Wharekawa v AEA Constructions Pty Ltd; Building Partners Pty Ltd v AEA Constructions Pty Ltd

ty Act 2002 (NSW) Evidence Act 1995 (NSW) Superannuation Guarantee (Administration) Act 1992 (Cth) Workers Compensation Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) Aust Torts Reports 81-955 Cox v Fellows [2013] NSWCA 206 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191; [2013] NSWCA 482 Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175 Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Shaw v Thomas [2010] NSWCA 169 Vairy v Wyong Shire Council [2005] HCA 62 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 Wyong Shire Council v Shirt (1979) 146 CLR 40; [1980] HCA 12 Texts Cited: Mr D Villa, Annotated Civil Liability Act 2002 (NSW), 3rd Ed, Lawbook Co, Sydney, 2018 Category: Principal judgment Parties: Raymond Wharekawa (plaintiff) AEA Constructions Pty Ltd (first defendant/cross-claimant) Building Partners Pty Ltd (plaintiff/cross-defendant) Representation: Counsel: Mr David Higgs SC/Mr David Campbell SC/Mr Andrew Davis (plaintiff, Wharekawa) Mr Morris SC/Mr John Catsanos (plaintiff/cross-defendant, Building Partners) Mr John Maconachie QC/Mr Mitchell Davis (first defendant/cross-claimant)

Solicitors: Leslie Heinrich, RMB Lawyers (plaintiff, Wharekawa) Stephen Lee, Stephen Lee Legal (plaintiff/cross-defendant, Building Partners) Bryan McMahon, McMahons Lawyers (defendant) File Number(s): 2015/111482; 2016/129877

Judgment

1. On 9 November 2012 the plaintiff, Raymond Wharekawa, was working as a builder's labourer in a terrace house at No 42 Windsor Street, Paddington, when a nail fired from an explosive powered tool on the adjoining property (No 40) struck him in the left temple. He was 28 years of age. The workman who fired the nail gun was Mr Ian Box (since deceased). Mr Box was employed by AEA Constructions Pty Ltd (AEA). The plaintiff claims that his injuries from the accident have prevented him from returning to work as a builder's labourer. He has brought an action against AEA for damages in negligence. AEA denies that it was negligent and disputes the extent of the plaintiff's resulting injuries. It also contends that the plaintiff was contributorily negligent and/or that he was injured solely through the negligent fault of his own employer. As the plaintiff was not engaged by AEA his claim against it is governed by the Civil Liability Act 2002 (NSW), including the regime under that Act for assessment of damages.
2. At the time of the accident the plaintiff was employed by Building Partners Pty Ltd (the employer). In that employment he was engaged upon an extensive renovation of the terrace house at No 42. Under the Workers Compensation Act 1987 (NSW) the plaintiff has been paid benefits by the employer. The employer has brought a separate proceeding against AEA alleging that the plaintiff's injuries were caused by the negligence of AEA through its employee Mr Box and claiming indemnity under s 151Z(1)(d) of the Workers Compensation Act for such compensation as the employer has paid to the plaintiff.
3. By way of defence to the employer's action AEA both denies negligence and repeats its assertion that the sole cause of injury to the plaintiff was his own contributory negligence and/or negligence of the employer. The allegation of negligence on the part of the employer is particularised as failure to identify the hazard arising from AEA's use of the explosive powered nail gun on its site adjoining the employer's building site and failure to take reasonable steps to eliminate or minimise any risk to the plaintiff arising therefrom. AEA claims indemnity from the employer in respect of any damages awarded against it in favour of the plaintiff.
4. The plaintiff's action against AEA, the employer's action against AEA and AEA's cross-claim against the employer have been heard together. Evidence in each proceeding has been received as evidence on all matters in dispute. In each proceeding AEA takes issue with the extent of the plaintiff's injury and ongoing disability as a result of the nail gun accident.

Circumstances of the accident

1. I base my findings about the circumstances in which the accident occurred upon written statements and oral evidence of the plaintiff, of Mr Craig Anderson (the site foreman to whom the plaintiff was responsible at No 42) and of Messrs George, Damien and Anthony Alexiou (three brothers who were principals of AEA). I have also relied upon photographs and sketches of the scene of the accident and an email from the late Mr Box to Messrs Alexiou dated 13 November 2012. This was received under s 67 of the Evidence Act 1995 (NSW). A report of Dr Buckland, an expert in the construction industry, is also relevant.
2. Numbers 40 and 42 are adjacent properties on the north side of Windsor Street, with their frontages facing south. Number 40 is to the west and No 42 to the east. The residences on each are constructed close to the street frontage. The renovations being carried out on both properties in November 2012 involved demolition of structures and excavation at the rear (north) to permit construction of a garage on each property.
3. On 9 November 2012, from a position at the rear of No 42, Mr Anderson was able to look across the rear of No 40 and observe, on the far side of that property, a common wall between No 40 and No 38. Prior to 1:30 pm on that day Mr Anderson observed employees of AEA affixing plastic sheeting to that common wall, apparently in an endeavour to weatherproof it temporarily. As they performed this work Mr Anderson "heard the charges of a power charged nail gun". The plaintiff also heard these shots and was aware that they were associated with the temporary weatherproofing of the No 38/No 40 common wall, at the rear of those properties.
4. From about 1:30 pm on 9 November 2012 there was a heavy fall of rain which caused the workmen at No 42, including the plaintiff, to remove power tools and electric extension leads from around the site and place them under cover. The rain lasted for about half an hour. After this the plaintiff, instructed by Mr Anderson, commenced to re-lay the extension leads and to re-position the power tools for resumption of work. For this purpose he was at the rear or northern end of the remaining house structure at No 42. He was on the eastern side of the property furthest away from No 40 and near to a stairway leading to an upper level.
5. The party wall between Nos 40 and 42 was of double brick construction without a cavity, 230 mm thick. In every fifth course the bricks were laid at right angles to the alignment of the wall, forming a bond between the two single brick component walls. This double brick wall had been constructed in the mid to late 1800s. The bricks were of a material known as sandstock which is "quite soft". They had been laid with limestone mortar, which is "very soft" and has a propensity to crumble.

The plaintiff's injuries and treatment

1. In oral evidence the plaintiff described the effect of the nail impact to his temple as being similar to being hit in the head by a bat. He had been bending down at the waist and was straightening up when the nail struck. The impact jerked his head to the right. He grasped the vertical support of the stair rail, near to which he was standing, and steadied himself. He was not knocked to the ground. He cried out in pain and Mr Anderson came straight to his assistance. The nail was embedded in and protruding from his temple. He was helped to the ground where he lay until paramedics arrived. The plaintiff was "ambulant with assistance" and was conveyed to hospital in a seated position in the ambulance. On the way he was treated with morphine to relieve pain at the site of the injury.
2. Upon admission to the Emergency Department at St Vincent's Hospital in Darlinghurst at 2:43 pm the plaintiff was assessed for signs or symptoms of brain or other neurological damage. Radiological studies of his head and neck were performed. These showed that a depressed fracture of the skull had been sustained. The bone in the vicinity of his temple had been displaced approximately 5 mm inwards. The nail had penetrated approximately half the thickness of his skull. No damage to the functional tissue of the brain was detected. The dura was not penetrated. There was no intracranial haemorrhage or brain contusion. These radiological results satisfied the on-duty neurosurgeon and neurological registrar that it was safe to remove the nail under local anaesthetic. That was done at 4:30 pm.
3. The plaintiff complained of continuing headache after the nail had been removed. He was taken from theatre to the Intensive Care Unit (ICU). Twenty-four hours after his admission to the hospital, upon mobilisation of the plaintiff to assess him for discharge, he displayed signs of neurological damage. His gait was ataxic and control and power of his lower limbs was diminished. Further radiological examination of his cervical spine was undertaken to try to find the cause of these symptoms.
4. A computed tomography (CT) scan on 12 November 2012 showed the plaintiff had a "broad based disc bulge at C3/C4" and that the disc was touching the thecal sac (the membrane which surrounds and encases the spinal cord). Magnetic resonance imaging (MRI) of the cervical spine on 13 November 2012 revealed that the facet joints between the C3 and C4 vertebrae (being synovial joints surrounded by a fibrous membrane or capsule) exhibited osteophyte development (bony growth) and hypertrophy (swelling of the joint capsules). The disc and facet joint pathology at the C3/C4 level was attributable to degeneration which predated the nail impact.

