Troy v T.J. Green Constructions Pty Ltd

Supreme Court of NSW|2004-07-02|Before: Hislop J, Mr J

CITATION : Troy v T.J. Green Constructions Pty Ltd [2004] NSWSC 115 HEARING DATE(S) : 14/04/2004, 15/04/2004, 16/04/2004, 19/04/2004, 21/06/2004 JUDGMENT DATE : 2 July 2004

JUDGMENT OF : Hislop J DECISION : 1. Verdict for the plaintiff against the defendant in the sum of $491,635.12; 2. Judgment for the plaintiff against the defendant in the sum of $364,391.94; 3. Verdict and judgment for the cross defendant on the cross claim; 4. The defendant to pay the costs of the plaintiff and the cross defendant.

CATCHWORDS : Tort - Negligence - Employer's duty of care - Identification of employer - Construction site - Head contractor not liable - Contributory negligence - Damages. Industrial Relations Act 1996 - s 127(2) LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 - s 5(1)(c) Workers Compensation Act 1987- ss 151G, 151M El Tarraf v Linknarf Ltd [2004] NSWSC 244 Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 Ghunaim v Bart [2004] NSWCA 28 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 CASES CITED : McLean v Tedman (1984) 155 CLR 306 Medlin v State Government Insurance Commission (1994 - 95) 182 CLR 1 State of New South Wales v Moss (2000) 54 NSWLR 536 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 Toga Building Co Pty Ltd v Karhugh Pty Ltd NSWCA, 25 July 1996, unreported Craig Troy - Plaintiff PARTIES : T.J. Green Constructions Pty Ltd - Defendant Grindley Constructions Pty Ltd - Cross Defendant FILE NUMBER(S) : SC 20945/01 Mr J Gormly SC with Mr D Toomey - Plaintiff COUNSEL : Mr K Rewell SC with Mr J de Berg - Defendant Mr R Gray - Cross-Defendant Mr M Short - Slater & Gordon (Plaintiff) SOLICITORS : Mr M Schroeder - Keddies (Defendant) Mr S Constance - Curwood & Partners (Cross-Defendant)

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

20945/01 Craig Troy v T J Green Constructions Pty Ltd

JUDGMENT 1 HISLOP J: The plaintiff was a bricklayer. In late January 2001 he commenced employment as such with the defendant at a construction site in Pyrmont, New South Wales where three residential towers were under construction. The cross-defendant was the head contractor on the site. 2 On Monday 12 February 2001, the plaintiff had been working in and about an apartment in one of the towers. During the course of that morning, other employees of the defendant erected an internal block wall in the apartment. It took between 1-2 hours to erect the wall from the floor to within 20 mm of the ceiling, the space at the top being left to enable fire retardant to be placed in the gap. The wall was completed at about 1.30 pm. 3 The wall was built of solid concrete blocks measuring 290 x 170 x 90mm. At the time of erection, the blocks were wet from rain. The wall was approximately 2.7 metres high. 4 The wall formed one side of a passageway leading to the front door of the apartment. The evidence was unclear as to how, at that time, the passageway was delineated on the opposite side. On the other side of the wall was a bedroom area bounded by an external wall, which contained holes awaiting the insertion of windows. 5 Shortly before 2pm the plaintiff was working in the apartment bricking up pipes in the toilet. It became necessary for him to obtain some wall ties from the lift lobby in order to continue his work. The only way for the plaintiff to get to the lift lobby was by walking along the passageway and exiting through the front door. This he did. 6 The plaintiff obtained the ties from the lift lobby but on his return, as he passed along the passageway, some blocks fell from the wall onto him, knocking him to the ground and causing him injury. At the time the wall was not braced in any way. 7 The facts thus far recited were either the subject of express agreement, or were not in dispute. 8 The plaintiff claimed damages from the defendant for the injury thus sustained. He asserted the defendant was in breach of the duty of care owed by an employer to an employee. Statutory counts, though pleaded, were not pressed. 9 The defendant cross claimed against the cross defendant seeking indemnity or contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. The cross claim asserted the cross defendant was negligent. A statutory count, though pleaded, was not pressed. No contractual terms were relied upon, and the plaintiff did not join the cross defendant as a party. 10 The issues which arose for determination were:

a) was the plaintiff an employee of the defendant at the time of injury; b) was the defendant negligent; c) was the plaintiff guilty of contributory negligence; d) was the cross defendant negligent; e) quantum of damages and apportionment, if applicable

