Rajcevic v Downing

CATCHWORDS: NEGLIGENCE - motor accident - the plaintiff was a passenger in rear of vehicle being driven on a building site - the driver took an unsafe shortcut involving a foreseeable risk of injury - contributory negligence not proven in that no seatbelt was available for the plaintiff's use - DAMAGES - assessment of past lost earnings and diminution of future earning capacity having regard to pre-existing orthopaedic and psychological conditions

LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 112(1): s 126, s 131 Workers Compensation Act 1987 (NSW): s 151Z(2)

CASES CITED: Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 at [47] - [48]

Cedomir Rajcevic (Plaintiff) PARTIES: Greg Downing (First defendant) Abigroup Contractors Pty Ltd (Second defendant)

COUNSEL: Mr J Keesing (Plaintiff) Mr R O'Keefe (Defendants)

SOLICITORS: Petrovich Accident Lawyers (Plaintiff) Rankin Nathan Lawyers (Defendants)

The proceedings and the issues

1. Cedomir Rajcevic was injured in a motor accident on 7 April 2005 when he was a passenger seated in the rear of a vehicle driven by the first defendant, Greg Downing. The second defendant, Abigroup Contractors, was the registered owner of the vehicle. Mr Rajcevic was working for Abigroup on hire from his employer, Telum Pty Ltd. He commenced these proceedings for damages. The defendants denied any breach of duty and alleged contributory negligence, asserting that Mr Rajcevic had failed to wear the seat belt provided.

2. Mr Rajcevic alleged that he sustained injuries to his head, neck and back, resulting in continuing and permanently disabling symptoms, and that he also developed a reactive psychological condition that persists. He has not worked since the accident and alleges that he is effectively unemployable for the rest of his working life. The defendants deny that Mr Rajcevic suffered any major or permanently disabling injury. They say that the effects of the accident were minor and temporary, and affected his earning capacity for a short period only.

3. The damages claimed by Mr Rajcevic were for out-of-pocket expenses and economic loss (as to the past and for the future). A claim for domestic assistance was abandoned. He is not entitled to damages for non-economic loss. He was assessed by the Medical Assessment Service (MAS) of the Motor Accidents Authority of NSW as having no permanent impairment as a result of his injuries. He did not, therefore, satisfy the requisite more than 10% threshold for an award of damages for non-economic loss: s 131 of the Motor Accidents Compensation Act 1999.

4. The principal issues for determination were: 4.1 Was Mr Downing negligent? 4.2 Was Mr Rajcevic guilty of contributory negligence? 4.3 What injuries did Mr Rajcevic suffer? 4.4 What continuing physical problems does Mr Rajcevic have? 4.5 Did Mr Rajcevic sustain a psychological condition, and if so what has the nature, effect and extent of that condition been? 4.6 What earnings did Mr Rajcevic lose and has he sustained any diminution of his future earning capacity. 4.7 What is an appropriate amount for total damages? 4.8 What adjustments are required under s 151Z of the Workers Compensation Act 1987? The accident on 7 April 2005
5. The accident on 7 April 2005 occurred during the construction of the M7 motorway where Mr Rajcevic had been working for the principal contractor, Abigroup, on hire from his employer, for about 9 weeks. Mr Rajcevic, a man of Serbian origins, had limited English, and the practice had been that a fellow Serbian, Mr Opacic, who was a member of his work team and spoke good English, acted as interpreter for him.

On the morning of his accident, Mr Rajcevic arrived at work at about 6.20am and went to the marshalling area where there were some sheds. The foreman, Mr Tony Murphy, gave him and other fellow workers their instructions for the day, including where they would be working and what tools were required. The work team to which Mr Rajcevic belonged was directed to a Toyota Land Cruiser, known as a 'Troop Carrier' by which they were to be conveyed to the work site for that day. They had been working at this particular site for about two weeks.

The seat configuration in the Troop Carrier consisted of two front seats that were fitted with seat belts, and two long bench seats in the rear that ran lengthways down the two sides facing the middle, with room for 3 passengers on either side. There was conflicting evidence as to whether seat belts were fitted to the rear seats, and if so how many, and their location.