Duty of care owed by AEA and breach

1. The plaintiff's claim is pleaded solely as a breach of duty owed to him directly by AEA itself. He does not in terms allege vicarious liability of the company for breach of a duty owed by its employee Mr Box. The Ramset explosive powered nail gun being operated by Mr Box, when used with the yellow grade charges which he had selected, was capable of firing nails through solid materials such as timber and into, if not through, still more dense materials such as masonry. Mr Box knew that. At the latest, by the time he came to fire the shot which caused the plaintiff's injury he knew that the tool used in conjunction with a yellow charge had the capacity to penetrate bricks. This was evident to him from the results of the four shots by which the two timber blocks had been affixed to the party wall.
2. Mr Box had operated this tool regularly over nine years of employment with AEA. From this I infer the capacity of the device was well known to Mr Box even before he fired the first four shots which fixed the timber blocks. His knowledge is attributable to AEA. AEA was also aware through its principals, Messrs Alexandriou, that an explosive powered nail gun was in use on the site and it ought reasonably to have known of the penetrative capacity of nails fired by this tool using yellow charges.
3. Self-evidently, as the gun used in conjunction with yellow charges could drive a nail into timber and brick, should a nail be fired into materials of insufficient density and resistance to stop the nail, it could travel at significant velocity through the air. Again self-evidently, a nail so fired could cause physical harm to any person in its path. I have recorded above at [9] my findings that the party wall was constructed of low density masonry, incorporating mortar joints of still lower density. I infer that AEA knew this through Mr Box, he having worked at the surface of the party wall on the No 40 side. As the photographs in Exhibit C reveal, the party wall had no render over the brickwork on the No 40 side. Even if Mr Box had not in fact appreciated the low density and uneven quality of the wall, he (and AEA) ought reasonably to have known of this. I infer from the evidence of Mr Anderson and Messrs Alexiou that the characteristics of brickwork in nineteenth century Paddington terrace houses were at the time well known to builders who worked on such houses in the locality.

Not an obvious risk

1. At pars 20 and 21 of AEA's defence it is alleged that the plaintiff's injury resulted from the realisation of an obvious risk. The following sections of the Civil Liability Act are invoked: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.
2. None of these sections has any application to the present case because, in the circumstances proved, the risk of a nail being fired through the party wall and across No 42 Windsor Street could not be regarded as one that "would have been obvious to a reasonable person in the position of" the plaintiff. I am satisfied on the balance of probabilities that the plaintiff did not know a nail gun was in use at No 40 at the time he was struck or in the immediately preceding period. I accept his evidence that he did not hear any shots prior to the one which resulted in the nail embedding itself in his temple and that he did not even hear that shot. The earlier shots, fired before 1:30 pm into the common wall of No 38/ No 40, were fired in a direction away from No 42. The plaintiff's knowledge that a nail gun was in use at that time and in that manner is not relevant to the alleged "obvious risk" of the usage of the nail gun after 1:30 pm.

The risk was not "inherent"

1. In pars 22 and 23 of its amended defence AEA alleges that the injury to the plaintiff as a result of the nail striking and embedding itself in his temple "was caused or contributed to by the materialisation of" a risk which could "not have been avoided by the exercise of reasonable care on the part of AEA". AEA relies upon s 5I of the Civil Liability Act, as follows: 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
2. Again I find unrealistic the suggestion that the risk of shooting in the head with a nail gun a worker on an adjoining building site could not have been avoided by the exercise of reasonable care. If the materialisation of such a risk was truly unavoidable as an incident of use of a nail gun, then reasonable care in the performance of building work would require that use of the tool be abandoned. Such an explosive powered tool is not indispensable to construction work and was not so at the time of this incident.
3. There are other ways of fixing timber blocks to masonry walls. A common method is to drill a hole in the brickwork with a rotary percussion drill, insert a plastic wall plug or a timber dowel and drive a screw through the timber which is to be affixed and into the wall plug or dowel. Alternatively a dynabolt may be used, inserted into a pre-drilled a hole in the masonry and fixed in place by the expansion of a sleeve around the bolt, which occurs when it is tightened. A third method is to drill a small diameter hole and drive into it a masonry nail with a pre-attached plastic sleeve which expands as the nail is driven and grips the internal diameter of the hole. All of these alternatives are matters of common knowledge. They can be implemented with fixings which are widely used in Australia and are readily available as stock items from retail hardware stores throughout the country.
4. For these reasons I reject AEA's defence of inherent risk under s 5I of the Civil Liability Act.

No contributory negligence of the plaintiff

1. By pars 18 and 19 of its amended defence AEA has pleaded that the plaintiff's injury resulted from contributory negligence on his part and has claimed a reduction of 100% of its own liability. The particular of contributory negligence is failure to wear a construction safety helmet, which is said to have involved exposing himself to an "obvious risk" and to an "inherent risk" within the meaning of the Civil Liability Act. In par 25 of AEA's amended defence to the employer's amended statement of claim a further particular of contributory negligence is given, namely, failure of the plaintiff to warn his employer that he could hear explosive power tools being deployed in the adjacent premises.
2. I have found that the plaintiff was unaware of the use of an explosive powered nail gun in the adjoining premises during the period shortly before and leading up to the firing of the shot which struck him: see [12], [39]. I therefore reject the additional particular provided in AEA's defence to the employer's claim. Even if the plaintiff had heard any of the four shots of the nail gun fired immediately before the one which hit him, I am satisfied that he could not have been aware that a nail gun was being used against the party wall aimed towards and across No 42, towards the location where the plaintiff was standing (see [40]). He could not possibly have known that (and nor could any reasonable person in his position) because the activities of Mr Box were concealed from his view by the party wall and because neither Mr Box nor anyone else on behalf of AEA issued any warning to the workmen on No 42.
3. Section 5R of the Civil Liability Act provides as follows: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
4. From the above findings that the plaintiff, acting reasonably, was unaware of the risk to which he was exposed by AEA's activities, it follows that a reasonable person in his position would not have taken any precaution against the risk. I have earlier rejected AEA's contentions, which are repeated in support of its contributory negligence argument, that the risk was "obvious" and/or "inherent" in the statutory sense: see [37]-[4645] above.

