Vojko Radulovic v Multiweld Engineering

Supreme Court of NSW|2001-03-23|Before: Howie J

CITATION : Vojko Radulovic v Multiweld Engineering [2001] NSWSC 187 FILE NUMBER(S) : SC 020447/99 HEARING DATE(S) : 14/11/00 - 16/11/00, 15/12/00 JUDGMENT DATE : 23 March 2001

PARTIES : Vojko Radulovic v Multiweld Engineering Pty Ltd JUDGMENT OF : Howie J at 1

COUNSEL : R.P. McLoughlin with J. Anderson (Plaintiff) G.F. Butler (Defendant) SOLICITORS : Martin Bell & Co. (Plaintiff) P.W Turk & Associates (Defendant) Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 Gillespie v The Commonwealth (1991) 105 FLR 196 Neill v NSW Fresh Food & Ice Co. Pty Ltd (1963) CLR 362 CASES CITED : Wyong Shire Council v Shirt (1980) 146 CLR 40 Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 Sharman V Evans (1977) 138 CLR 563 Van Gervan v Fenton (1992) 175 CLR 327 DECISION : There will be a verdict for the plaintiff in the sum of $1,266,297.30. The defendant is to pay the plaintiff's costs up to 8 June 2000 on party party basis, thereafter on an indemnity basis.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