The men placed their tools on the floor in the rear of the Troop Carrier and entered the vehicle and sat down on the two benches. They set off for the work site at about 7.00am. There was a dispute as to how many persons were in the rear, but I am satisfied there were 5 men, three on the passenger side and two on the driver's side, all of whom were wearing hard hats. Mr Opacic sat immediately behind the front passenger seat. He said that there were no seat belts fitted on the seats in the back. Mr Rajcevic sat immediately to his right. He was not wearing a seat belt and also said none were fitted to the seats in the back. On the right of Mr Rajcevic sat a man identified only as Richie, a Portugese man. Opposite Mr Opacic, sitting immediately behind the driver was Mr Maricic, also of Serbian origins, whose English was also limited. He also gave evidence that he was not wearing a seatbelt because there were no seatbelts fitted in the rear. An unidentified man was sitting on his left.

Their driver on that day, as on previous days, was the leading hand, Mr Downing. They knew him as a fast and rough driver, who had little regard for others in the Troop Carrier, and took delight in scaring them. This day was no different. Instead of taking the longer, established route to the work site, over even ground, he took a shortcut that involved driving over a pile of loose gravel left by an excavator, described by some as half a metre high. As the Troop Carrier headed for the pile at a fast pace, there were complaints from those in the back who could speak good English such as, "You can't go up there", "Don't go that way" and "Stop, stop". Mr Downing ignored these entreaties and continued towards the pile of gravel. The three witnesses called to describe the incident gave a consistent account of what then occurred. As the Troop Carrier neared the pile of dirt Mr Downing slowed down, then as the rear wheels reached the loose gravel, he dropped gears and suddenly accelerated. The vehicle jumped, throwing each of the passengers in the rear out of his seat. . Mr Maricic, who saw the danger coming, was sitting behind the driver's seat and was able to steady himself by hanging on to that seat. Mr Opacic hit his head on the roof then came back down onto the seat. Mr Rajcevic also hit his head on the roof, but he then fell down between the seats onto the tools on the floor. He landed awkwardly on his back and backside. He felt immediate pain in his head and back, and screamed out. He was unable to move. Despite shouts from the others for Mr Downing to stop, he just laughed and continued on to the work site.

Upon arrival at the work site, Mr Rajcevic was assisted from the Troop Carrier, and sat down. Within a few minutes, the foreman, Mr Murphy arrived, and Mr Rajcevic was assisted into his car, and was taken back to the sheds at the marshalling area. He was given ice for his neck, and then taken by someone from Telum to the doctor.

Mr Downing was taken off driving duties from that day, and after about two weeks was not seen again at the worksite. He told Mr Maricic that he had been forced to resign.

Were the defendants negligent? 12. When invited to address on liability, counsel for the defendants said that primary liability remained in issue, 'but we don't have a lot to say on that issue'.

13. In my view the evidence conclusively established negligence on the part of Mr Downing. Taking the shortcut he did, which involved driving over a pile of loose gravel, in a manner that foreseeably gave rise to a risk of injury to the passengers in the rear, was about as clear a case of negligence as I have seen. As a result of that negligence Mr Rajcevic was injured.

14. The second defendant is liable for the negligence of Mr Downing, as statutory principal: s 112(1) of the Motor Accidents Compensation Act 1999.

15. There will, therefore, be a verdict for the plaintiff against both defendants.

Was Mr Rajcevic guilty of contributory negligence? 16. There was a single allegation of contributory negligence: that Mr Rajcevic failed to wear the seatbelt provided. The allegation presupposed that a seatbelt was in fact available for Mr Rajcevic's use, something that he adamantly disputed, and as to which he was corroborated by both Mr Opacic and Mr Maricic. I can see no basis for disbelieving them. Mr Opacic, in particular, was an impressive witness who gave straightforward, unembellished, but compelling evidence.

17. The evidence relied on by the defence that gave rise to any suggestion that seatbelts were fitted in the rear of the troop carrier was equivocal at best, and at worst specious. Mr Mark Wilkin, the Abigroup Plant Manager responsible for maintenance and repair of vehicles and equipment on site, was unable to say what the position was on the day of the accident, as he did not inspect the Troop Carrier till 5 months later. Even then he was unable to recall how many seatbelts there were, and where they were located on the bench seats. The best he could do was surmise that belts were fitted on the day of the accident, because that was a condition of registration. The documentary evidence tendered did nothing to further the defendants' case.