No breach of duty by the employer

1. Section 151Z(2) of the Workers Compensation Act is concerned with situations, such as the present, where an injured worker has brought proceedings against a third party (in this case AEA) for damages in respect of an injury for which compensation is payable by the worker's employer under the Act. The subsection provides for adjustment to the amount of damages the worker may recover from AEA if it should be found that the employer was a tortfeasor liable in respect of the same damage. AEA has invoked this provision by par 24 of its amended defence to the plaintiff's statement of claim, alleging that the employer was "wholly liable for the accident and its contribution as a joint tortfeasor is 100%".
2. Further, in AEA's defence to the employer's amended statement of claim (in the separate proceeding which the latter has brought under 151Z(1)(d) of the Workers Compensation Act to recover the compensation which the employer has paid to the plaintiff) AEA has alleged that the employer breached its duty of care owed to the plaintiff.
3. I reject AEA's contention, in both proceedings, that the employer breached its duty of care owed to the plaintiff. I hold that the relevant risk, as identified at [32] above, was not reasonably foreseeable to the employer. That is, it was not a risk of which the employer knew or ought to have known. Accordingly, there arose no duty to exercise care with respect to this unforeseeable risk and there is no liability in negligence: Civil Liability Act, s 5B(1)(a). I so hold for the following reasons.
4. First, I am satisfied that the employer, through its site manager at No 42 (Mr Anderson), did not in fact know that the nail gun was being used against the party wall and perpendicular to it so that its line of fire was across No 42 where he and the plaintiff were located. Nor could a reasonable person in Mr Anderson's position have known that. The wall blocked his view, just as it blocked the plaintiff's view.
5. Secondly, Mr Anderson (and hence the employer) did not know and could not reasonably have known what grade of charge was being used, or that the task was to affix timber to the wall, or what thickness of timber was involved. In short, neither Mr Anderson nor any reasonable person in his position could have had any understanding of the risk of complete penetration of a nail through the wall, even if he had known that nails were being fired perpendicular to it in the direction of No 42.

Causation of damage to the plaintiff's spinal cord, in medical terms

1. Two neurosurgical specialists called by the plaintiff, Professor Fearnside and Dr Winder, are of the opinion that the MRI of 13 November 2012 and the plaintiff's altered gait and compromised balance as observed by the physiotherapists in the ICU on and after 10 November 2012 indicate that the sudden movement of the plaintiff's head when he was struck by the nail caused the pre-existing disc bulge at C3/C4 to compress his spinal cord at that level.
2. Professor Fearnside considered that the nail strike to the plaintiff's temple "must have caused some movement of his head". He based this view upon consideration of the energy of the impact, which was indicated by the embedding of the nail in the plaintiff's skull and the resultant depressed fracture. He gave this opinion as to the causal mechanism of the compression injury to the plaintiff's spinal cord, which he considered was in evidence in the MRI scan of 13 November 2012: if he had [-] and he did have [-] cervical canal stenosis, or a narrowing of the vertebral canal at the C3‑4 level, which […] would have [been] pre‑existing and which was present [in] the MRI scan on 13 November, then that would certainly act as a vulnerability to injury, such that the energy of impact would necessarily or could be less than that which would cause the same injury in a normal neck. So his neck at that time wasn't normal.
3. Professor Fearnside said: when there's a discreet injury to the spinal cord there is swelling, that is to say, there's transfer of fluid and there's more water in the spinal cord at that level which can disrupt the nerve fibres. And there are certain inflammatory mediators which are also released from the injured tissue. The Professor said that the excess water in the spinal cord associated with injury to it would cause an "increased signal" in the MRI scan. Such an increased signal was reported in the scan of 13 November 2012, at C3/C4.
4. The Professor interpreted the MRI report as having revealed a "circumferential narrowing of the vertebral canal", contributed to by both the bulging disc and the bilateral osteophyte complexes and facet joint hypertrophy. He said with respect to the facet joints: the capsules get thicker and the capsules can intrude on the vertebral canal causing it to narrow.
5. Professor Fearnside further elaborated his opinion as to the causal mechanism as follows: where there's narrowing [of the spinal cord canal, by bulging of a disc and/or hypertrophy of facet joint capsules], that can cause a blow to the spinal cord if [-] it's of sort of a momentary movement of the vertebral column at that level and it doesn't need to be a sustained compression, it can just be a single blow that can cause the spinal cord injury.

Absence of record of neurological symptoms immediately following admission

1. AEA's counsel cross-examined the plaintiff's medical experts on the St Vincent's Hospital records, which indicate that no loss of control or power in the plaintiff's legs was detected by medical staff during the first 24 hours after his admission. The records show that he suffered no loss of consciousness in connection with the nail gun incident. His Glasgow Coma Score was 15/15 when the ambulance brought him to the Emergency Department. A triage assessment on admission did not reveal any clinical signs of change to his spinal cord at the cervical level. Both arms and legs were found to have normal power. This was assessed with the patient lying down.
2. At 2:50 pm on 9 November 2012 Dr Brooks, an unaccredited neurosurgical registrar, examined the plaintiff. He recorded that power in all four limbs was "5/5", again assessed with the patient supine. Yet another examination was made at 5:30 pm on 9 November 2012, upon the plaintiff arriving at the ICU after removal of the nail. Power was again found to be "5/5" in all limbs. At this time reflexes were recorded as "++" in both arms and "++↓" in both legs. Dr Winder gave evidence that these abbreviations signified elevated reflexes consistent with spinal cord involvement. Dr Cochrane interpreted the abbreviations as indicating normal reflexes. I am not able to resolve this difference without evidence from the person who made the observations and wrote the notes. I therefore cannot determine whether or not the plaintiff was hyperreflexive late on the afternoon of his admission.
3. The plaintiff continued to complain of pain late in the afternoon of 9 November 2012 and was given morphine at intervals. The following morning, 10 November 2012, he was able to mobilise, apparently with assistance, to the toilet and to wash. At 9:25 am a further examination again showed he was able to move "all limbs to command" and had "5/5 power" in each case, with nil deficit. Nursing notes from that time record that he was "mobilised". A CT scan of the brain was carried out at 10:17 am. The depressed fracture of the skull remained visible on this. The radiologist's report stated that no intracranial haemorrhage could be identified nor any infarct or hydrocephalus (fluid in the cavities within the brain).
4. At 2:00 pm on 10 November 2012 the plaintiff was seen by another unaccredited neurosurgical registrar, Dr Lukins. He discussed with Dr Winder both the recent CT scan of the brain and his own clinical observations of the patient. As recorded, those observations were that the plaintiff was stable and continued to complain of a mild to moderate headache. Dr Winder considered that the plaintiff could be discharged the next morning, 11 November.