Employment 11 It was common ground the plaintiff was employed by the defendant from the commencement of his work on the site to about 7 February 2001, and that he was paid wages by the defendant for that period. It was also common ground that in respect of the next pay period, which included the day of injury, the plaintiff's wages were paid by the cross defendant. The defendant submitted, albeit in the end but faintly, that, in these circumstances, it should be concluded the plaintiff was not employed by the defendant on the day of injury. 12 I am unable to accept that submission. The plaintiff's evidence was that he believed he was employed by the defendant up to 7 February 2001, that nothing changed between 7 February 2001 and the date of injury and that all instructions as to his work were received by him from the defendant's principal, Mr Green, or its foreman, Colin. It is apparent from the evidence, both oral (Messrs Papaconstuntinos and Roese) and documentary (Exhibits 8 and 9), that on a day subsequent to the plaintiff's injury, but in that week, the defendant decamped from the job site without paying wages owed to its employees working on the site. 13 The cross defendant thereupon became liable to pay the unpaid wages to those employees pursuant to the Industrial Relations Act 1996 s 127(2). The payment of wages to the plaintiff by the cross defendant for the day of injury was made pursuant to the statutory obligation thus cast upon the cross defendant and not pursuant to any contract of service between the plaintiff and the cross defendant. The affidavits of Mr Green and Ms Baker (exhibit 4), relied upon by the defendant to suggest that the plaintiff was employed by the cross defendant on the day of injury, in my opinion, have no weight. 14 Accordingly, I find the plaintiff was employed by the defendant on the day of injury, and was owed by the defendant the duty of care appropriate to that relationship. 15 In any event, as Mr Rewell, senior counsel for the defendant fairly conceded, the defendant would have owed a duty of care to the plaintiff in the circumstances, even in the absence of an employer/employee relationship.

Negligence 16 The duty of care owed by an employer to its employee was stated by the High Court in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 in the following terms: The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task. 17 The evidence as to negligence was all one way. The safe construction of a block wall required it either be built in stages (the first stage being a little over 1 metre high and the wall being left overnight to cure before the next stage was built), or, if it was built in one go above that height, it was to be braced until it had cured, otherwise there was a foreseeable risk that due to the weight of the additional section of the wall the soft mortar would give way, causing the wall, or part of it, to collapse. 18 The evidence establishing the matters referred to in the preceding paragraph was contained in the report of the plaintiff's expert, Dr Olsen, the evidence of Mr Roese, the cross defendant's construction site safety accident report (Exhibit D), and the evidence of the plaintiff. 19 There was also evidence the risk of the wall collapsing in whole or part was likely to have been increased by the fact the blocks were wet when laid and the wall was exposed to the effect of wind though these matters are not essential to my finding of negligence by the defendant. 20 The defendant called no expert or other evidence to contradict the evidence relied upon by the plaintiff, and the defendant's cross-examination of the plaintiff and Mr Roese proceeded as if the matters referred to in paragraph 17 hereof were common ground. 21 I accept the evidence relied upon by the plaintiff and find that the defendant breached its duty to take reasonable care to provide a safe place of work and/or means of access thereto, by reason of building the wall in one go and failing to brace it. 22 I further find that the injuries sustained by the plaintiff were caused by the defendant's breach of the duty owed by it to the plaintiff.