18. In any event, I prefer the evidence of the plaintiff's witnesses on this issue, their version being consistent, contemporary and uncontradicted.
19. Counsel for the defendants submitted that I should draw the inference that a seat belt was available for Mr Rajcevic's use because the Troop Carrier had been registered prior to the accident, and Mr Wilkin observed some seat belts in the rear some 5 months after the accidents. In my view this was an eristic submission, as such an inference was clearly unable to be drawn.

20. The defendants failed to discharge the onus of proving contributory negligence. I am satisfied that Mr Rajcevic was not wearing a seatbelt at the time of his accident, for the simple reason that a seatbelt was not available. I find that Mr Rajcevic did not fail to take reasonable care for his own safety, as alleged, or at all.

21. The plaintiff is, therefore, entitled to damages without any reduction.

Contribution recoverable from the employer 22. Before turning to assess those damages, it is convenient at this point to deal with the question of the amount of contribution the defendants would be entitled to recover from the plaintiff's employer. Telum Pty Ltd, as a joint tortfeasor, for the purpose the adjustments required under s 151Z(2) of the Workers Compensation Act 1987 (NSW). The issues between the parties were whether the employer was in breach of its non-delegable duty of care to Mr Rajcevic. If so, there was a further dispute as to the extent of any contribution that would be required from the employer. It was submitted on behalf of the defendants' that the apportionment of the responsibility attributable to the employer should be 25%.

The defendants' case on this issue faced some problems. Firstly, the case particularised on their behalf was that the employer failed to ensure that the Troop Carrier in which its employees were conveyed was fitted with seat belts for their use and safety, or that it failed to make appropriate enquiries as to the availability of seat belts. This was a position that was inconsistent with their own case, namely that seat belts were fitted. It is a question as to whether a party in adversarial proceedings should be allowed to approbate and reprobate in this way. The point was not taken by counsel for the plaintiff. Second, a submission was made at the end of the hearing which in my view was not particularised, namely that Mr Opacic 'assumed the role of supervisor' for Mr Rajcevic, and in that role he should have informed the employer as to the absence of seat belts and the use of the Troop Carrier over rough ground. His failure to do so was negligence for which the employer was vicariously liable.

There were other allegations that were not the subject of particulars: that the employer failed to send a supervisor to the site to check on conditions, took no steps to induct employees, leaving that to Abigroup, and failed to provide safety training to its employees. Even if it could be said that leaving the responsibility for these matters to Abigroup was a breach of the employer's duty, which I doubt, no evidence was led that any training or induction would have included instructions as to the wearing of seat belts. But even if such instructions had been given, there were no seatbelts, and no causal link was established between the failure and the injuries suffered by the plaintiff.

I am not satisfied that Mr Opacic became the de facto supervisor of Mr Rajcevic. The only role he assumed was one that of interpreter. He cannot be said to have been under a duty of care to Mr Rajcevic for which the employer was vicariously liable.

The high point of the defendants' case was the inadequacy of the steps taken on the employer's part to inspect the site and the plant and equipment that Mr Rajcevic was required to use, or to adequately ascertain whether there were any problems at the site. The employer's representative did in fact talk to the workers on a regular basis, but only at the marshalling point, and only in a perfunctory way. He did not inspect the Troop Carrier, nor did he travel on it to the work site. In the proper discharge of these functions, it is probable that a reasonable employer in the discharge of its non-delegable duty of care would have discovered the propensity of Mr Downing to drive erratically and dangerously, and that there was a risk of injury due to the absence of seatbelts in the Troop Carrier, and taken appropriate steps to address that risk.

In assessing the relative culpability of the defendants' conduct, in contradistinction to the breach of duty on the part of the employer, I take into account, in particular, the behaviour of Mr Downing. He acted in blatant disregard for the safety of those fellow employees who were in the rear of the Troop Carrier. It is difficult for the employer of labour hired to another to undertake precautions against acts of casual negligence of this type. It follows that the defendants should bear the substantial majority of the responsibility for the plaintiff's accident and its consequences. I also take into account the obligations of Abigroup, as principal contractor with overall responsibility for the safety of the construction site, to take reasonable care in relation to all workmen on the site, including obligations as to induction, safety training and the like: Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23 at [47] - [48].

