia and therapy." 37 Dr Russo, from the Hunter Pain Clinic, saw the plaintiff on 14 December 2001. In relation to his back a diagnosis was made of "lumbar discogenic pain secondary to traumatic degenerative disc disease" for which he said no cure currently exists. He thought it likely that the plaintiff would have life long symptoms, and that his condition would deteriorate with age. He also thought it likely that the plaintiff would come to early hip replacement. Provocative discography, which he arranged, confirmed that the L5/S1 disc was the plaintiff's pain generator, and as a consequence, Dr Russo reported that he could be considered for intradiscal electrothermoplasty (IDET), which has provided pain relief for a significant number of patients. 38 Dr McMurdo who reviewed the plaintiff, on 5 April 2001, reported that he "satisfied the requirements for the diagnosis of adjustment disorder with depression periodically", which he considered was attributable to the injuries sustained in the May 1999 fall. He did not consider that he needed formal psychiatric treatment, observing that "the most important management (for him) is to improve his agility, reduce pain, and enable him to engage in rewarding recreational pursuits." He said that there was "a possibility that he will become more significantly depressed in the future if his physical health deteriorates." 39 Dr Parameswaran, who saw the plaintiff in May 2001, confirmed the hip injury, which he agreed appeared to be "leading to secondary osteoarthritis at present." He did not think that chiropractic treatment or massage therapy was going to help him, and he agreed that at some stage he may require a total hip replacement. He did not express any opinion in relation to the plaintiff's back beyond noting the radiologist's findings of 2 November 1999, presumably because, it would seem, he found no restriction in movement or disability other than slight pain at the extreme of movements. This is a somewhat surprising observation in the light of the radiology, and the findings of the other medical experts. Somewhat unhelpfully, he expressed no view in relation to the plaintiff's ability to work. Otherwise, his only observation of relevance, for the assessment of damages, was his suggestion that the plaintiff "may require domestic assistance for two hours once a fortnight" - to mow his lawn and to do any heavy household chores. 40 Associate Professor Jones who also saw the plaintiff in May 2001, accepted that his symptoms of pain in his lower back, left hip and groin were "related to attitudinal changes particularly in the left hip and to a lesser extent in the low back which (have) a nexus to" the fall. The reduction of his work hours to the 29 hours per week, which he was working at that time, he thought to be an "appropriate prescription". He thought that "heavy household maintenance would be precluded"; that "lawn mowing would most appropriately be performed for him"; that he should not climb ladders; and that heavy household cleaning, which could consume about 3 hours per month, "may best be performed for him". He similarly did not think that "hands on treatment" would cure him, and he recognised that were there likely to be further attritional changes in his left hip, then surgery may be required. 41 Neither of these specialists had the benefit of any later review, nor did they see the later radiology and tests which were available to Dr Searle and Dr Russo, who alone of the medical witnesses had seen the plaintiff after the reported deterioration which took him out of his work with Magnet Mart in August 2001. 42 As a consequence, their reports are of less value for current purposes than those of Doctors Searle and Russo. The defendant did not seek to contradict Dr McMurdo, and I see no reason to doubt his opinion. 43 The plaintiff appears to have provided a consistent account of his pre and post accident history both in his evidence to this Court, and when examined by the various medical witnesses whose reports I have noted. In summary he said that:

(a) any back and neck pain before the fall had not prevented him from working;

(b) before the accident he had enjoyed working, particularly the people contact associated with it;

(c) immediately after the fall he had a very sore hip and back; neither of which resolved;

(d) he had been unable to continue employment with the defendant because the work there was all of a heavy nature;

(e) he had initially coped, with the support of other staff, with the work at Magnet Mart although he had a lot of troubles particularly with his hip;

(f) he had found it necessary to cease the massage therapy and chiropractic treatment because he could not afford it, even though he found it helpful;

(g) he had reduced his hours with Magnet Mart because he was no longer coping with the pain;

(h) at about the time he saw Dr McMurdo, in April 2001, he found himself getting very depressed by reason of his limitations - that depression, he said, continues;