Contributory negligence 23 The plaintiff conceded he knew the wall was green (i.e. the mortar had not cured), he knew it was not braced and he knew, whilst the wall was in that condition, part or the whole of it could spontaneously fall. The plaintiff agreed that if he had walked on the far side of the passageway he would have been able to put 1 metre at least between himself and the green wall. The defendant submitted that these concessions established contributory negligence on the part of the plaintiff. 24 The issue of contributory negligence is to be approached on the footing that the defendant failed to discharge its obligation to take appropriate precautions against the risk of injury arising from its negligence and the plaintiff failed to observe and avoid the risk created by the defendant's negligence. The initial question is whether the failure of the plaintiff amounts to negligence or should be characterised as mere inattention, inadvertence, thoughtlessness or the like, there being a well recognised distinction between the two - McLean v Tedman (1984) 155 CLR 306 at 315. 25 The issue is essentially one of fact. The circumstances and conditions in which the employee has to do his or her work must be taken into account, and the mere fact the employee has knowledge of the danger is not conclusive - see Ghunaim v Bart [2004] NSWCA 28. 26 In this case, the wall had been constructed by the defendant's employees. The defendant had control of the method of construction. The wall was built beside the only means of access to and from the area in which the plaintiff was required to work. The manner of construction created a risk the wall or part of it could fall, causing serious injury or death to any person in the vicinity. The length of the wall was not the subject of precise evidence but Mr Roese estimated it at 3 metres maximum. It would have taken the plaintiff only a few steps and a couple of seconds to pass by the wall. He was engaged in a job of work, and his failure to advert to the possibility that the wall, or part of it, may have fallen as he passed it and to walk a metre from it is not, in my opinion, to be categorised as negligence on his part, but was excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable person - Sungravure Pty Ltd v Meani (1964) 110 CLR 24 per Windeyer J at 37. 27 I would also reject the allegation of contributory negligence on the further ground that the defendant, on whom the onus lies, has not established that had the plaintiff walked one metre from the wall he would have avoided injury. The plaintiff was 1.74 metres tall and weighed approximately 92 kilograms. The wall was 2.73 metres high. Mr Roese, who arrived at the accident scene after the event, gave evidence that just under half of the wall had fallen. There is no evidence as to how far the blocks were from the wall after they had fallen, or what their trajectory had been. In my opinion it would be speculative to conclude that if the plaintiff had walked one metre from the wall he would have avoided injury. 28 In my opinion, the defendant has not established the plaintiff's acts or omissions constituted contributory negligence.

The cross claim 29 The defendant, in order to recover contribution from the cross defendant, must establish the cross defendant would, if sued, have been liable to the plaintiff in respect of the same damage s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. 30 The defendant submits the cross defendant would have been so liable on three bases:

a) the cross defendant was the employer of the plaintiff on the day of injury and breached its duty as employer; b) the cross defendant owed a duty to the plaintiff to provide a safe means of access and breached that duty. Reliance was placed upon Toga Building Co Pty Ltd v Karhugh Pty Ltd (Court of Appeal, 25 July 1996, unreported); c) the cross defendant exercised control over site safety and should have (i) given directions to the defendant as to how to construct the wall, and (ii) seen the way in which the wall was being or had been constructed prior to the plaintiff's injury and taken action to prevent any injury therefrom. 31 As I have found the plaintiff was not employed by the cross defendant at the time of injury, the first of the defendant's submissions must be rejected. 32 Toga was a case in which there was a specific finding by the trial judge that on the facts of that case it was the responsibility of the head contractor to provide access for employees of subcontractors. There was no evidence in this case as to the contractual arrangements between the defendant and the cross defendant, and no evidence that the cross defendant had undertaken to provide a safe means of access for the plaintiff to or from his place of work in the apartment. Toga's case is distinguishable from the present. Even if the cross defendant owed such a duty there was no breach as the evidence did not establish the cross defendant knew or ought to have known of the danger created by the actions of the defendant. Accordingly I do not accept the defendant's second submission.

33 There was evidence the cross defendant had supervisors working at the site, and that those persons may have given instructions to the defendant's principal or his foreman on occasions. However, the terms of those instructions were not the subject of any precise evidence. There was evidence the cross defendant had stopped the job once or twice to clean up. 34 The relationship between the defendant and the cross defendant was that of principal and independent bricklaying subcontractor. There was no evidence the defendant was incompetent in its trade, and the cross defendant, in my opinion, was entitled to expect the defendant would perform its duties with expertise and in a safe and proper manner. There was no evidence the cross defendant was aware the defendant would erect the wall in one go and not brace it. In these circumstances I do not accept the submission that the cross defendant should have given instructions to the defendant as to how to erect the wall. 35 I am not satisfied, having heard the plaintiff's evidence on the matter, that the history recorded by Dr Olsen as to a conversation purportedly overheard by the plaintiff shortly after his accident, that the cross defendant had earlier directed the wall should be propped, should be accepted. If it was accepted it would not establish negligence by the cross defendant as, if anything, it would establish the cross defendant instructed the defendant to brace the wall.