For these reasons, I find it is just and equitable that the amount of the contribution attributable to the employer, for the purposes of the adjustments required under s 151Z(2) of the Workers Compensation Act 1987 (NSW) should be assessed at 15%.

Mr Rajcevic was born in the former country of Yugoslavia on 2 June 1951. At the time of the accident he was nearly 54. He is now 56, nearly 57.

He alleges that as a result of the accident he suffered injuries to his head, back, neck, and shoulders, resulting in significant ongoing disabilities, a psychological condition, and an incapacity for work which, combined with his poor English and lack of skills has rendered him virtually unemployable for the remainder of his working life. It is the defendants' case that he suffered minor temporary symptoms from the accident, all of which resolved within months. His ongoing presentation is feigned and exaggerated, or the result of pre-existing conditions.

Although of Serbian background, Mr Rajcevic spent the first 40 years of his life in Croatia, where he was born, grew up, went to school, did national service in the army, worked, met his wife, married and had children, three daughters. Although he sought to suggest during his examination-in-chief that he had a consistent work history during that period, it emerged in cross-examination that it was in fact somewhat erratic. It is difficult to gauge precisely what he did by way of work in Croatia, because his memory of this period was selective, as with all of his evidence, which was fraught with exaggeration, obfuscation, prevarication and inconsistencies.

With the outbreak of civil war in that region, he fled with his family to Serbia in 1990, but there was little work available. He applied to migrate to Australia, and he arrived here as a refugee with his family in 1993. The civil war, the flight from Croatia to Serbia, the migration to Australia, and the arrival here without friends, wider family and the language were all traumatic events for Mr Rajcevic and his wife. I dwell on this period because of the consequences and their bearing upon the most likely future circumstances. Both Mr & Mrs Rajcevic suffered psychologically. In the case of Mrs Rajcevic her reaction was serious, sufficient for her to require significant medical treatment, including a period of hospitalisation. In the case of Mr Rajcevic, the psychological effects were not as severe, but his symptoms were sufficient to require medication, and impacted negatively on his capacity to work.

Upon arrival in Australia, Mr Rajcevic undertook the compulsory 510 hours of an English course, which he did not complete successfully. At the hearing he gave evidence through an interpreter, but it was evident from the way he answered questions, sometimes answering in English, and sometimes without waiting for a translation of the question, particularly when flustered, that he now has a reasonable capacity to converse in English. It was also clear, and conceded by his counsel, that he is not an unintelligent man, rather he is uneducated.

His first few years in this country were clearly difficult. His wife was suffering from a depressive condition, and there were three young children that needed care and supervision. Due to a combination of these responsibilities and his own psychological problems, he did not work for a number of years. His wife, who did not give evidence, began to improve in 1995, but it was not until 1997 that Mr Rajcevic sought employment. In April of that year he obtained a job as a labourer on a building site, but was unfortunately injured on his very first day when some scaffolding fell on him from the floor above where he was working. As a result of this accident he went off work and did not return to any form of gainful employment for 8 years, when he resumed working in 2005, a few months before the motor accident the subject of these proceedings.

It is necessary to look closely at what happened during those 8 years, as it also bears upon the most likely future circumstances, but for his injuries, and the assessment of any diminution of his future earning capacity. It was Mr Rajcevic's case, as it emerged, particularly in light of the cross-examination, that he was incapacitated for work as a result of the 1997 injury, which he alleged resulted in both orthopaedic and psychological problems, until early in 2003, when he was again fully fit to work in normal labouring duties.

He alleges that he fully recovered from his orthopaedic injuries, such that he was able to perform heavy jack-hammering work on a daily basis, and that his psychological conditions totally abated and he was a happy and confident man.