020447/99 - VOJKO RADULOVIC v MULTIWELD ENGINEERING PTY LTD

JUDGMENT 1 HIS HONOUR: On 13 January 1995, the plaintiff suffered an injury to his back during the course of his employment with the defendant company. There is no dispute about the fact that the plaintiff was injured, the nature of his injury or the circumstances in which he came to be injured. The issues for the court to resolve are, firstly, whether the defendant had breached its duty of care in respect of the plaintiff and thus incurred liability for his injury, and, secondly, if the defendant is found liable for the injury, the quantum of damages that should be awarded to the plaintiff as a result. 2 The oral evidence was in a short compass and there was little dispute on matters of fact. The most significant controversy arose from the conflicting opinions of the two experts called in relation to the issue of whether the work-practices of the defendant were unsafe. Ultimately that evidence proved to have less significance than might otherwise have been the case in light of the evidence given by the plaintiff's employer. 3 The plaintiff was born in Bosnia, Yugoslavia in 1963. He came to Australia in 1988. In November 1990 he commenced employment with the defendant as a fitter and welder. He was required to work in various aspects of the metal trade including cutting, welding and drilling metal. Apart from a short period in 1993, when he was laid off because of a lack of work, the plaintiff was employed by the defendant continuously up until the date of the injury. The plaintiff has not worked in any way since he sustained the injury that gives rise to the present proceedings. 4 As part of the work that he was required to perform during the course of his employment, the plaintiff from time to time cut steel bars into designated lengths. Each bar was 16mm in diameter, 6 metres in length and weighed about 9.5 kilograms. When the bars had to be cut, they were delivered to the defendant's factory in three bundles. Each bundle contained 50 bars and weighed about 475 kilograms. 5 A system of work had been established for cutting the bars and was followed on the day the plaintiff was injured. After the bars were delivered by truck into the factory, three or four trestles were placed alongside one another, about a metre apart and adjacent to a conveyor that ran along one side of the factory wall. The three bundles of bars were unloaded from the delivery truck at the one time by a forklift and placed along the trestles. The forklift was operated by Mr Matic, the owner and managing director of the defendant company. 6 The employee who was required to cut the bars, on this occasion the plaintiff, cut the metal strips binding the bundle of bars which had been placed nearest the conveyor. He would then proceed to push a bar along the trestles onto the conveyor. The bar was pushed down the conveyor to the saw and cut into the required lengths. When all the bars in the first bundle had been cut, the same procedure would be adopted for the second bundle. 7 However, before the strips binding the third bundle could be cut to release the individual bars, the bundle had to be pushed across the trestles towards the conveyor. If this were not done, there was a risk that, when the strips were cut, the bars would spill off the end of the trestle. In order to move the bundle of bars across the trestles, the employee cutting the bars was assisted by another person to push the bundle toward the conveyor. This other person was frequently Mr Matic himself. 8 The practice adopted was for both men to push one end of the bundle as far as they could across the trestles and then walk to the other end of the bundle and push that end to straighten the bundle of bars. The metal strips binding the bars were then cut, releasing the bars safely. The end of the bundle nearest the saw was pushed first. 9 On the day the plaintiff suffered his injury he had followed the normal practice and cut all the bars in the first two bundles without incident. Mr Matic then helped him to push the third bundle toward the conveyor. The plaintiff was positioned at the right-hand end of the bundle facing the conveyor and on the outside of the furthest trestle. Mr Matic was to the plaintiff's left on the other side of the trestle. They both pushed the end of the bundle of bars toward the conveyor. The end that they were pushing moved about 300 millimetres. The other end of the bundle also moved a small distance, about 50 millimetres. 10 While the plaintiff was pushing the bundle of bars, he felt a very severe pain in his lower back. He told Mr Matic that he had hurt his back and he stood for a few minutes until the pain subsided a little. He was then given other work to do and he did not go back to the bundle of bars. The plaintiff worked for the rest of the day even though he was in discomfort due to the continued pain in his back. 11 The next day the plaintiff was in such pain that he was unable to attend work and remained in bed. The pain increased over the next few days, and on 16 January the plaintiff's general practitioner was summoned to his home. He recommended that the plaintiff have bed rest and prescribed analgesics. A CT scan taken a short time later showed some abnormality at the L4/5 level. The spinal cord and the site of the L5 nerve roots were also compressed. The plaintiff was referred to an orthopaedic surgeon, Dr Beer, who arranged for a further CT scan to be carried out. 12 Dr Beer felt that the plaintiff had a large disc protrusion that would probably require surgery. He advised that an MRI should be carried out to assist with the decision as to whether surgery was appropriate. 13 The plaintiff was referred to Dr Segalov, a neurosurgeon. On 23 February 1995 he reported that there was a disc rupture on the left side at the L4/5 level. He thought that a week of leg traction might reduce the protrusion but was of the view that, if this failed to provide substantial relief, the plaintiff would require surgery to remove the protrusion. 14 On 22 March 1995 the plaintiff commenced 5 days traction and two days bed rest in hospital. However, little improvement was achieved and Dr Segalov recommended surgery. The Plaintiff opted to continue with conservative treatment. It was Dr Segalov's view that, even with successful surgery, the plaintiff would not be fit to return to work involving lifting, repeated bending or prolonged sitting or standing. 15 The plaintiff underwent a course of physiotherapy throughout the remainder of 1995 and 1996. There was a gradual improvement in the amount of pain he suffered throughout this period and into 1997. However, the plaintiff continued to experience, what his general practitioner described as, "fairly high level pain" both in his back and down his left leg with frequent exacerbations of his condition. 16 In April 1997 the plaintiff was referred to Dr Compton, a neurosurgeon. There were further investigations of the plaintiff's spine carried out by a CT scan and a myelogram. Dr Compton recommended surgery but the plaintiff again chose to avoid this course in the hope that his back pain would settle with time. 17 In early 1998 the plaintiff commenced an English language course at TAFE. He had realistically come to the view that he could not return to his previous form of employment and intended to retrain in some less physically demanding field. However, he realised that, before this could be possible, he had to improve his verbal and writing skills in English. 18 During 1998 the pain in the plaintiff's back worsened. In July 1998 he was complaining to Dr Compton of disabling left-side sciatica. A further myelogram and CT scan were carried out in August 1998. On 2 September 1998 Dr Compton reported to the defendant's workers compensation insurer that the plaintiff had "a very large disc prolapse" and that he required surgical treatment to maximise his chances of recovery. 19 On 10 September 1998 the plaintiff moved in his bed and suffered a sudden loss of sensation in both legs and control of his bladder and bowel. An ambulance was called and he was taken to Liverpool Hospital. The plaintiff suffered an acute exacerbation of his condition when the disc protrusion caused cauda equina compression. The next day Dr Compton carried out a laminectomy and discectomy. Although the plaintiff was relieved of pain in his back and left leg, he developed weakness and sensory impairment of the lower limbs, a neuropathic bladder and bowel dysfunction, and impotency. 20 Apart from some improvement to the plaintiff's mobility, his condition has remained relatively stable to the present time. His prognosis is poor and he should be taken to have suffered a permanent loss of the efficient use of his legs, his bladder, his bowel and his sexual function. There is no dispute that his present condition is a result of the injury suffered by the plaintiff on 13 January 1995. It has not been suggested that the plaintiff unreasonably contributed to his present injuries by the failure to have surgery when it was recommended to him in both 1995 and 1998.