36 I do not accept the submission that the cross defendant knew, or should have known prior to the plaintiff's injury, that the wall was being, or had been, built in one go and not braced. It was an internal wall and the evidence did not establish the cross defendant knew it was being, or had been, built in one go and not braced or that reasonable care required the cross defendant to inspect that area within a time frame prior to the plaintiff's injury which would have revealed the wall was being or had been built to a height which required bracing. 37 In my opinion, the cross claim fails, and there will be a verdict on it for the cross defendant.

Damages 38 The plaintiff was born on 20 December 1967. He is right hand dominant. He left school in year 9, at age 13 or thereabouts. Thereafter he worked initially as a bricklayer's labourer, then as a concreter for a short time, and thereafter as a bricklayer, sometimes self-employed, sometimes as an employee. He did not obtain a trade or any other formal qualification, completing only 2 years of the 4 year bricklayer's apprenticeship course at TAFE. 39 The plaintiff married on 10 October 1996. He has two young children. Subsequent to the accident, the marriage broke down, the plaintiff says in large part as a consequence of his injury, though other factors were involved as well. The plaintiff and his wife now live apart, and the plaintiff has access to his children 35% of the time. The plaintiff at all relevant times has lived on the Central Coast. 40 Prior to the accident, the plaintiff enjoyed various pastimes, particularly fishing. 41 Post-injury radiography revealed the plaintiff had pre-existing degenerative changes at many levels of his cervical, thoracic and lumbar spine. He conceded that, pre-injury, he had from time to time suffered pain and stiffness at all levels of his spine and, on three or four occasions, had sought assistance from a chiropractor in respect thereof. 42 The plaintiff was able to walk from the scene. He complained of increasing stiffness in the back, and that it was starting to ache. He was taken to see a GP, Dr Kapel, on the day of the injury. Dr Kapel noted a history of bricks of block wall on neck and torso. She referred the plaintiff for X-rays of the cervical, thoracic and lumbar spines and issued a medical certificate for two days absence from work, stating in that certificate that the plaintiff was suffering from musculoskeletal damage of thoracic spine. On 14 February 2001, the plaintiff attended his usual GP, Dr Patterson. The doctor's records note, "multiple soft tissue injury". A note on 19 February 2001 in the doctor's records states the plaintiff still had pain, and made specific reference to the right lower lumbar spine. 43 Neither the examination by Dr Kapel, or the first two examinations by Dr Patterson was suggestive of any significant injury. The X-ray ordered by Dr Kapel stated, "there appears to be a fracture left transverse process of C7". This fracture could not be identified on subsequent CT and MRI scanning. There is conflict in the medical evidence as to whether such fracture existed or was related to the subject incident. In my opinion, it is not established there was any fracture of the transverse process of C7 or, if there was, that it was occasioned in the subject incident. 44 Thereafter the plaintiff continued to complain of pain in and about the spine. Treatment was conservative and included medication, physiotherapy and attendance at a spinal clinic. There was some exacerbation of pain on occasions and the plaintiff commenced to complain of paresthesia in the left arm, extending to the thumb and index finger. On 16 April 2002, he underwent a foramenotomy and decompression procedure of the C6 nerve root. The operation was unremarkable and the symptoms were mostly resolved. The plaintiff subsequently complained of a partially frozen left shoulder, for which physiotherapy was prescribed, and some paresthesia. Nerve conduction studies revealed no abnormalities. 45 The plaintiff has continued to complain to the present time principally of pain in the back, neck and shoulders, some paresthesia in the upper limbs, some extension of back pain into the legs, headaches, and that he is depressed. He takes medication. He complains of difficulty due to back pain in sitting for more than 30 to 40 minutes at a time and in standing, impairment of neck movements, limited capacity to lift and carry objects, and increased pain in the shoulders, neck, arms and back on activity. He gave evidence he has done no work since the date of injury, save for two attempts at bricklaying which, he says, lasted only a matter of minutes. 