As I have already indicated, the assessment of the true effects of the motor accident on Mr Rajcevic's is complicated and obscured by his exaggeration of the consequences, and other obfuscation, prevarication and inconsistencies in his evidence. This was manifested not only in the witness box, but also by his presentation to doctors and in the histories he gave to them. There are many examples, a few of which will suffice: I have already adverted to his understating his capacity to understand English. His evidence as to the completion of the employment application to Telum was also implausible. It was clear that he misrepresented his history in that application, in particular his prior injury and his workers' compensation claim. That claim was also exaggerated. His presentation as ingenuous as to his investment property and tax returns was also unconvincing. He gave selective histories to doctors, in particular Dr Lee, but also to Dr Maxwell and Dr Lowy. It was established that he downplayed not only his pre-accident psychological history, but also the effect and extent of other problems bearing upon his employability and future capacity for work, such as his bowel problems.

His evidence must, therefore, be approached with caution and critically examined, especially where there is no corroboration. I have already noted that his wife did not give evidence.

What physical injuries did Mr Rajcevic sustain? 40. It was the plaintiff's case that he suffered serious and permanent injuries to his head, back, neck and shoulders, which resulted in permanent and ongoing symptoms of pain and restriction of movement. It was the defendants' contention that his injuries were minor and temporary, and that none of them involved other than soft tissue or ligamentous interference. The medical evidence on these matters was widely divergent, as too often seems to be the case in these types of claim.

At one extreme of the medical spectrum was Dr David Maxwell, an orthopaedic and spinal surgeon qualified on behalf of the defendants. In the opinion expressed by him, Mr Rajcevic had recovered from the soft tissue sprains sustained in the motor accident within 6 months, and was 'quite fit to undergo his previous work without restrictions'. He could find no pathological basis for Mr Rajcevic's ongoing symptoms and complaints.

Dr Lowy, a consultant physician also qualified on behalf of the defendants, provided a similar, but not so extreme, opinion. Noting the extent of unrelated degenerative disease in Mr Rajcevic's spine, Dr Lowy was prepared to accept that the jarring of the motor accident could have caused a temporary neck strain and aggravation of the pre-existing spinal vulnerability. However, these problems quickly resolved and Mr Rajcevic reverted to his 'pre-aggravation state' as demonstrated in the period immediately prior to the motor accident.

At the other end of the spectrum is Dr Peter Giblin, an orthopaedic surgeon qualified on behalf of the plaintiff, who diagnosed persisting soft tissue symptoms in Mr Rajcevic's neck and low back, which will remain susceptible to further injury as well as accelerated post traumatic degenerative change. He is permanently unfit for heavy labouring duties.

Dr Barold, another specialist qualified on behalf of the plaintiff was also supportive of ongoing symptoms attributable to the motor accident. He did, however, exclude any specific shoulder impairments. In his opinion, Mr Rajcevic suffered soft tissue mechanical strain injuries to his neck and lumbar spine. His 1997 neck and back injuries had resolved over some years, as he was asymptomatic by the time of the motor accident in 2005. The symptoms from the second accident persist and his expectation was that Mr Rajcevic would continue to experience periods of exacerbation of his symptoms for an indefinite period, rendering him unfit to return to his pre-accident manual work duties.

There are various other medical opinions, but other than that of Dr Drew Dixon, to whom I will come, none of them adds significantly to the picture outlined above and I do not propose to review their evidence here.

I have left Dr Dixon to last because I found him to be the most impressive of the medical experts and his opinion the most compelling. His reports are clear, well argued in some detail, and logical. He gave precise and persuasive oral evidence that was largely undiminished notwithstanding a vigorous cross-examination. Unlike other doctors, the history he obtained was accurate, noting that in the accident Mr Rajcevic not only hit his head on the roof of the vehicle, but also fell to the floor. He obtained a comprehensive history (accurate except as to one irrelevant detail concerning the time the plaintiff had worked prior to his 1997 accident), conducted a thorough examination of the plaintiff and a critical inspection of the radiological evidence. He also examined Mr Rajcevic relatively recently. Based on these investigations, Dr Dixon expressed the view that Mr Rajcevic suffered a jarring injury to his neck and has residual neck pain and stiffness, with bilateral shoulder brachalgia and subacromial bursitis clinically in his shoulders, more marked on the left with painful arcs on abduction. He also sustained a back strain injury and has residual lumbo-sacral facet arthralgia clinically with sciatic radiation to the upper thighs bilaterally. These conditions are causally related to the motor accident. There is, however, no neurological deficit in either lower limb. He is fit for light manual part time duties only, but not labouring work.