Liability of the defendant for the injury sustained 21 There is, of course, a clear duty of care owed by an employer to an employee. The relationship itself is enough to give rise to the duty of care. In Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 at [276] Hayne J said: The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty "of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury". 22 Whether a risk of injury is "unnecessary" depends upon, not only a consideration of the risk of injury of the type suffered by the employee, but also upon the steps that can be taken by the employer to avoid the risk. In Gillespie v The Commonwealth (1991) 105 FLR 196 at 212, Miles CJ stated: A risk is "unnecessary" if by the adoption of some reasonable form of precaution or safeguard it could be eliminated or minimised: Neill v NSW Fresh Food &Ice Co Pty Ltd (1963) CLR 362 at 370 per Taylor and Owen JJ. In other words, if the precaution or safeguard would minimise the risk, the remaining level of risk is one which the law regards as "necessary", acceptable or tolerable. 23 The duty of care imposed upon the employer to take steps to avoid the unnecessary risk of injury, is merely an application of the general principles which apply to the law of negligence as stated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. His Honour stated: The perception of the reasonable man's response [to the risk] calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 24 As I have already indicated, the most significant dispute before me concerned the opinions of two experts as to whether the system of work followed in relation to the cutting of the metal bars was a safe one. The experts formed their opinions on this matter by calculating the force that was exerted by each man in moving the bars across the trestles and then considering the force exerted against established standards or limits for safe pushing. Each witness gave his opinion of whether the system adopted was a safe one based upon his assessment of the risk of injury arising in the task performed by the plaintiff and Mr Matic. 25 Mr Tozer, a constructional engineer called by the plaintiff, calculated the force exerted by each of the men to be between 42.5 and 63 kilograms, depending upon the contribution of each man in moving the bundle. He stated that the recommended maximum force to be applied by a single person pushing a load horizontally was 34kg. Therefore, he believed that the level of force that the plaintiff was required to exert was in the unsafe range especially where the worker involved in the task was untrained in safe lifting procedures. He was of the opinion that changes could have been made to the system to eliminate the need to move the third bundle of rods at little cost or effort to the employer. 26 Dr Olsen, a medical practitioner and engineer called by the defendant, prepared two reports for the court. In his first report he stated his opinion that the system of pushing the bundle of bars was unsafe. He formed this opinion as a result of calculations made by him based upon his understanding that Mr Matic and the plaintiff had stood at different ends of the bundle while pushing it toward the conveyor. Dr Olsen calculated that in such a situation the load upon each man would be within the range of 48.5 to 68 kilograms depending upon which coefficient of friction was applied. After having regard to published reports that have considered the safe limits for pushing and pulling tasks, Dr Olsen came to the view that it could not be said that the pushing of the bundle of bars in that manner was safe because of the risk of injury involved. In this report Dr Olsen suggested that an alternative and safe way for the bundle of bars to be moved manually was for the two men to have pushed one end of the bundle together and then pushed the opposite end together. 27 It became clear during the hearing that the plaintiff and Mr Matic had moved the bundle by pushing together on the one end and, as a result, Dr Olsen prepared a second report for the court recalculating the force exerted by the two men when pushing the rods in this way. Dr Olsen determined that the force exerted by each man was within the range of 27 and 38 kilograms. He concluded that, having regard to the studies to which he referred, the force exerted by each man was within safe limits. He came to the view that, if there were any risk of injury involved in manually moving the bundle of bars in the way that Mr Matic and the plaintiff did, it would have been remote. Therefore, he concluded that the system followed by the defendant was a safe one. 28 However, Dr Olsen had cause to revise his calculations a second time in light of evidence given during the hearing that, when the plaintiff and Mr Matic pushed the end of the bundle closest to the saw, the other end of the bundle also moved a small distance. The calculations in Dr Olsen's second report had been based upon his assumption that only the end of the bundle being pushed by the two men had moved. After making allowance for the fact that the other end of the bundle also moved, Dr Olsen determined that the force exerted by each man would be in the range of 31 to 44 kilograms. On these figures Dr Olsen was not as confident that the system of work was a "safe" one or that the risk of injury was as low as he had indicated in his second report. He considered the system of work to be "borderline" or in the "transition area of safety". 