Spinal cord damage not caused by previous incident

1. The plaintiff was born on 23 July 1984. He has acknowledged that when he was either 14 or 15 years of age (that is, in 1998 or 1999) he was involved in a snowboarding accident which caused him temporary paralysis. It is also common ground that on 17 September 2007 he was seriously assaulted and knocked to the ground, striking the back of his head on a paved surface. Upon hospitalisation on the latter occasion CT imaging of his cervical spine was performed. The radiologist's report on that occasion noted: no acute fracture or disturbance of alignment. The pre-vertebral soft tissues outline normally.
2. The plaintiff tendered an image from the CT scan of September 2007, being a sagittal (side view) cross-section. This appears to show a small area of high radio opacity in the spinal cord at the C3/C4 level. In a report of 3 November 2017 Dr Cochrane expressed the opinion that this "could represent previous blood product, and on balance of probability I consider it likely that [the plaintiff] had pre-existing spinal canal stenosis and a proximal cord lesion predating the work-related injury of 9 November 2012". Dr Cochrane thought that what he interpreted as a blood speck in the CT image was probably associated with the earlier snowboarding accident rather than with the September 2007 assault.
3. Dr Winder disagrees with Dr Cochrane's interpretation of the 2007 CT image for four reasons. First, in Dr Winder's view CT scans notoriously exhibit artefacts. He considers that the area of high opacity is likely to be an artefact rather than evidence of blood product. Secondly, he reviewed the axial images from the same CT study and found no indication of blood product or lesion on the axial view. In his opinion that view would be more accurate for identifying a spinal cord lesion if one were present. The conflicting evidence of the doctors on these first two points is evenly weighted and I am not able to determine whether earlier spinal cord damage is or is not shown in the 2007 CT image on the basis of these points. Dr Cochrane did not accept Dr Winder's reading of the relevant area of opacity in the sagittal aspect as a mere artefact. He construed this part of the image as "an isolated, somewhat ovoid region of high density" whereas he thought "an artefact will typically be a streak phenomenon". Further, he interpreted the axial image as including "a streak of high density within the substance of the anterior spinal cord" apparently, in his view, corresponding with the sagittal scan.

Plaintiff's post accident lower limb neurological symptoms and treatment

1. The plaintiff gave evidence that after he was discharged from the Sacred Heart rehabilitation hospital on 21 November 2012 he continued to suffer from poor balance and difficulty with stairs throughout 2013. He said that his balance improved up to mid 2013 but never resolved entirely. He felt unsteady walking uphill or downhill and needed a support or a rail or to hold his partner's hand. He could not run or stand on one leg during 2013. His balance got worse from mid-2013 and from that time he experienced numbness in his thighs. His account of difficulty walking, maintaining balance and climbing up and down stairs, from when he returned home in late November 2012, was corroborated by his then partner who gave evidence that at that time she had to help him with everything except the simplest domestic tasks.
2. These ongoing disabilities with respect to his lower limbs were also confirmed by records of the St Vincent's Outpatients facility from 13 December 2012, when he attended for assessment and rehabilitation. He then reported that he still felt weak in his legs and he was observed to be unsteady on slopes and uneven ground. He needed to use a rail to go up and down stairs and found it difficult to walk heel to toe. The plaintiff commenced physiotherapy with Dr Schneider from January 2013. Dr Winder saw him on 10 January 2013 and due to concern about the possibility of further damage to the spinal cord recommended a repeat MRI scan in six weeks.
3. A close friend of the plaintiff, Ms Ching, also confirmed his loss of mobility following the accident and continuing into 2013. She said he made some improvement with respect to balance and control of his legs in the first half of 2013 but from then until he underwent surgery on 25 November 2013 she thought that his balance and leg control declined.
4. On 12 September 2013 Dr Winder reported to the plaintiff's general practitioner that he remained "mildly hyper reflexive of the upper and lower limbs consistent with his cord contusion injury". Dr Winder considered at that that time that the plaintiff was at high risk of further damage to his spinal cord from the C3/4 disc protrusion and sought approval from the workers compensation insurer for an MRI scan, preliminary to performing anterior cervical discectomy and fusion to decompress the spinal cord. The recommendation for this operation was repeated on 23 October 2013. On 1 November 2013 Dr Winder assessed the plaintiff's symptoms as worsening and warned his GP of the risk of "permanent neurological damage". He sought urgent approval to carry out the surgical procedure he had recommended.

Principles concerning the plaintiff's pre-existing cervical degeneration

1. AEA contends that because the plaintiff's pre-existing cervical spinal pathology (bulging disc, hypertrophic facet joint capsules and osteophyte growth at C3/4) was advanced and progressive: 1. within one year or at most four years "the chances are" that pathology would have impacted upon his spinal cord in such a way as to "declare itself" by causing neurological symptoms; 2. the "great proportion of the sequelae of the injury to his spinal cord, including the need for operative stabilisation and its consequences would have been suffered by the plaintiff"; 3. those consequences would have included his incapacitation from heavy labouring work and 4. so far as neurological deficits in the plaintiff's legs are concerned, the only consequence of the nail gun accident has been to bring forward the damage to the spinal cord, the symptoms and disabilities and the need for surgery.
2. I accept the evidence of Dr Winder that the cervical spinal pathology seen on the 2007 CT scan and again visible on the November 2012 radiology (putting aside the increased signal from the cord) was of a degenerative nature and that it is a normal feature of such a condition that it was likely to have progressed from 2007 and would likely have progressed further from November 2012. At least, the broad-based disc protrusion was always likely to expand. Dr Winder said the plaintiff's disc protrusion had already compromised the spinal canal by November 2012 and need only have intruded into that space a further 1 or 2 mm (which he regarded as at least conceivable) for the disc to come in contact with the cord and "cause neurological symptoms and require surgery".
3. The doctor's evidence also establishes that the osteophytes had grown between 2007 and 2012 and that it is possible they could grow to the point where they would impinge on the cord. Progression of the plaintiff's cervical degeneration, causing either disc or osteophyte contact with the spinal cord, could manifest in neurological deficits and require an operation such as that carried out by Dr Winder in November 2013, even without there being any accident, impact, excessive extension or flexion of the neck or any other form of externally inflicted trauma.
4. Accepting that evidence as I do, there is introduced into the assessment of the plaintiff's damages the necessity to evaluate a hypothetical situation or circumstance. Had the nail gun incident not occurred: 1. would the degeneration in the plaintiff's cervical spine have progressed as Dr Winder says it was capable of doing; 2. would such progression have caused neurological symptoms, required surgery and left him with residual symptoms (all with substantially the same impact on the plaintiff as what he has in fact experienced commencing from 9 November 2012) and 3. what is the degree of likelihood of all that having occurred?

Degree of likelihood of progression of disc degeneration

Professor Fearnside

1. Professor Fearnside was asked about the broad-based disc bulge at C3/4 as reported from the MRI scan of the plaintiff carried out on 13 November 2012. The bulge protruded rearward toward the spinal canal over a wide section of the disc base causing moderate central canal stenosis. Professor Fearnside agreed that this protrusion would have predated the scan (and hence the accident) by at least many months, in his view by years. He considered that the other degenerative changes picked up by the scan (facet joint hypertrophy and osteophyte formation) must also have been "there and developing for a long time".
2. Professor Fearnside said that such a degenerative spinal condition is usually stable but can progress. He was not asked to express the degree of likelihood of progression, to any particular stage, any more precisely than that, either for the plaintiff or for patients with this disorder in general. Professor Fearnside said that with a disc at C3/4 bulging to the degree shown in the MRI of 13 November 2012, the plaintiff would have been at increased risk of suffering "serious cervical pathology" from various types of trauma to which he would be exposed in the ordinary course of his life. For example, the doctor agreed that if the plaintiff was dumped by a wave while body surfing or suffered sudden movement of his head in a rear end vehicle collision or made heavy contact in a game of rugby league, this could occur.
3. By agreeing that such events could cause "serious cervical pathology" I take Professor Fearnside to be referring to contact of the disc with the spinal cord similar to what, as I have found, occurred as a result of the nail gun injury. The doctor agreed that heavy physical labouring work can also bring about such a result. From the other answers given I infer that this could occur, for example, if the plaintiff accidentally knocked his head severely against an overhead beam or inadvertently was struck in the head by materials being carried by another workman. Unsurprisingly the doctor did not purport to offer any estimate of the degree of likelihood of any of these things occurring but the effect of his evidence is that relatively minor impacts, such as might be considered not uncommon in the life of an active young man engaged in physical work and leisure activities, would be capable of causing damage to his spinal cord because of the increased vulnerability created by the compromised central canal at C3/4.