Dr Dixon's opinion was strenuously tested in cross-examination. He made some concessions: the bursitis in the shoulders might have been caused by the strenuous jack-hammering work Mr Rajcevic was doing, there is no cervical spine radiculopathy, and he has a chronic degenerative spinal condition. These matters were, however, factored into his opinion. In particular, Dr Dixon (who had a propensity to use the Royal plural) took into account both the 1997 injury and the nature of the pre-existing condition, and although they do have a continuing causative relationship with the ongoing symptoms, it is minor in comparison to the effects of the 2005 injury, which persist.

Did Mr Rajcevic sustain a psychological condition? 48. It was also part of Mr Rajcevic's case that he suffered a debilitating psychological condition as a result of the motor accident, the symptoms from which persist.

49. He placed reliance principally on the evidence of Dr Leonard Lee, a consultant medico-legal psychiatrist qualified by his solicitors. This doctor accepted Mr Rajcevic as genuine and diagnosed a major depression, which has reduced his fitness for work. Dr Lee provided a 5-page report that is lacking in detail and analysis. Not surprisingly his opinion came under attack when he gave oral evidence. He was forced to concede that he was not given an accurate history as to the pre-accident psychological problems suffered by Mr Rajcevic, and was unaware of the extent to which he had been taking anti-depressant medication. He was also unaware that another psychiatrist who spoke Serbian, Dr Chuchkovic, had diagnosed Mr Rajcevic in the years prior to the motor accident as suffering from chronic depression and post-traumatic stress. Dr Lee was asked whether it was likely Mr Rajcevic would recover spontaneously, without treatment, to which he responded that some people do, but it is 'a very contentious question' and he would need more information before commenting. He was, however, quite surprised by the failure by Mr Rajcevic to provide a true and accurate history. The true history indicated a particular psychological vulnerability to various stressors, including family problems and medical problems, and a predisposition to future psychiatric problems.

50. Dr Lee was not impressive. His initial opinion was compromised by an inaccurate history, and the concessions made in his oral evidence were unhelpful to the plaintiff, whose credit took another significant blow from his concealment of the true extent of his pre-accident psychological problems.

51. On the other hand, the psychiatric opinion called for the defendants, from Dr Kaplan, was also superficial and poorly reasoned. His opinion is based also influenced by subjective and irrelevant considerations, such as the fact that no-one else in the motor accident was seriously injured, and medical opinions from the defendants' doctors that there were no continuing physical problems, in particular Dr Maxwell's opinion that he was malingering.

52. In the result I am left largely unguided by the psychological evidence. (It was not surprising, in retrospect, to discover that counsel for the plaintiff said next to nothing about this issue in his submissions.) In the result, I am unable to conclude that Mr Rajcevic suffered other than a temporary psychological reaction from the accident, in the form of a depressive reaction. I am not satisfied, however, that the symptoms persisted for a prolonged period, nor can it be said that the condition adversely affected his ability to work to any significant extent. What I am able to conclude, however, is that Mr Rajcevic has a vulnerability to further depressive episodes in the future, unrelated to the motor accident, but attributable to his underlying predisposition to psychological problems which pre-existed that accident, but are rooted in his personality and the traumatic events associated with the civil war in Yugoslavia, and his uprooting from that country and his forced emigration to this country.

Out-of-pocket expenses 53. Past medical and other out-of-pocket expenses were agreed at $25,660.32, and it was not disputed that the plaintiff should recover these expenses.

54. A claim was made for future medical and other out-of-pocket expenses, for $6,881.60. This included allowances for GP expenses, psychological treatment and medication. The defendants say there is no need for any future expenses, and oppose any award of damages under this head.

55. Whilst having regard to my findings that there is no ongoing psychological condition, I am satisfied that there will be some future need for medication and for consultations with a general practitioner in connection with the ongoing orthopaedic problems, albeit minor. An appropriate allowance is $5,000.00.