29 It is apparent that the figures calculated by Mr Tozer in his report are similar to those obtained by Dr Olsen in his first report. Yet the underlying premise upon which the two witnesses made their calculations was different. Mr Tozer's calculations were based upon the two men pushing from the same end of the bundle whereas Dr Olsen assumed in his first report that the two men pushed from different ends. When Dr Olsen readjusted his calculations to take into account that the men were pushing from the same end, he arrived at a markedly different result from that obtained by Mr Tozer. The discrepancy remained even after Dr Olsen factored in the movement of the other end of the bundle. 30 The reason for the discrepancy between the findings arrived at by the two witnesses is that they fundamentally disagree about the method of calculating the force exerted by the two men in the different scenarios considered by Dr Olsen. For example, Mr Tozer believed that in the case where both men pushed the bundle from the one end, the force required to move the bundle was based upon the whole weight of the bundle of rods, that is 95 kilograms and this was so whether the other end moved or not. Dr Olsen, on the other hand, was of the view that, if the bundle was pushed from one end and the other end did not move, the force required to move the bundle was based upon half the weight of the bundle. If the other end moved then, according to Dr Olsen, the force required to move the bundle would increase in proportion to the distance the other end of the bundle moved. 31 Neither Mr Tozer nor Dr Olsen would consider the possibility that he was in error in his calculations. The controversy extended to fundamental principles involving matters such as the effect upon the force required to move the bundle by the number of trestles on which it was lying, the manner in which the weight of the bundle would be distributed over the trestles and the amount of force needed to move the bundle at any point upon its length. Had it been necessary to resolve this dispute, I may not have been able to do so, at least not to the point of preferring Mr Tozer's opinion over Dr Olsen to find in favour of the plaintiff. 32 However, I do not believe it is necessary for me to try to resolve the difference of opinions between two highly qualified engineers as to the proper way to calculate the force acting upon the plaintiff at the time he pushed the bundle of rods, or to chose between their competing views. Ultimately Dr Olsen accepted that the system used was on the borderline between being what he considered to be "safe" and "unsafe". On this view it could not be said that the risk of injury was remote. Further, the very nature of the task in which the men were involved and the lack of any safe or coordinated pushing procedure meant that the risk of injury was not a fanciful or far-fetched one. It was a risk that could have been entirely removed by a simple change in the procedure for placing the rods on the trestles that obviated the need for the third bundle to be moved along the trestles before the wires binding the rods were cut. 33 In any event, the evidence of the plaintiff's employer Mr Matic makes it clear that the defendant breached its duty as the plaintiff's employer. He gave evidence that on occasions, before the plaintiff was injured, he and others had felt uncomfortable when pushing the bars because they were a "bit heavy". He said that he had considered using the forklift or a block and tackle to move the bars but it was quicker just to help the employee push them. He agreed in cross-examination that he knew it was safer to use the forklift to move the rods but it was faster to use manpower. 34 Based upon this evidence the risk of injury to the plaintiff was foreseeable and it was an unnecessary risk for the employer to run. There was no reason, other than the convenience of Mr Matic as operator of the forklift, for the three bundles of rods to be placed on the trestles together. The preference for manpower to move the third bundle was based, once again, on the convenience of Mr Matic who was saved the time and trouble of using the forklift or setting up the block and tackle which was available to him. I accept that this was a very small factory that was normally staffed only by Mr Matic and the plaintiff, but even so the means of avoiding the risk of injury were readily available and easily employed. 35 The plaintiff is entitled to a verdict against the defendant.