Dr Winder

1. I have already referred briefly to Dr Winder's view of the progressive nature of the plaintiff's disc degeneration at C3/4 (see [120]-[121]). The doctor said that, having regard to the progression of the disc bulge evident from comparison of the radiology from 2007 with that from November 2012, he was at a higher risk of suffering spinal cord damage from relatively minor head impact than a person who did not have such developed canal stenosis. Without such external impact Dr Winder did not think it likely that pressure on the spinal cord, sufficient to require cervical surgery, would have occurred just as a result of progression of the disc bulge or osteophyte formation. He said: Is it likely? No, we've got plenty of asymptomatic patients who have cervical canal stenosis who do not require surgery.
2. However the doctor acknowledged that development of the bulge to the point of requiring surgery, even without external impact, was possible. He gave these answers: Q What about if that disc bulge progressed, and made the stenosis more severe? A The only way that would be picked up is if he got a neurological complication, and if it absolutely caused one then he would be getting surgery, that would be our recommendation. Q Could that occur that this could continue to bulge and extrude into the space, and start to impact just by squeezing on the cord, as opposed to being jolted against it? A Absolutely, it is possible, and that's a normal part of degenerative change with a broad based disc protrusion that it can expand, and if it already has a compromised canal, it only needs to compromise it by potentially 1 or 2 millimetres over a lifetime, that is possible that could cause neurological problems and require surgery Q What about the growth of the osteophytes? A That's unknown. They can grow, and his clearly have, comparing the 2 scans, but then it cannot get any worse. Some do get worse, we see cases where the osteophytes have increased significantly, requiring further surgery. Q So they may grow to the point where they are growing against the cord? A Yes. Q What are the factors? A We don't know. … Q … in terms of quantifying the risk [of] him coming to surgery just purely for degenerative changes, is that something you can do? A I don't think you can. To my knowledge, there is no longitudinal study which has done comparisons [from] single level narrowing of the spinal canal to say whether you are likely to have surgery.

Dr Cochrane

1. In Dr Cochrane's report of 6 June 2016 he said: … Mr Wharekawa was at risk of suffering a neurological deficit related to the cervical spine pathology at any time with any incident that may have resulted in, for example, hyperflexion, hyperextension of his neck, a fall, or axial loading to the cervical spine. … … I think it likely that Mr Wharekawa was at risk of developing lower limb pathology from cervical spinal cord compression due to what I believe to be significant pre-existing pathology at the C3/4 level. … I think it possible that with or without the nail gun injury Mr Wharekawa may have developed significant cervical spinal cord pathology in his lifetime and might have the likely pre-existing degenerative problems and effacement of the cervical cord at C3/4.
2. In oral evidence Dr Cochrane said that, by reason of the broad-based disc bulge at C3/4 which was present before the nail gun injury, the plaintiff's "reduced calibre spinal canal and a degree of compression on the spinal cord" was such that "even a relatively minor trauma could result in a significant neurological deficit in the future". As examples of the kind of minor trauma which would be sufficient, he referred to axial loading on the spine by the plaintiff falling on his head (for example, "diving in and hitting a sand bar") or by a weight dropping on his head or shoulders. Alternatively spinal cord injury could be caused by "whiplash injury in a car" or by tucking his head in upon falling to the ground. Dr Cochrane thought that if the plaintiff stood up and bumped his head on solid material above him on a building site, for example, contact of the disc with the spine and consequent cord damage could result.
3. Dr Cochrane said there was no clinical or research data which would enable him to quantify the degree of risk that an existing bulge to a C3/4 disc would come in contact with the spinal cord and cause neurological symptoms. However, anecdotally based on his clinical experience, he considers that spinal cord injury of this nature would be 5 to 10 times more likely in a person with a pre-existing disc bulge than in a person with no such pre-accident pathology. It is also his clinical experience that spontaneous disc protrusion in patients with degenerative disc conditions like that of the plaintiff is relatively common, occurring in one third to one half of patients presenting with neurological symptoms. He regards patients with broad-based long-standing disc protrusions such as the plaintiff's as at higher risk of a spontaneous pathological event than patients without such disc degeneration.

Conclusion

1. As mentioned at the outset of these reasons, the plaintiff was 28 years old at the date of the accident. He acknowledged that he had not done well at school and that limitations with respect to formal learning had contributed to him not completing an apprenticeship as a mechanic. He was fit and strong and was a capable labourer. Labouring was work that suited his abilities. He liked the work and chose it because it occupied him outdoors. The plaintiff was reliable and was valued by his employer. I am comfortably satisfied that he would have continued as a builder's labourer for most of the remainder of his working life had this accident not occurred. He might have progressed to greater responsibility on building sites but the physical aspects of his work would have remained the same.
2. The plaintiff planned to seek work in Western Australian mines or Queensland, possibly in 2013. If he had been successful in that, it is still likely that he would eventually have returned to city living, in view of his social ties to Sydney, and it is likely that he would then have returned to labouring in the building trade. Having regard to the narrow range of the plaintiff's skills it is likely that any work he obtained in the mining industry would have been in a labouring capacity. It follows that throughout his working life the plaintiff would always have been exposed to the risk of aggravating the degeneration of his C3/4 disc, perhaps acutely, through heavy manual exertion and exposure to accidental knocks. His risk of accelerating the degeneration would have been higher than for a person in a sedentary occupation.
3. The plaintiff had played rugby and skied and enjoyed rollerblading when he was younger. By the time of the accident he had moved on from all of those activities. He continued to enjoy swimming, body surfing and boogie boarding. These activities in the surf would have exposed him to risk of damage to his spinal cord by a mechanism similar to that of the nail gun accident. The plaintiff had been involved in physical altercations at licensed hotels in the past but the evidence does not suggest that at the date of the accident he continued to frequent such places at times or in circumstances which would have heightened the risk of him being hit in a manner which might cause contact with his spinal cord by the bulging disc.
4. I consider it highly likely the plaintiff's prolapsed disc would sooner or later have contacted his spinal cord, with consequences much the same as those which he experienced after 9 November 2012, including surgery. It is not possible to say when. He might have continued, for example, for, 12 years or 22 years, to age 40 or 50, with no such event. In a case such as the present where the hypothetical fact involves both the occurrence of an event and the number of years which will elapse before it occurs (if it does), it is not practical to apply a percentage-chance approach to achieve a strictly mathematical discount of damages. Isolating the degree of likelihood of an occurrence without the date when it will come to pass is not meaningful.