Economic loss 56. Having accepted Dr Dixon's opinion, as set out above, that Mr Rajcevic has ongoing moderate disabilities in the back, neck and shoulders, he is entitled to damages for some lost earnings to date and in respect of a partial loss of his future earning capacity. The question now is, how much?

The claim for loss of past earnings was put on alternate bases, producing a range, plus occupational superannuation. The claim for future economic loss was also put on alternate bases, producing a range of $132,217 - $335,313, plus occupational superannuation. The calculations are set out in the Schedule of Losses and it is not necessary to set them out here. They were formulated having regard to payroll records from the employer relating to the pre-accident employment on the M7. One approach was to simply carry that rate of loss forward to the present time, and into the future. I reject that approach. The alternate approach was to adopt data from the report of Associate Professor Anathasou, and to calculate the loss of earnings and earning capacity by reference to probable earnings less an allowance for a residual earning capacity. Having regard to my findings, the second approach has more validity than the first.

The first issue requiring resolution is the proper calculation of Mr Rajcevic's net average weekly earnings on the M7 project, prior to his motor accident. The defendants dispute the calculation of $1,037.85 made on his behalf. They say that the proper net weekly figure was $850.00. The calculation made on their behalf assumes certain deductions for expenditure, including travel and work equipment for which claims were made by Mr Rajcevic in his tax returns. In my view that is an artificial approach, unreflective of his true loss on an ongoing basis. It is not possible to conclude that those deductions would have continued to be claimed, or were not one-off. I am satisfied, therefore, that the appropriate comparable net earnings figure for a calculation of his loss from the date of the motor accident until the end of the M7 project is a weekly amount of $1,037.85. His loss for that period was $24,371.37. The calculations are set out later in these reasons.

A different approach is required, however, for the period from 1 January 2006 until the present (120 weeks), and for the future, because I am unable to accept that Mr Rajcevic would have continued to work and earn, after conclusion of the M7 project, at the same rate and for the same level of earnings for the balance of his working life. There was no evidence that more work would have been available at that rate beyond the life of the M7 project at the end of 2005. Other factors also need to be taken into account, such as the plaintiff's erratic work history both in Croatia, and after his arrival in Australia, his susceptible psychological state, his susceptibility to back injury due to his spondylitic spine, his predisposition to bursitis from heavy labour, and his other health problems.

The essence of the issue is neatly articulated in the defendants' written submissions (at paras 46 - 48):

"If the court finds that the plaintiff's earning capacity has been affected by injuries and disabilities arising from the accident then the plaintiff's pre existing medical conditions and post accident medical conditions unrelated to the accident ought be taken into account and lead inevitably to a finding that such conditions would in any event have prevented him from working within a short period of time after April 2005.

The plaintiff's other disadvantages in the labour market must also be taken into account. The plaintiff had a poor work history, poor English language skills, a history of an earlier significant prior worker's compensation claim and a significant prior medical history including industrial deafness, headaches, dizziness, vertigo, shoulder, neck and back injuries, chronic depression and post traumatic stress disorder.

…It is unlikely that the plaintiff would have continued to work for Telum by the end of 2005 when the M7 project was completed. The plaintiff has not established that he would have been able to find further employment after that time. In fact his evidence was that during 2004 and 2005 he could not get work because of his prior work history and other disadvantages. This would have continued to be the case, particularly if the plaintiff had also developed a shoulder injury (bursitis) during 2005 that also had to be disclosed to any prospective employer."

For all these reasons, I am satisfied that the following assumptions about Mr Rajcevic's earning capacity from 1 January 2006, and for the future, accord with his most likely circumstances, but for his injuries: he would have continued working erratically till the age of 65 in the construction industry on a project by project basis or in some other unskilled occupation. The continuity and regularity of his work would have been interrupted, increasingly so as he aged, punctuated by periods off work and attended extended periods of unemployment, consistent with his pre-accident work history, and reflective of the difficulties he would have experienced in obtaining suitable employment, having regard to his pre-existing orthopaedic condition and predisposition to psychological breakdown, and his continuing general health problems. I find that the damages that would have been awarded are to be adjusted by reference to an 85% possibility that the events concerned might have occurred but for his injuries. The amount of damages for future economic loss is to be determined by reference to an 85% possibility that the events concerned might have occurred but for his injury: s 126 of the Motor Accidents Compensation Act 1999.