The plaintiff's injuries 36 There is no dispute as to the nature and extent of the plaintiff's injury. As I have already indicated, the plaintiff now suffers from an inability to control his bowel and bladder and he is impotent. He also has restricted mobility. These physical disabilities are permanent. Further the plaintiff suffers from depression and a loss of self-esteem as a result of his injuries. 37 Before the accident the plaintiff was a fit and strong man, married with two young children. He enjoyed a normal sex life with his wife. He took part in sport including soccer and swimming. He was involved in general activity about his home including mowing lawns, repairing the family motor vehicle and general handyman tasks. He had an active social life with his friends. He did not unduly suffer from depression or anxiety. 38 The plaintiff now has a total loss of sensation in the saddle area of his buttocks and perineum as well as in the back of the thighs, heels and across his feet. There is also weakness in his lower limb muscles particularly at the ankle, feet and hips. He has weakness of his planter flexion, knee flexion and hip extension. His mobility is restricted and he has difficulty lifting weights. He cannot run or jump. At the time of the hearing he could walk only about three kilometres before tiring. He does not normally require a walking stick and he can walk on uneven ground with care. He requires orthotic shoes. He can drive a manual motor vehicle with some slight difficulty in operating the clutch. He can travel on public transport. He is able to attend to his own self-care although he needs a shower stool in order to wash his feet. He suffers from headaches. 39 He attends physiotherapy once per week for massage and is involved in exercising at home using a treadmill, stationary bike and exercise ball. He can use a whipper-snipper around the garden but cannot push a lawn mower. He frequently attends the building site of his new home and gives instructions to the builders. He can pick up objects from the building site such as pieces of wood or bricks. He climbs a ladder between the two levels of the house but with some difficulty and care. He will be able to walk from his future home to a near-by park with his children. 40 The plaintiff has a neuropathic bladder. He has an incompetent bladder neck that causes him to leak urine continually. He has been able to partially ameliorate this problem by the use of Ephedrine although he still requires incontinence pads day and night. Because of the pressure he exerts in emptying his bladder he is at risk of kidney damage. He will require annual review to assess renal damage. He is also likely to suffer recurrent urinary tract infections. In order to reduce the risk of kidney damage the plaintiff has been encouraged to use self-catheterisation but at the time of the hearing he had been unable psychologically to bring himself to adopt this course, although he intends to do so in the future. He attends physiotherapy to assist him in the proper control of his bladder. 41 The plaintiff has a neuropathic bowel. He has a lax anal sphincter and is unable to normally evacuate his bowel. He takes a food supplement and has a special high fibre diet to assist him to avoid constipation. He is at times incontinent of faeces. This results in, what were referred to during the hearing as, "accidents" when the plaintiff passes faeces before reaching the toilet. This happens on an average of once or twice a week. The plaintiff has on occasions used an anal plug when he is required to mix socially with other persons outside his home. However, the use of an anal plug generally results in his being constipated the next day. 42 The plaintiff is unable to obtain an erection. He has used Viagra without success. Neither the plaintiff nor his wife believes that the use of penile injection therapy or intrapenile MUSE is appropriate. It has been recommended that he and his wife undergo regular sexual and relationship counselling. The plaintiff's wife had contemplated that they might have a third child, but this would now only be possible by the use of artificial insemination. 43 The plaintiff has been suffering from depression, anxiety, reduced self-esteem, sleep disturbance and fluctuations in mood as a result of his physical disabilities. He does not have a psychiatric illness and the degree of depression and distress, although severe, is appropriate to his situation. He has been receiving on-going psychological treatment including pain management. There has been some slight improvement in his condition over the period of his treatment. He will need psychological counselling for a considerable period in the future.