46 The plaintiff has been paid workers compensation since the date of injury. 47 The consensus of medical opinion (Dr Innes-Brown apart) supports the conclusion that as a result of the injuries sustained in the subject accident the plaintiff is, and will continue to be, precluded from returning to work as a bricklayer. I so find. 48 A number of the doctors who have examined the plaintiff have concluded his symptoms are exaggerated. Dr Hessian, an injury management consultant qualified for the defendant, considered the plaintiff embellished his symptoms on clinical presentation. Dr Innes-Brown, an orthopaedic surgeon qualified for the defendant, found inconsistency in relation to clinical testing which he considered was the result of exaggeration, and an endeavour to exaggerate by the plaintiff. Mr Dorling, a clinical psychologist qualified for the plaintiff, noted a suggestion of exaggeration of symptoms demonstrated in a test administered by him. Dr Lee, a psychiatrist qualified for the defendant, considered it was difficult to know how genuine the plaintiff's symptoms of pain were. Dr Smith, a treating rehabilitation specialist, stated, "clinically, he has terrible neck posture for which there is no physical basis. He appears to be quite happy to present with numerous negative complaints, and I suspect he will only improve once there has been settlement of his compensation claim". Dr Pillemer, an orthopaedic surgeon qualified for the plaintiff, took the unusual course on 24 October 2002 of informing the plaintiff's solicitors by letter, separate to his main report, that the condition of the plaintiff's hands, "indicates a very reasonable amount of manual activity is being carried out at the present time…it does indicate his disability is not as marked as he claims, and that he is capable of doing more than he suggested to me today". 49 Those opinions were corroborated, in my opinion, by the plaintiff's demeanour in the witness box, and by the evidence of Mr Uzelac, a friend of the plaintiff, who said that since the accident the plaintiff had engaged in rock fishing with him on 3 occasions, and had been deep sea fishing with him in Mr Uzelac's boat on 10 to 15 occasions. These expeditions were in the waters off the coast, and lasted for 6 to 8 hours at a time. The plaintiff had also gone charter boat fishing with Mr Uzelac on 3 occasions. This evidence contrasted with the plaintiff's evidence that sitting in a boat on rocky water caused the whole of the body to hurt. 50 I find that though the plaintiff does have a degree of pain and some impairment of his physical capacity, his symptoms are exaggerated to a considerable degree. 51 Dr Innes-Brown gave evidence the plaintiff had significant degenerative changes which were quite advanced for his years; it was inevitable the pre-existing changes would progress over the years and that the pre-existing condition may have caused the plaintiff to give bricklaying away at age 50, irrespective of the subject injury, though he conceded the possibility the plaintiff might have got to the normal retiring age of 65. 52 Dr Pillemer was called to give evidence for the plaintiff, though his evidence was taken after that of Dr Innes-Brown. Dr Pillemer considered the plaintiff had widespread degenerative changes in the whole spine. In his opinion, the probabilities were against the plaintiff being able to continue his career as a bricklayer past the age of 50 by reason of those changes, though it was possible he could have gone well beyond 50, working with some degree of pain. I accept this evidence.

53 Dr Pillemer gave evidence that the plaintiff, from a purely physical point of view, could do sedentary work. He agreed with the proposition that if one accepted the plaintiff's evidence that he was motivated to get back to work he would be quite confident the plaintiff would find his way back into the workforce, that is clerical, sedentary work, where he was not required to undertake heavy tasks. I accept that evidence and the evidence of Dr Lee and Mr Dorling that the plaintiff's capacity to work was not restricted on psychiatric grounds. 54 The plaintiff conceded he had confirmed to various doctors that he could manage his household activities, and that remained the position at the time of the trial. Dr Pillemer was of the opinion there was no indication the plaintiff would need any assistance with domestic duties. I accept that opinion in preference to that of Dr Endrey Walder and the occupational therapist Ms Castle-Burton, whose opinions I consider unrealistic particularly having regard to the plaintiff's comments to other doctors and his exaggeration of symptoms. 55 It is against that background that the quantum of damages falls to be assessed.