(i) after doing work at Magnet Mart, he had sold his home in Mittagong and moved to a more affordable home in Kurri Kurri; since by this time he was dependant on the Newstart allowance and was unable to meet the housing loan repayments;

(j) he is socially isolated, and has not been able to participate in any of his pre accident recreational activities, save for some woodwork and use of his personal computer;

(k) he has trouble driving a motor vehicle any distance, in walking uphill or on uneven ground, sitting for any length of time, carrying weights, bending, sleeping and standing in queues;

(l) he also has trouble with house and yard work, particularly with vacuuming, gardening and lawn mowing, although he occasionally mows the lawns; and that

(m) while his hip varies from day to day, there are very few days which could be said to be good; his back he said, similarly, is very painful - by reason of his pain he said that he probably lost 2 days per week through having to remain in bed. 44 Although the presence of some underlying abnormality in the plaintiff's back, and of some earlier history of back and neck problems was initially of concern, I am persuaded, in the light of the evidence of the plaintiff who I found to be a truthful witness, and in the light of the medical reports, that his current problems are directly the result of the fall at work. In this regard there was no prior evidence of any abnormality in the hip, and radiology from the time of the accident, in one form or another, has conformed the presence of a fracture and its progression. 45 In relation to the plaintiff's back, the pre accident radiology appears to have showed nothing of any particular clinical significance, and certainly did not disclose any form of disc lesion. The existence of disc disruptions at L4/5 and L5/S1 were however apparent from November 1999, that is, within 5 months of the fall, and it is evident from recent testing that the L5/S1 disc is the pain generator. 46 In these circumstances, I accept that the plaintiff's current disabilities were caused by the work injury, and that he is entitled to have his damages assessed accordingly. In undertaking that exercise I have had regard to the Workcase report prepared for the plaintiff's solicitors.

3. ASSESSMENT OF DAMAGES 47 The parties very helpfully and responsibly reached substantial agreement in relation to the assessment of damages, either as to the precise amount to be included under certain heads, or as to the components to be used for calculating the remaining heads. 48 The agreed components were as follows:

(a) Past economic loss $43,500.00 (b) Fox v Wood $ 448.00 (c) Past out of pocket expenses $26,513.60 (d) Workers Compensation pay back $23,522.60 49 The agreed component for the other calculations, which are to be made, were was follows:

(a) Discount for contingencies 15% (b) Life expectancy 32 years (c) Current comparable earnings had the plaintiff maintained his full time employment with the defendant, and his weekend job with Magnet Mart $600 per week, net (d) Multipler for 18.5 years to age 65 635.6 (e) Multipler for life expectancy of 32 years 845 (f) Superannuation loss to be calculated at 9% of gross income lost per week (g) Costs of future medication $15 per week (h) Non economic loss current maximum amount available by way of modified common law damages $236,450 50 I turn to the heads of damage for which there was no agreement, by reference to those considerations.

Non Economic Loss 51 The plaintiff submitted that the case was one where the degree of permanent impairment fell at the level of 40%, while the percentage adopted by the defendant was 35%. At either level the threshold for an award was exceeded. Having regard to the fact that this plaintiff has suffered a combination of disc injury at 2 levels, as well as serious hip injury, which will only deteriorate, and which together have seriously disabled him, I find that the appropriate percentage is that advanced by the plaintiff. Upon that basis this head of damages is assessed at $94,580.