(a) Non-economic loss 44 Damages for non-economic loss are to be determined in accordance with s 151G of the Workers Compensation Act 1987. The court is to assess damages under this head having regard to the fact that that the statutory maximum which can be awarded, being the sum of $216,950, is retained for a most extreme case: s 151G(3) of the Act and Southgate v Waterford (1990) 21 NSWLR 427 at 440. A most extreme case is one falling within the class of very extreme injuries which might be contemplated: Dell v Dalton (1991) 23 NSWLR 528. 45 On behalf of the plaintiff it was initially submitted that he fell within the range of 80 per cent to 90 per cent of the worst case. In final submissions it was suggested that the level was as high as 95 per cent. The defendant has submitted that in light of the plaintiff's general mobility within the community and his ability to care for himself in his every-day tasks, that his injuries should be assessed at 60 per cent of a most extreme case. However, the plaintiff's physical mobility is limited by his incontinence particularly in relation to faeces. The plaintiff, who is only 37 years of age, has no possibility of a sexual relationship. He runs the risk of significant kidney damage. He suffers and will continue to suffer in the foreseeable future a profound psychological disturbance. His enjoyment of life has been substantially and permanently affected. The consequences of the injuries for the plaintiff are severe. 46 In my opinion the plaintiff's injury should be considered to be 85 per cent of a worst case. This translates into a sum of $184,407.50 that should be awarded to the plaintiff for non-economic loss. (b) Past economic loss 47 Past economic loss should be awarded on the basis of the second scenario postulated in the report of Furzer Crestani Services giving a sum of $177,684.00. (c) Future economic loss 48 In respect of future economic loss the plaintiff contends that he should be treated as being totally incapable of future employment. The defendant submits that the court should find that the plaintiff has a residual capacity to earn an income of one third. 49 There is no doubt that the plaintiff is permanently unfit for any work of a physical nature. The only prospect of future employment is if he were able to retrain in some occupation which he could carry out from his home. This is because of his generally restricted mobility and his inability to control his bowel. The plaintiff is of average intelligence. He is clearly motivated to retrain as shown by his attendance at TAFE in 1998. He is presently restricted by his lack of verbal and written fluency in English. This would need to be redressed before there could be any hope of his undertaking some course of a study in an area that might lead to future employment. 50 The plaintiff has age and motivation on his side but he faces a formidable task in not only retraining himself but also in being able to find suitable employment in any field in which he might prove competent. His retraining is restricted not only by his limited use of the English language but also by his physical and, at present, his psychological state. I do not believe that there is any real prospect that the plaintiff will be able to earn any significant income even if he were able to retrain as a draughtsman or in the computer field as he hopes to do. His aspirations to work from home would in all likelihood be frustrated by his lack of the experience and the contacts necessary for him to establish himself in his chosen field. 51 I can well understand that it is important to the mental well-being of the plaintiff and his wife that they cherish a belief that eventually the plaintiff will be able to establish himself as a productive member of the community. But in my opinion the overwhelming probabilities are that he will not in any significant way be employed again. I am confirmed in this view by the evidence of Dr Engel, a rehabilitation specialist, who foresaw difficulties in retraining the plaintiff because of his limited work experience and his poor English skills. 52 In my view the plaintiff should be considered to be totally incapacitated. In accordance with the amount calculated in Schedule F of the Furzer Crestani Services Report and taking into account the normal discount for vicissitudes, the damages under this head should be $428,328.01.