Non-economic loss 56 The statutory maximum under s 151G of the Workers Compensation Act ("the Act") at the date of the injury was $246 900.00. 57 The plaintiff contends the appropriate assessment for non-economic loss is 50% of a most extreme case, the defendant, 30%. Having regard to the matters previously discussed I assess the proportion of a most extreme case at 35%, i.e. $86 415.00.

Past out-of-pocket expenses 58 These items were agreed at $37 675.00.

Future out-of-pocket expenses 59 The plaintiff contends this item should be assessed at $25 000.00, the defendant $23 600.00. This item does not permit of precise calculation. I assess the appropriate sum at $24 000.00.

Past loss of earnings 60 The plaintiff claims loss of earnings on the basis of total incapacity for work from the date of injury to the present. The defendant submits total incapacity should be allowed only to 24 October 2002, when Dr Pillemer reported observing callosities on the plaintiff's hands. I accept the defendant's submission in this regard. 61 There were three items of evidence of particular relevance to the assessment of what the plaintiff was likely to have earned if uninjured, namely:

a) an agreement by the parties that the plaintiff's net weekly income with the defendant was $690.00 per week, which included a travel allowance of $85.00 gross per week (say $60.00 net). b) evidence from a union official that in the Sydney area at the present time, certificated bricklayers were earning $1100.00 net per week for a 6 day week. c) the plaintiff's tax returns, which indicated his average earnings over the preceding 2 ½ years from bricklaying were low by comparison to his earnings with the defendant. 62 The plaintiff submitted that if uninjured, the plaintiff would have averaged over the period since the date of the injury $895.00 net per week, (half the sum of $690.00 and $1100.00), and that the plaintiff should be awarded that sum per week for the whole of the period from the date of injury to the present. 63 The defendant submitted that the figure of $690.00 per week should be adjusted downward to $500.00 net per week to allow for "allowances and seasonality", the plaintiff should be allowed that sum per week from the date of the injury to the present, less, for the period since 24 October 2002, $200.00 net per week, representing his retained earning capacity from that date. 64 The calculation of the plaintiff's average earnings if uninjured from 12 February 2001 to date involves a degree of speculation. In my opinion it is unlikely the plaintiff would have worked six days per week on a continuous basis or would have earned at the rate of $1100.00 per week at any time during that period. Allowance must be made for his past earnings history which was poor, the fact he had not completed the TAFE course as a bricklayer, the fact it was unlikely he would have continued in employment without interruption and the likely incurring of significant travel expenses which were to be offset against his earnings. Against those matters must be balanced the likelihood that there would have been some general increase in salary rates for bricklayers over the period. In my opinion an appropriate average from the date of injury to the present is $600.00 net per week. I accept the defendant's assessment of earning capacity of $200.00 net per week from 24 October 2002 to the present. 65 Accordingly, I assess past loss of earnings at $87 800.00. (175 weeks at $600.00 net per week ($105 000.00) less 86 weeks at $200.00 per week ($17, 200.00)). 66 The plaintiff claims past loss of superannuation. The method of calculation, agreed by the parties, was to "gross up" the net loss of wages by 20% and then allow 8.5% thereof. Applying the agreed formula, the past loss of superannuation is $8 955.00, ($87 800.00 + 20% thereof (17 560.00) = $105 360.00 x 8.5%).

Impairment of future earning capacity 67 The assessment of damages for impairment of future earning capacity involves the exercise of calculating the extent to which the diminution of earning capacity which the plaintiff has sustained is or may be productive of financial loss (Medlin v State Government Insurance Commission (1994 - 95) 182 CLR 1). 68 The plaintiff calculated his claim for impairment of future earning capacity as follows:

a) to age 50 at $1100.00 net per week less retained earning capacity of $250.00 net per week less 15% for vicissitudes; b) from age 50-65, at $1100.00 net per week, less retained earning capacity of $250.00 net per week, less 50% for contingencies, less 15% for vicissitudes, deferred for 14 years. 69 The defendant submitted that the claim for the future should be calculated on the basis of a net loss to age 50 of $300.00 per week, with no discount for vicissitudes, and with a deferral for one year, during which the plaintiff can complete the School Certificate. 70 In my opinion, the plaintiff's likely earnings at this date, but for the injury, should be assessed at $700.00 net per week by reference to the considerations referred to in paragraph 64 hereof. I would not defer the calculation of impairment of future earning capacity for one year so that the plaintiff can obtain his School Certificate, as suggested by the defendant, as to do so would suggest a mathematical precision in these calculations which is simply not present. (see generally State of New South Wales v Moss (2000) 54 NSWLR 536 at [70] and [71]). The figures advanced for the plaintiff do not include any such deferment. 71 The plaintiff, on the evidence of Dr Pillemer which I have accepted, has the physical capacity to do full time sedentary work. However, he left school at the age of 13, has acquired no qualifications, and is no longer fit for heavy manual work. He has stated that he will take courses to obtain the School Certificate and computer skills. However, even with those qualifications his earnings will, in all probability, be at the lower end of the spectrum, and his employment will be punctuated by periods when he is out of work. I assess the retained earning capacity at $300.00 net per week. 72 In assessing the impairment of future earning capacity, I would increase the conventional 15% allowance for contingencies for the period to age 50 to 20%, to allow for the increased risk the plaintiff's degenerative spinal condition may have been aggravated during that time, causing loss of work irrespective of the injury on 12 February 2001. The assessment for impairment of earning capacity to age 50 is therefore $169 376.00 ($400.00 per week, x 529.3 (5% multiplier) = $211 720.00, less 20% for vicissitudes ($42 344.00)). 73 Although the probabilities are that the plaintiff would have had to cease work as a bricklayer by age 50 due to his degenerative back condition and irrespective of the subject injury, there remains the possibility he may have continued on, and contrary to the defendant's submissions, the plaintiff is entitled to be compensated for the loss of that possibility - Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. 74 However, in my opinion, the possibility of the plaintiff continuing to work as a bricklayer beyond age 50 was less than 50% by reason of the pre-existing degenerative condition, and the prospect of him working to age 65 as a bricklayer, much less again. In my opinion a large reduction for this contingency is called for. I find the appropriate reduction for contingencies from age 50 is 70%. The amount for impairment of future earning capacity beyond age 50 is to be deferred for 14 years. 75 I assess damages for impairment of earning capacity for the period from age 50 to 65 at $33 300.00, (($400.00) net per week x 555 (5% multiplier) x 0.30 (contingencies adjustment) x 0.50 (for deferral)). 76 I assess the damages for impairment of future earning capacity at $202 676.00, ($169 376.00 + $33 300.00). 77 The plaintiff claims future loss of superannuation. The method of calculation, agreed by the parties, is to "gross up" the net loss of wages by 20%, and then allow 9% thereof. Applying the agreed formula, future loss of superannuation is $21 889.00, ($202 676.00 plus 20% ($40 535.00), = $243 211.00, multiplied by 9%).

Griffiths v Kerkemeyer 78 The plaintiff did need some assistance for a limited period before and after the surgery. I allow $2 000.00 in that regard. I make no other allowance under this head.

Fox v Woods 79 This figure was agreed at $15,225.12.

Interest 80 Interest on past economic loss pursuant to s 151M of the Act was agreed at $5,000. 81 I summarise my assessment of damages as follows: Damages - Non-economic loss: $86 415.00

Interest on past economic loss: $5,000.00 TOTAL: $491,635.12 82 It has been agreed by the parties that the workers compensation payments which have been made should be deducted from the verdict before entry of judgment - see El Tarraf v Linknarf Ltd [2004] NSWSC 244 at [28] - [29]. These payments total $127,243.18.

Orders 1. There will be: (a) a verdict for the plaintiff against the defendant in the sum of $491,635.12.

(b) judgment for the plaintiff against the defendant in the sum of $364,391.94.

The defendant to pay the costs of the plaintiff and the cross defendant. 3. Exhibits may be returned. **********

Last Modified: 07/08/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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