On that basis it is in my view appropriate to adopt the plaintiff's calculations, on the alternate basis, as to his past loss of earnings from 1 January 2006 to date (120 weeks), thus producing an amount of $90,252.00 for that period, and a total for the past of $114,623.37.

7.4.05 - 25.8.05 (20 -1 = 19 weeks) x $283.09 net = $ 5,378.71 25.8.05 - 31.12.05 (18.3 weeks) x $1,037.85 net = $18,992.66 1.1.06 - 21.4.08 (120 weeks) x $752.10 net = $90,252.00 $114,623.37

To this past loss of earnings must be added lost occupational superannuation at 9% of gross, calculated by taking 9% of the gross loss, a figure of $13,315.61, giving a total of $127,938.98. A further agreed amount of $9,183.00 must be added for tax paid on weekly workers' compensation payments (Fox v Wood). I therefore find that Mr Rajcevic suffered past economic loss in a total amount of $137,121.98.

Turning to the future, the defendants submitted that a buffer sum is appropriate. In my view, however, the better approach is to quantify the loss having regard to a notional net weekly loss. The scenario set out at 2(v)(f) of the plaintiff's Schedule of Losses most accurately reflects my view of his loss, having regard to the findings I have made, namely a loss of $132,217.00 ($242,992 - $110,775). This amount allows for a residual earning capacity, and is calculated at the 'Athanasou rate' with a graduated increasing capacity. It is discounted for 15% for vicissitudes. Such an amount is in my view appropriate to compensate Mr Rajcevic for his future loss of earning capacity.

I therefore find that Mr Rajcevic has suffered a diminution in his future earning capacity that I assess at $132,217.00.

Calculations as to total damages 66. The calculations as to damages are as set out in the Table below: Heads of Damage Damages Past out-of-pocket expenses $ 25,660.32 Future out-of-pocket expenses $ 5,000.00 Past economic loss $137,121.98 Future economic loss $132,217.00 Domestic assistance Claim abandoned Non-economic loss Not recoverable Total damages $299,999.30

67. I therefore find total damages in accordance with the total amount set out above in the Table.

Adjustments required under s 151Z of the Workers Compensation Act 1987 68. Before a verdict can be entered, the total damages assessed are to be reduced by 15% of the difference between those damages and the damages that would be recoverable against the employer. Those damages are to be assessed in accordance with Division 3 of the Workers Compensation Act 1987 (NSW): s 151Z(2)(d).

69. Given the findings I have made, the appropriate reduction is 15% of the difference between the total damages assessed the total damages the plaintiff would be entitled to under Part 5 of the Workers Compensation Act 1987 (NSW). This plaintiff would have no entitlement to damages under Part 5 of the Workers Compensation Act 1987 (NSW). The deduction is, therefore, 15% of $299,999.30, an amount of $44,999.90. The appropriate verdict is $254,999.40.

Disposition 70. I enter a verdict for the plaintiff for $254,999.40 and direct the entry of judgment accordingly.

71. Having regard to an offer of settlement made to the defendants by the plaintiff by way of a Calderbank letter, the parties agreed on the costs order. In accordance with that agreement, I order the defendants to pay the plaintiff's party/party costs; such costs to be assessed on the ordinary basis up to 26 February 2008 and thereafter on an indemnity basis.

Note: On 23 April 2008 I delivered preliminary Reasons for Judgment in which I made all relevant findings apart from the adjustments required under s 151Z of the Workers Compensation Act 1987 (NSW). I deferred the entry of verdicts and judgments pending argument on that issue, which took place today, 30 April 2008. Corrections to the Reasons were made under the slip rule, with the consent of the parties, to correct slips in paragraphs 3, 8, 35, 43 and 46. These final Reasons for Judgment incorporate those preliminary Reasons for Judgment and contain the adjustments required under s 151Z of the Workers Compensation Act 1987 (NSW), as to which the parties were in agreement, in paragraph 66.

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