(d) Superannuation 53 The estimated superannuation benefits to which the plaintiff would have been entitled had he been able to continue to work for the defendant have been calculated in the report of Furzer Crestani Services. Two alternatives have been considered, the first based upon superannuation contributions made by the defendant on the plaintiff's base salary, and the second based upon contributions made in respect of both base salary and overtime. It is unclear upon what basis the payments would have been made. 54 I believe it is appropriate to award damages based upon the lower estimate which is $68,697.00.

(e) Fox v Wood 55 The amount agreed upon is $25,256.98.

(f) Past Out of Pocket Expenses 56 The amount agreed upon is $60,173,54 of which $56,664.24 has been paid by the defendant.

(g) Future Out of Pocket Expenses 57 The substantial dispute between the parties in this area of damages is whether provision should be made for the plaintiff to be provided with a swimming pool and a motorised buggy. The question is whether the provision of the service would be reasonable having regard to the cost of the service weighed against the benefit to the plaintiff's health: Sharman v Evans (1977) 138 CLR 563 at 573. 58 The plaintiff presently undertakes physiotherapy in order to assist in maintaining or improving his mobility. He visits the physiotherapist once a week. He supplements these visits with exercise at home on a treadmill, stationary bike and exercise ball. He has made a significant improvement since the operation in September 1998. However, he will need physiotherapy for the rest of his life. 59 Up to the time of the hearing the physiotherapy had been addressing the plaintiff's lower limb functions including his stability and his gait pattern. Ms Tallis, the physiotherapist, gave evidence that the plaintiff had reached the point where he could start to address his general level of fitness and functioning by more challenging exercise. She was of the view that this type of exercise could best be achieved in a heated swimming pool. Ms Tallis believed that, if the plaintiff exercised daily in a pool, he would not require weekly physiotherapy and would have a better chance of reaching and maintaining a normal level of fitness. 60 Dr Engel was of the view that access to a heated swimming pool would allow the plaintiff to maintain physical fitness and would be a major benefit in controlling pain and obtaining flexibility in his joints. Dr Bleasel gave evidence that swimming was the very best exercise for fitness and muscular strength. 61 Although there are facilities available that can provide the plaintiff with the opportunity to obtain exercise in a heated pool, the plaintiff is concerned that he might embarrass himself by his inability to control his bowel, particularly where he is straining himself in exercise. Further hydrotherapy performed at a treatment pool is relatively expensive and has the disadvantage that the plaintiff would not be responsible for his own exercise management as he would if using his own pool. The expense of the heated pool is to some small degree compensated for by a reduced need for physiotherapy. Further, swimming was one of the sports in which the plaintiff participated and which he enjoyed prior to his injury. One of the effects of his injury has been to deprive him of this activity because of his fear of having "an accident" when using a facility to which members of the public have access. 62 Notwithstanding that the cost of providing and maintaining a heated pool is high, I believe the provision of such a facility is reasonable in all the circumstances of this case and, therefore, the award for future treatment expenses includes an amount of $94,702 for construction of the pool and $125,385.06 for maintenance. As a result I believe that an amount of $20,000 is an appropriate amount to allow for physiotherapy to the plaintiff's lower limbs. 63 Senior counsel appearing for the plaintiff candidly expressed the view that the provision of a motorised buggy was not the strongest part of the plaintiff's case. I do not believe that there is a reasonable basis upon the evidence to provide for such an appliance. I do not believe it is necessary at the present time, nor can it be justified on the basis of Dr Engel's belief that there is a risk that the plaintiff's condition might deteriorate to such a stage where it will become necessary. 64 Provision of a lift in the plaintiff's new home has not been pressed. Nor do I believe that the evidence in this case justifies the provision to the plaintiff of an automatic motor vehicle. The plaintiff had some difficulty with the clutch when he was tired but generally he has been able to use the motor vehicle when and as required. 65 Although, there will be an ongoing need for the plaintiff to receive psychological counselling, I am far from persuaded that he will need it regularly for the rest of his life. Dr Zepinic in his report of August 1999 indicated that depending on the plaintiff's recovery and physical condition the need for psychotherapy could extend for "several years". Dr Ellard in his report and evidence indicated that the plaintiff's would need help from Dr Zepinic for "a long time", and his later report "for a considerable period". The plaintiff's wife gave evidence that his depressive states were less frequent. The plaintiff said that he was more relaxed but his depression returned when he had "accidents". I believe that there will be occasions where he will fall into depression and require professional assistance at times. I have made what I believe is a reasonable estimate of an amount to provide for future psychological assistance. 