Manner of allowing for the risk of spinal cord damage in any event

1. To account for these circumstances in awarding damages for non-economic loss, I will (a) determine what percentage of a most extreme case is presented by the plaintiff's disabilities and suffering, on the basis that the neurological deficits for the whole of the balance of his life expectancy are attributable to the accident and (b) make a deduction from that percentage in recognition that there is a high probability he would at some time have commenced to suffer neurological symptoms and had to endure the surgery, even if the accident had not occurred. By that means I will attempt to quantify the proportion of a most extreme case which, in the plaintiff, has been caused by the accident.
2. In calculating future economic loss I consider that a discount to allow for the vicissitudes of life must be applied at a higher level than the usual 15%, to take account of my findings regarding the likelihood that neurological symptoms and a need for surgery would have arisen in any event. For reasons explained below, I find that the plaintiff's post-traumatic migraine syndrome has rendered him incapable of earning a living within the limits of his pre-accident aptitudes, independently of the impact of his neurological symptoms upon earning capacity. I do not consider that there is any significant degree of likelihood that he would have suffered this migraine condition if the accident had not occurred.
3. However the vulnerability to spinal cord damage has at all material times been of such a high order that, irrespective of this accident, it would likely have disrupted his working life at some time (with neurological symptoms, surgery and recovery) and thereafter narrowed the range of work he could do. For a man of his limited abilities such narrowing would make it hard for him to obtain continuous employment once he became unfit for heavy labouring. It would be unrealistic to assess the plaintiff's diminished earning capacity as if, but for the accident and the migraines, he would have worked full-time as a leading hand builder's labourer continuously to age 67.

Post-accident development of migraine

1. The plaintiff gave evidence that prior to the accident he experienced headaches only a few times a year, up to about 2010. The history he gave to Dr Tisch, his treating neurologist, as recorded in the doctor's report of 7 February 2014 is that he had suffered migraines "since his 20s which have occurred 1 or 2 times per year lasting up to 4 days". I regard the history given to Dr Tisch as the more reliable account. The plaintiff said his headaches prior to the accident in November 2012 were not as frequent nor as severe as those he suffered afterwards. He said prior to the accident they "did not stop me from working or interrupt me with my daily life".
2. The St Vincent's Hospital clinical notes record that the plaintiff complained almost continuously of headache from the day after the accident. He was prescribed Panadeine Forte and other analgesic medications throughout his hospital stay. After discharge on 6 December 2012 he continued to use Panadeine Forte to combat headaches about twice per week. He said that during the first half of 2013 his headaches "got better" but did not completely resolve. Their frequency fluctuated such that at times he experienced them "a few times a week", at other times "every single day".
3. When the plaintiff was later seen by Dr Tisch, his post-accident migraine was described by the doctor in these terms: Following the nail gun injury, Ray experienced almost daily migraines for the first few weeks. These were characterised by severe, constant, bifrontal headache associated with sonophobia, phonophobia, disequilibrium and imbalance. He would lie down in a darkened room. The headaches would last 6 hours, sometimes up to 24 to 48 hours. … The migraines gradually reduced in frequency over the following months … .
4. At some time during 2013 the plaintiff's then partner, Ms Jansen, observed that he suffered headaches which would cause him to be "writhing in pain until the painkillers he had taken kicked in. He was visibly and physically distressed as a result". When the plaintiff was reviewed by Dr Winder on 12 September 2013 he reported that he had "ongoing headaches which are occurring every three to four days, which he has been trying to manage with Panadeine". Dr Winder considered that mere management of the symptoms with analgesics was inappropriate.
5. Following the surgery of 25 November 2013 it appears the migraines worsened. On 6 February 2014 Dr Winder reported to the plaintiff's general practitioner as follows: He has unfortunately been debilitated by almost daily migraines for which he is having to lay down with the lights turned off in a darkened room because of the hypersensitivity of his eyes. This may well be a direct response secondary to his surgery which we can occasionally see and I feel he needs to be reviewed relatively urgently by a neurologist […] .

Cause of post-accident migraine

1. In Dr Tisch's opinion the migrainous headaches which the plaintiff has suffered from the day after the nail gun accident have been caused by that event. The doctor considers that the history of symptoms related above "is entirely consistent with a severe and persistent post-traumatic headaches [sic] migraine syndrome and whiplash". On the history given to him by the plaintiff Dr Tisch assessed that prior to the accident he had "occasional migraine, or shall we say, a susceptibility for migraine". In the doctor's experience when such a person suffers a blow to the head of the type that occurred here "the likely scenario is that the headache that they will develop in consequence to that will be more in keeping with migraine than an ordinary headache, because they are migraine susceptible".
2. In answer to my own questions the doctor said that he thought the mechanism of injury to the plaintiff's spinal cord was that the "bat-like violent blow and subsequent jolting and whiplash type injury to his neck" caused some part of the disc at C3/4 or some other part of the spinal structure to press against the spinal cord. He then gave these answers: Q From that to the symptoms of migraine, is the causal link fully understood in your specialty? A I think we need to be careful in attributing the migraine process entirely to the neck. Let's not forget that he also was impacted severely in the head and I think it's a combined thing. I think the local trauma to his head was also a significant driver for the development of post-traumatic migraine. Q Is that causal connection fully understood in your specialty? A It's well-described and there is abundant literature that after a head injury - and it does not need to be a head injury with loss of consciousness … even mild to moderate head injuries can be associated with post-traumatic headaches, the majority of which take the form of migraine, so called post-traumatic migraine, and that's indeed what I think he is suffering from.
3. Dr Tisch does not consider the fact that the headaches were not constant for the whole period following the accident up to the date of his surgery in November 2013 inconsistent with the attribution of this migraine condition to the nail gun accident. He said that the history is: very typical in post-traumatic headache and migraine. It's a fluctuating disorder with periods of exacerbation as well as periods of relative remission.

Psychiatric consequences of the accident

1. Two psychiatrists who have examined the plaintiff, Dr Jungfer (who was engaged by the plaintiff's solicitors) and Dr Selwyn Smith (engaged by AEA) have diagnosed him as suffering post-traumatic stress disorder ("PTSD") which they consider was caused by his experience of the nail gun incident. On the basis of the history taken by Dr Jungfer she said the disorder is characterised by intrusive recollections of the circumstances in which the plaintiff was injured, nightmares and a highly anxious reaction whenever he is exposed to a construction site environment.
2. After a second examination of the plaintiff on 25 May 2017 Dr Jungfer concluded that the plaintiff's PTSD symptoms persisted but had stabilised. She did not think any further "psychological intervention" was indicated. Dr Smith's diagnosis is PTSD "in partial remission". Dr Jungfer recorded that in May 2017 the plaintiff described ongoing feelings of low self-esteem and episodic depression and anxiety. She regards these symptoms as being caused by the PTSD. Dr Smith did not receive from the plaintiff any report of having experienced depressive symptoms. In view of the plaintiff's history of neurological symptoms following the accident, his experience of the surgery and recovery, his ongoing battle with episodes of migraine and his inability to return to the physical work to which he was so well suited, I accept that he does, at least from time to time, suffer low mood, loss of self-esteem and frustration with his situation. It would be very surprising if he did not.
3. The plaintiff reported to Dr Jungfer that since the accident his memory has become worse, his thinking has slowed and a pre-existing stutter has been exacerbated. Dr Smith was not told by the plaintiff that he had any cognitive impairment. There is disagreement between the psychiatrists as to whether heightened anxiety associated with the PTSD may be causing his stutter to worsen. I do not consider that these discrepancies in the evidence are capable of being resolved in the absence of some objective measure of cognitive ability and of speech impediment, before and after the accident. But I also do not think that this is important to the assessment of damages. The manner in which the plaintiff was able to give evidence on my assessment showed an ability to respond to questions, to express himself and to articulate reasonably, consistent with his admittedly modest level of education. His hesitancy of speech requires a degree of patience on the part of the listener. For the purposes of assessing damages, even if his stutter is somewhat worse than before it is not a significant disability and is not materially disabling with respect to his capacity for employment.