Future Economic Loss 52 The plaintiff submitted that the residual earning capacity was $150 net, upon which basis his current loss would be $450 net per week. The defendant submitted that the residual was $400 per week, with a net loss, accordingly of $200 net per week. 53 In essence, the plaintiff's submission turned upon the opinions previously noted, which were provided by Doctors Evans, Searle, Russo and Parameswaran, and Associate Professors Champion and Jones, as to the likely deterioration in the plaintiff's condition. That deterioration and his present restrictions, which I accept are substantial, it was put have inevitable serious effects upon a man of limited education, whose work had mainly been in the area of heavy manual labour, and who is unlikely now to pick up any clerical or other skills which might sound in future employment of any significant or full time kind. 54 The defendant however submitted that the plaintiff's prospects of securing other forms of employment, of a non manual or labouring kind, were not quite so bleak as submitted by his counsel, since he had prior experience in computer sales which had seen him giving advice concerning software and the like, and since he had expressed an interest in obtaining a qualification as a forklift examiner, and/or in computer studies. Further, it submitted that it was improbable in the extreme that the plaintiff would have elected to continue in both of the forms of heavy employment in which he engaged before his accident, until the age of 65 years. It follows, so the submission went, that there should be some additional adjustment, beyond the conventional discount, for a later reduction in the average weekly loss which was to be assumed for assessment purposes, and which was based upon current comparable earnings in both pre accident jobs. 55 In my view there is some merit in this submission by the defendant. First, I consider it improbable in the extreme that the plaintiff would have elected to continue to work both jobs until he retired at age 65. It is more probable than not that there would have been some reduction in his work hours, both because of the heavy nature of the work involved, and because of the almost inevitable need for him to spend more time on leisure activities as he aged, and as his financial commitments to his family diminished. On the other hand there is the balancing consideration that he may have risen to a supervisory position in either or both jobs with some increase in salary and less requirement for physical exertion. 56 Secondly, there is the fact that he has proved himself not to be unintelligent or work shy. Nor, it seems, has he given up all hope or desire of undertaking some further training, and of returning to some form of work so as to occupy his days and so as to provide the social contact which he previously enjoyed. 57 Necessarily, his residual capacity is limited to light sedentary work of a clerical or semi clerical nature, possibly in sales or allied or supporting positions. Whether he can return to such work will depend upon a degree of dedication and effort on his part, but upon any view for him to achieve even a part time position would enhance his well being, particularly from an emotional point of view. It will inevitably depend upon his ability to compete upon the open labour market, and upon the reluctance, in real life, irrespective of anti discrimination legislation, which some employers have to take on staff with physical problems arising from earlier injuries. 58 Doing the best I can to allow for these considerations, I determine that the current weekly loss is $350 per week net. Upon this basis, and with a conventional discount for contingencies of 15%, I assess this head of damages as follows: $350.00 x 635.6 x 85/100 = $189,091.

Future Superannuation Loss 59 Having regard to the findings in relation to future economic loss, this head of damage may be assessed upon the basis of a gross weekly loss in the order of $415. Applying the agreed multiplier, with a 15% discount for contingencies, the loss is assessed as follows: $415 x 9/100 x 635.6 x 85/100 = $20,179.00 Future Out of Pocket Expenses 60 The parties agreed that there could be no precise calculation made since there was an inevitable uncertainty as to whether, and when, the plaintiff would undergo surgery, or further invasive treatment, and what its outcome might be, and also whether he would continue to gain any benefit from chiropractic or massage therapy. 61 The plaintiff contended for a lump sum in the order of $40,000, to cover the possible future expenses for surgical intervention as well as the continuing need for medication (the cost of which would increase once these proceedings were resolved from $3.00 per week to $15.00 per week), and for massage and chiropractic treatment as occasion required. 62 The defendant contended for a lump sum in the order of $25,000 taking into account a discount for the uncertainty of whether the plaintiff would undergo surgery and the need for a deferral factor, referable to the fact that it was unlikely that the plaintiff would go to surgery until well into the future, and then only when he found it imperative to do so. In that regard it points to the reluctance which he conceded that he has at this stage to risk any such intervention. 63 There was evidence in relation to the costs of future treatment as follows:

(a) Total hip replacement - $15,000 per Dr Searle, and $20,000 to $30,000 per Associate Professor Chapman;

(b) Decompressive laminectomy, per Dr Searle, $7,500;

(f) reflexology (exercise and soft tissue treatment) $55 to $75 per session; and

(g) medication at $15 per week. 64 I considerate more probable than not that the plaintiff will need some intervention for pain relief in relation to his back, and that he will also need a hip replacement in later life. In the meantime, he will need medication and massage/chiropractic treatment to remain mobile. The recurring expenses are likely to be considerable when extended over the remaining life expectancy of the plaintiff, even allowing for moderate resort to massage, chiropractic treatment and hydrotherapy. Doing the best I can, and allowing for a deferral of the major expenses for surgical intervention, and for contingencies as to the treatment which will be used, I propose to allow $33,000.00 for this head of loss.