66 The following amounts have been allowed: General practitioner monthly 10,120 Medication and supplies 57,886.69 Physiotherapy (back/legs) 20,000 Physiotherapy (urological) 3,257.24 Occupational therapy 2,000 Artificial Sphincter 10,000 Caverjet 2,000 Sexual counselling 15,000 Psychological counselling 20,000 Swimming pool 220,087.06 Incontinence pads 6,872.22 Shower chair 324.05 Orthotic Shoes 6,336.34 GST on appliances 22,674.70 Total $396,558.30 (h) Griffiths v Kerkemeyer 67 The claim under this head of damages is based upon the need of the plaintiff for the services provided to him: Van Gervan v Fenton (1992) 175 CLR 327 at 333. However, the provision for domestic assistance required by the plaintiff is to be determined in accordance with s 151K of the Workers Compensation Act. Relevantly the section provides a limit upon the amount that can be awarded both as to the rate at which any award for such assistance is to be calculated and by disentitling the plaintiff to compensation in respect of services that would have been provided to the plaintiff had he not been injured. I was informed by the parties that the rate allowed by the Act is $16.00 per hour. 68 Before his injury the plaintiff made no contribution to the general domestic duties inside the home. His wife has always provided these comforts to him up until the time of the hearing. However before the injury the plaintiff's wife was able to hold part-time employment while providing for her husband and children. Immediately after the plaintiff's operation, his wife took leave from work to help him. Initially she helped him dress and bathe and took him to see doctors and to receive physiotherapy. 69 In March 1999 the plaintiff's wife returned to work for three and a half months while the plaintiff's mother performed household duties and took care of the plaintiff, by dressing him and cleaning up after his "accidents". In August 1999 the plaintiff's wife gave up work as she found it too difficult to meet all the demands made upon her in carrying out her household chores and caring for the plaintiff and the children. After the plaintiff was able to drive himself to various appointments, his wife found that the main additional task she had to perform as a result of the plaintiff's injury was cleaning up after him. She needed to clean the toilet everyday and sometimes up to three times a day. Generally it takes her about an hour to clean up after the plaintiff's "accidents". At the time of the hearing these "accidents" happened on average about once a week. The plaintiff's wife also does more physical activity in the garden than she used to do, including mowing the lawns. 70 The plaintiff's wife gave evidence that since his operation family life has centred more around the needs of the plaintiff than was the case before his injury. She described the plaintiff's need of her as similar to that of a child. He requires reassurance from her that everything is running smoothly around him. There is little doubt that the plaintiff's wife has been required at times to assist the plaintiff overcome his states of depression and anxiety arising from his physical disabilities and to generally offer him emotional support. 71 From the time of his discharge from hospital for about three or four months before the plaintiff's wife returned to work, she was involved in caring for the plaintiff to a substantial degree including bathing and dressing him. Thereafter there was a steady improvement in the plaintiff's condition. For a period both while she was working and after she ceased work it was necessary for her to drive the plaintiff to various medical appointments he was required to attend including physiotherapy, at first four times a week and then three times a week. 72 In about November 1999 the plaintiff commenced driving himself and from that time his wife's main task in caring for the plaintiff was to clean up after his accidents. The number of accidents varied but generally they occurred once a week. On some occasions the plaintiff's wife might have to clean up after him on three occasions in the one day. 73 It is not in contest that for a period after the plaintiff's operation his wife was in almost full-time care of him. This should be taken to be a period of four months from October 1998 to February 1999. The maximum amount that can be awarded is 40 hours per week. This is 40 hours @ $16.00 for 16 weeks, being a sum of $10,240. 74 From that time until November 1999 the plaintiff steadily improved and his wife was required to assist him less. She was still required to clean up after his "accidents" and drive him to appointments. An allowance over this period should be an average of 20 hours per week. This is 20 hours @ $16.00 for 36 weeks, being a sum of $11,520. 75 Thereafter, the plaintiff's wife has been involved mainly in cleaning up after his "accidents". This takes about an hour. She also used the lawn mower on occasions. She was required at times to give him emotional support although his periods of depression were becoming less frequent. For the last five months before the hearing the plaintiff has been spending up to 4 hours a day at the building site. There should be an allowance of 10 hours a week from November 1999 to the date of the hearing. This is 10 hours @ $16.00 for 52 weeks being a sum of $8,320. 76 The amount for past domestic assistance and nursing is, therefore, $30,080. 77 In the future the plaintiff's wife will generally be required to clean up after his accidents and on occasions give him emotional support and encouragement. I do not believe that his depressive state will continue for the rest of his life although he is likely to have relapses when he will need support from his wife. It may well be that the conclusion of these proceedings will have a beneficial effect upon the plaintiff's mental well-being. 78 The defendant submits that future care should be at the rate of 3 hours a week. The plaintiff initially claimed 20.5 hours but late in the day increased the claim to 40 hours. The increased claim appeared to be coincidental with a realisation that the maximum rate for payment under the Act was $16.00 in lieu of the $23.33 initially claimed. In my view a reasonable amount for future care involving the plaintiff's wife in cleaning up after him and occasionally providing him with emotional support when averaged over the plaintiff's life is 8 hours a week. This amounts to 8 hours @ $16.50 x 43.67 at 5% multiplier which amounts to $123,842.40. 79 The total award of damages is $1,495,027.73. 80 The amount paid by the defendant of $244,730.43 is to be deducted. 81 Interest on the past economic loss has been agreed as $16,000.00. 82 The net award is, therefore, $1,266,297.30. 83 There will be a verdict for the plaintiff in the sum of $1,266,297.30. The defendant is to pay the plaintiff's costs up to 8 June 2000 on party party basis, thereafter on an indemnity basis. There will be judgment accordingly.

Last Modified: 03/27/2001 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.

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (7)

Cited By (1)