Non-economic loss

1. In determining the severity of the plaintiff's non-economic loss as a percentage of the most extreme case for the purposes of s 16 of the Civil Liability Act, I take into account the following factors: 1. The plaintiff suffered very considerable and distressing shock and local pain to the head and neck upon the impact of the nail and during the first days of recovery in hospital. 2. He has been affected by loss of balance, fluctuating during the first 12 months until his spinal fusion operation and gradually improving thereafter, culminating in a residual degradation of balance which will remain with him. 3. The plaintiff has had to undergo spinal surgery, including the complication of the operation through engorgement of the cord and attendant neurological deficits. 4. The plaintiff has suffered severe recurrent migraines which greatly interfere with his enjoyment of life. He will continue to suffer them indefinitely and will always require injections, approximately every 12 weeks, to reduce their severity as far as possible. 5. The plaintiff has suffered and will continue to suffer PTSD but not in a severely intrusive or debilitating form. He has suffered and will likely continue to suffer episodic depressed mood and frustration as a result of the limitations upon his physical capacities. 6. The plaintiff is now aged 33 years and has a life expectancy in the order of a further 50 years. 7. Allowing for the high degree of likelihood that the plaintiff would have suffered such symptoms and had to undergo such surgery at some stage of his life, nevertheless there is to be taken into account a reasonable chance that without the accident he may have had another ten or more of his younger and more active years free of such pain and suffering and a small chance that he would have escaped this altogether.
2. Assessing the plaintiff on the basis that all of his neurological symptoms as well as the migraines and PTSD, for the remainder of his life, are wholly attributable to the accident, I would find him to be 45% of a most extreme case. Making allowance for the likelihood of spinal cord damage in any event, as referred to at [142] and [173(7)], I would reduce the percentage of a most extreme case that has been caused by this accident to 35%. Applying that percentage to the statutory maximum amount of $612,500, the non-economic loss component of the plaintiff's damages is $214,375, which is to be rounded to $214,500 (see Civil Liability Act, s 16(4)).

Past economic loss and superannuation

1. I find that from the date of the accident up until trial the plaintiff has been entirely incapacitated from working in any role reasonably open to him, as a result of the combined effect of the neurological symptoms affecting his legs, the migraine attacks and PTSD. This finding is qualified to the extent that since about late 2014 he has been able to perform minimal casual work on the reception desk at the gymnasium where he trains, for which he has been remunerated with the value of a free gym membership and nominal payment. That work was initially on one day per week, for $30. At some date before 30 April 2016 (the date of Ms Vucovic's statement) he commenced to help on the gym reception desk two days per week, at $55 for 5½ hours. The work has been to a degree intermittent due to unpredictable disabling migraine attacks.
2. The incapacity from work throughout this period has been due in part to the plaintiff's poor balance as a result of neurological damage. This has precluded him from working on building sites. The PTSD and his inability to do heavy lifting because of the risk of further damage to his cervical spine have also precluded him from such work. I accept that for some of the period up to trial the plaintiff would have been physically capable of other unskilled work such as that of a storeman, a kitchen hand, a courier or driver (provided no heavy lifting were required). Those are occupations for which Dr Buckley, a rehabilitation physician, considered him physically fit as at the date of the trial. However the severity and unpredictability of his migraines in my view has disqualified him from such employment to date.
3. After assessing the plaintiff on two dates during the pre-trial period, Dr Buckley expressed the view that he was unemployable on the open market. He attributed this to the plaintiff's limited education, modest intellectual capacity and lack of skills or the capacity to acquire them, combined with residual balance deficits, constraints upon heavy lifting, PTSD and intermittently disabling migraines. I accept Dr Buckley's assessment.
4. The plaintiff was a permanent casual employee earning $846 net per week at the date of the accident. He would have worked only 48 weeks per year and, as a casual, would not have been entitled to holiday pay during the usual four week shutdown of the building industry from late December into January each year. It is reasonable to infer that he would have taken four weeks' holiday per annum. AEA submits that past economic loss should be calculated on the basis that he would have worked only 47 in each year, losing one week to sickness or other reasons for absence without pay. There is no evidence to justify a finding that he would have lost an additional week in every year for the past five, for such reasons.

1. On the authority of Najdovski v Crnojlovic (2008) 72 NSWLR 728; [2008] NSWCA 175 at [58] (Basten JA, Allsop P agreeing) I calculate the plaintiff's lost superannuation contributions up to the trial date at the rate applicable under the Superannuation Guarantee (Administration) Act 1992 (Cth) on the lost gross wages. The rate was 9% to 30 June 2013, 9.25% from then until 30 June 2014 and 9.5% thereafter. Rather than recalculate the past loss of earnings at gross figures and apply these varying rates, I will apply as an approximation 11% to the lost net wages. On that basis the lost superannuation contributions he would have received from Building Partners up to the date of the trial would have been $24,174. I disregard the residual earning of $40 per week in calculating that figure. He has not received any superannuation contribution from the gym.

Future economic loss

1. Mr Weatherall said he could not re-employ the plaintiff even if his balance and strength were not compromised, because of the unreliability of his attendance due to the post-traumatic migraine syndrome. Ms Vucovic, who has given him the part-time employment at the gym she operates, does not regard the plaintiff as employable in her type of business on a full-time basis, at least in part due to his inability, at short notice, to attend work when he suffers a migraine attack. She has experienced his unreliability in this respect but makes allowance out of friendship and a desire to help the plaintiff. AEA submits that Ms Vucovic's evidence demonstrates only "modest" unreliability as a result of the plaintiff's migraine attacks. I do not accept that as a meaningful characterisation of her evidence. In any event the degree of unreliability the witness was able to describe is qualified by the circumstance that she has only ever sought the plaintiff's services at the gym reception desk for part of one or two days per week. His unreliability to an employer requiring him to work five or six days per week would be a problem of an entirely different order.
2. AEA also submits that the plaintiff's employability should not be found diminished by reason of the migraines in the absence of an opinion from Dr Tisch to that effect. I reject that submission. The Court is able to make its own assessment of whether or not frequent and unpredictable absence due to migraine, for one or multiple days on each occasion, would affect adversely the plaintiff's prospects in the market for unskilled labour. I conclude that this characteristic of the plaintiff would make it impossible, in practical terms, for him to obtain regular full-time employment within the limited range of jobs for which he is suited.
3. The plaintiff contends that but for the accident he would most likely have worked to 67 years of age and that his future economic loss should be calculated on the basis of 34 years of earnings at the rate of $1,063 per week. The rate is based on the evidence referred to at [179]. AEA submits it is far more likely that he would only have worked in the building industry as a leading hard builder's labourer until, at most, age 60. That is, he should be regarded as having lost no more than 27 years of earnings. I accept AEA's submission but I consider the resulting calculation should be subject to further adjustments.