(a) Future 65 The parties agreed that this should be calculated solely by reference to commercially provided assistance, there being no reason to suppose that any gratuitous assistance would be provided by family members in excess of the threshold. 66 It was the plaintiff's submission that he would need 5 hours per week for the next 20 years, at $20 per hour, for assistance with heavy household work, window cleaning, lawn mowing and gardening. Counsel chose the lesser period of 20 years upon the basis that, had the plaintiff continued in heavy labouring work, he may have needed assistance irrespective of the accident. The loss so calculated would be $66,640. 67 The defendant however approached the calculation upon the basis that an average of 1.5 hours per week commercial assistance was needed at $23 per hour for the remainder of the plaintiff's life expectancy. The loss so calculated would be $29,152. 68 In my view, having regard to the plaintiff's evidence and the medical evidence, and the Workcase assessment, the plaintiff will need some regular assistance both in the house and in the garden, which is likely to increase as he gets older. He will also need assistance on an irregular basis with repairs, cleaning of gutters and windows and the like. I regard the plaintiff's concession as to the calculation being made for 20 years rather than 32 years, and upon a base rate of $20 per hour rather than $23 per hour, eminently fair. It is not possible to determine precisely when his need will increase, or to approach the matter other than in a very general way, averaging out, on a weekly basis, the time required for the assistance. 69 I propose to assess the loss upon the basis of 4 hours per week, at $20 per hour, for 20 years, and by reference to a multiplier for that period of 666.4. So calculated, the loss is $80 x 666.4 = $53,312.00

(b) Past 70 The plaintiff contended for a sum in the order of $1,000 to $1,150, while the defendant submitted that an award of $500 would sufficiently compensate the plaintiff for the limited assistance which he has needed to date. These calculations were based upon the plaintiff having had to pay for lawn mowing at a cost of $25 every 3 weeks, on average, from May 1999 to date. The difference between the parties is relatively insignificant, although some adjustment is appropriate for the fact that the plaintiff and/or his sister have done some of this work, and for the fact that the plaintiff was able to carry out some physical work during his time with Magnet Mart. I allow $1,000 for this loss.

SUMMARY 71 In summary, subject to any adjustment for interest on any past losses which may properly be claimed pursuant to the Workers Compensation Act, I assess the plaintiff's damages as follows:

Non Economic Loss $ 94,580.00 $ 461,624.00

Less Workers Compensation Payback $ 23,523.00 $ 438,101.00

72 I will hear further submissions in relation to any claim for interest, and in relation to the costs of the proceedings, at which time a verdict and judgment will be formally recorded.

• 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20037/01 Harold Keith Pryor v Vibro Products Pty Limited

1 HIS HONOUR: I note that no claim is made for interest on any past losses, it being accepted that there is no entitlement relevantly established under the Workers Compensation Act for those claims. It is also, however, agreed that a claim for past superannuation was previously overlooked. As a consequence the damages should be increased by the sum of $5,429 in round terms. 2 There will be a verdict and judgment for the plaintiff accordingly in the sum of $443,530. 3 The only outstanding question is that of costs. The defendant submits that the matter should have properly been brought in the District Court; however, in that regard, so far as I am aware, there was no application at any relevant time to transfer the proceedings to that court, it being a matter which properly arose for consideration at the status conference and at various points during the management programme which now exists.

4 The amount of damages recorded is significant, and it was really only in recent times that there has been significant clarity gained in relation to the extent of the spinal injury, in particular, but also in relation to the extent to which there has been development of osteoarthritis in relation to the hip injury.

5 There was a prospect of the plaintiff being totally incapacitated, that is, of having no future residual economic capacity. Had that been the final outcome, then clearly the damages would have been significantly higher. 6 In all of these circumstances, I take the view that it was appropriate for the matter to be brought in the Supreme Court. Accordingly, I will order that the defendant pay the plaintiff's costs on a party party basis according to Supreme Court rates. **********

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