Past domestic care

1. The plaintiff advanced a claim for past domestic care, provided to him by his former partner Ms Jansen until the end of their relationship in February 2015. The period between 9 November 2012 and February 2015 has been broken up into stages, including periods when the plaintiff was hospitalised, and varying numbers of hours per week of assistance have been claimed for the respective stages.
2. I do not accept that any number of hours should be allowed for periods when the plaintiff was hospitalised. I have no doubt that Ms Jansen would have visited the plaintiff at those times and been attentive to him but I do not consider that there would have been "a reasonable need" for gratuitous care from her (within the meaning of s 15(2)(a) of the Civil Liability Act). The plaintiff was cared for in renowned hospitals on each occasion and there is no evidence that the nursing care had to be supplemented.
3. Ms Jansen gave evidence of the care she provided for the plaintiff when he was discharged from hospital in November 2012, from then until he was admitted for the spinal operation one year later, and again following his discharge and rehabilitation after that operation. The plaintiff and Ms Ching also described the nature and extent of care provided by Ms Jansen. His needs varied over the period from late November 2012 to about mid-2014. At times he needed assistance walking, particularly on slopes. He was unable to fulfil his share of household duties and Ms Jansen took up the shortfall. It was necessary for her to assist him with showering, dressing and other aspects of self-care during some periods when his balance was particularly poor. During periods when he suffered from severe migraine attacks everything about his self-care had to be done for him.
4. Estimates of how many hours this gratuitous domestic care may have required have been provided in elaborate reports by experts. Ms Jansen worked full-time as a schoolteacher during the relevant period and supplemented her income with weekend work at a hotel. The plaintiff's disabilities throughout the relevant period called for assistance which is well described in the evidence, in general terms. For this the Court can make an estimate of hours required, based upon ordinary human experience aided by the expert opinions.
5. I accept the plaintiff's case that between the plaintiff's discharge from the rehabilitation hospital on 14 December 2012 and the end of February 2013, a period of 11.5 weeks, Ms Jansen's necessary attention to his care would have required on average 1.5 hours per day. The plaintiff's claim of half an hour per day from the beginning of March 2013 until he was admitted to hospital for surgery on 25 November 2013 (38.4 weeks) is also reasonable and justified on the evidence.

Future commercial care

1. AEA concedes that the residual symptoms in the plaintiff's neck require that his motor vehicle should be fitted with a panoramic mirror at a cost of $542 (rounded). I will award that as part of his damages but I do not consider that any present need for other mechanical aids or rehabilitation equipment has been shown. There has not been shown any present need for the provision of nursing or domestic assistance on a commercial basis into the future. The plaintiff is fragile and vulnerable because of the damage to his neck, with loss of capacity for heavy lifting and residual loss of balance. I have found that these ongoing disabilities have a significant impact upon his ability to perform the work in which he was formerly engaged but I do not accept that they have eroded to any degree his present capacity to perform the everyday physical functions of living alone.
2. An expert report of Ms Alach, an occupational therapist, was tendered in the plaintiff's case. This was based upon an assessment of him made on 4 July 2017. On my reading of the report it demonstrates that he is fully capable of self-care in his own home. The only basis for Ms Alach recommending that he receive ongoing commercial care is that he may need it "for regular spring-cleaning, gardening and home maintenance when he moves to a larger home with a garden in the future". I regard that requirement as so speculative as not to warrant any allowance in damages. Ms Alach has also calculated a cost of case management of his rehabilitation needs and of vocational rehabilitation. Approximately $31,000 is claimed for these items but I consider that an allowance of $10,000 as a contingency for such future expenses is all that can be justified on the uncertain forecast of the plaintiff's future needs.

Past out-of-pocket expenses

1. The only past expenses which the plaintiff seeks to bring to account are the amounts expended by the workers compensation insurer and repayable to it. The amount to the date of judgment is $136,903.

Future medical expenses

1. With respect to future medical expenses, I accept the plaintiff's claim for $130,235 to cover ongoing Botox injections in accordance with Dr Tisch's prescription and prognosis. The plaintiff claims the cost of two consultations with a neurosurgeon per annum but this is not justified. Dr Winder did not support any such need. The plaintiff also claims for a visit to a general practitioner once every four weeks. Again this is unjustified. His continuing treatment by Dr Tisch will no doubt require the involvement of a general practitioner but an allowance for approximately two visits annually would appear ample. I will allow $2,500 for this, bringing the total for future medical expenses to $132,735.
2. The plaintiff also claims for ongoing medication at a rate of $20 per week, monthly physiotherapy sessions at a cost of $135 each and a "cushion" of $20,000 for remedial massage, gym membership and fitness programs. I do not consider that the evidence substantiates the need for any of these. He is not under a prescription for any medication apart from the Botox injections. I am unable to relate the proposed monthly physiotherapy sessions to his residual disabilities. His use of a gym is now recreational rather than rehabilitative. He has demonstrated (on film) that he is well able to use it without a "fitness program".

Fox v Wood component

1. Based on figures provided by the workers compensation insurer current to the date of this judgment the amount of $24,496 must be allowed to the plaintiff as the amount of income tax he has incurred on his workers compensation weekly benefits: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41.

Building Partners Pty Ltd claim under s 151ZD(1)(d)

1. Up to the date of this judgment the total of compensation paid to the plaintiff by the workers compensation insurer of Building Partners was $365,085.66. This includes the amount for medical expenses referred to at [198]. Building Partners is entitled to recover from AEA under s 151ZD(1)(d) of the Workers Compensation Act the amount of compensation it has paid, together with interest thereon (see Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270). Interest up to the date of this judgment is $ 67,999.

Damages total

1. The plaintiff is to be awarded damages comprising the following components: Non-economic loss $214,500 Past economic loss $214,084 Past superannuation $24,174 Future economic loss $631,411 Future superannuation $87,766 Past domestic care $10,172 Equipment for future care and contingency for rehabilitation costs $10,542 Past out-of-pocket expenses $136,903 Future medical expenses $132,735 Fox v Wood $24,496 Total $1,486,783

1. These reasons were originally published to the parties on 17 May 2018 and orders were then made in accordance with these reasons, incorporating figures for workers compensation payments which had been tendered by Building Partners Pty Ltd and which the Court was subsequently advised were in error. The figures have been corrected in the reasons now republished to give effect to the corrections, pursuant to r 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW). The orders of 17 May 2018 have been vacated and replaced with the following orders.
2. The orders of the Court in proceedings no 2015/111482 are: 1. The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu. 2. Judgment for the plaintiff, Raymond Wharekawa, against the defendant, AEA Constructions Pty Ltd for $1,486,783. 3. The defendant, AEA Constructions Pty Ltd, is to pay the costs of the plaintiff. 4. Any application by the plaintiff, Raymond Wharekawa, with respect to the scale at which costs are to be paid under the costs order in his favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions. 5. The defendant is to file any affidavit and/or submissions in response within a further 14 days. 6. Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought.
3. The orders of the Court in proceedings no 2016/129877 are: 1. The orders pronounced 17 May 2018 are vacated and the following orders are made in lieu. 2. Judgment for the plaintiff, Building Partners Pty Ltd, against the defendant, AEA Constructions Pty Ltd for $433,084.66, being made up of recovery pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) in the sum of $365,085.66, plus interest in the sum of $67,999, on payments of workers compensation. 3. Noted that payment by the defendant, AEA Constructions Pty Ltd, of the judgment in order 2 above will operate as a credit in the sum of $365,085.66 against the judgment in favour of the plaintiff, Raymond Wharekawa under order 2 made this day in proceedings no 2015/111482. 4. The defendant, AEA Constructions Pty Ltd is to pay the costs of the plaintiff Building Partners Pty Ltd, of the proceedings. 5. Any application by Building Partners Pty Ltd with respect to the scale at which costs are to be paid under the costs orders in their favour is to be made by notice of motion to be filed within seven days with a supporting affidavit and any written submissions. 6. AEA Constructions Pty Ltd is to file any affidavit and/or submissions in response within a further 14 days. 7. Upon AEA Constructions Pty Ltd filing its affidavit and any submissions in response to such applications with respect to costs, it is to notify the associate to Fagan J if it wishes to be heard in oral argument in opposition to the orders sought.

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