In the plaintiff's case, Associate Professor Champion gave evidence to broadly similar effect. Although Dr Henschke used the word "painful" with reference to the plaintiff's Raynaud's condition, he also described it as "a nuisance", the basic treatment for which was to "stay warm". I understood him to regard it as a small matter in the overall context of the plaintiff's grave situation.
43 All three of the plaintiff's claims are subject to the provisions of Part 5 of the Workers Compensation Act 1987 (NSW) as it stood at the relevant times. For a case subject to these provisions, s151G(2) provided:
The amount of damages to be awarded for non-economic loss [defined by s149 to mean pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement] is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.
44 Section 151G(3) then specified a maximum amount, which "may be awarded only in a most extreme case", and which, by s151M(3), might not be increased by an award of interest. From time to time, this figure was adjusted by amendments, and the parties were agreed that at 14 January 1997 it was $221,650, whereas at 31 March 1998 it had been raised to $226,650. By further provisions of s151G, if the proportion assessed under subs(2) was less than a specified amount, no damages might be awarded for non-economic loss, and in a case falling between that amount and a specified higher amount, such damages might only be awarded upon a reduced basis. The parties were agreed that the cut-off amount which eliminated damages for non-economic loss was equivalent to 17.6 per cent of a most extreme case, and the reduction formula would apply where the proportion assessed was between 17.6 per cent and 23.5 per cent. In addition to these restrictions upon awards for non-economic loss, it was not in dispute that s151H, at relevant times, contained provisions the effect of which was that no damages were to be awarded for economic loss unless the damages for non-economic loss in respect of the injury in question exceeded the equivalent of 23.5 per cent of a most extreme case.
45 In Woolage v The State of New South Wales [2001] NSWCA 256, a unanimous Court of Appeal (Handley, Beazley and Stein JJA) held that, where a plaintiff had twice suffered injuries as a result of the defendant's negligence, it was necessary to determine his entitlement to damages for non-economic loss separately, in respect of each cause of action, in accordance with s151G. As the two injuries, though occurring in almost identical circumstances, necessarily created two causes of action, it was an error to assess one lump sum for general damages, instead of applying s151G, first to one, and then to the other. In that case, the result of going about the task of assessment correctly was to assess the first accident at too low a proportion for the claim to be sustainable but, as all the plaintiff's losses could be attributed to the second accident, and being so attributed justified the assessment of a sufficient proportion of the maximum amount, he recovered in respect of the defendant's liability for this accident.
46 In the present case, it was not submitted for the plaintiff that the reasoning in Woolage v The State of New South Wales, which appears directly in point, can be avoided by reference to Leppington Pastoral Co Pty Limited v Juweinat [2002] NSWCA 228, although counsel for the defendant did refer to the argument in State Rail Authority of New South Wales v Cowan [2003] NSWCA 147 where that case is mentioned. I therefore consider this matter upon the principle of Woolage v The State of New South Wales. If it is so considered, a separate application of s151G to the claim in respect of the plaintiff's Raynaud's phenomenon seems to me inevitably to lead to the conclusion that this claim does not get over the threshold of allowability. It cannot be regarded as equivalent to 17.6 per cent of a most extreme case.
47 The more difficult question relates to the two injuries in rises at the Metz mine suffered on 14 January 1997 and 31 March 1998. For the plaintiff, it was contended that the 1997 injury should be assessed at 30 per cent of a most extreme case, and the 1998 injury at 45 per cent. For the defendant, the argument was that the plaintiff's ongoing disabilities should be attributed to the 1998 accident, the 1997 accident having produced but transitory and relatively minor consequences. The defendant, on this basis, submitted the 1998 injury should be assessed at 50 per cent of a most extreme case.
48 I am not able to accept the defendant's submission. It is true that the plaintiff resumed the very demanding work of a rise miner following his 1997 accident. But that does not, in the special circumstances of this case, require the conclusion that is suggested. It is to be remembered that the plaintiff also resumed the same work after the 1998 accident, and continued to do it for a significant period until signs of actual physical collapse drove him to accept that he was endangering himself and others. Even when the extent of his injuries had been established, he did not simply stop working; although in very considerable pain, he performed such light duties as were made available to him. He was described by more than one medical witness as a stoical or uncomplaining man. In my assessment of him, he was a patient man who expected guidance from his doctors and was willing to act on it; having been told that X-rays had revealed no fracture, he worked on through his pain, believing there could not be anything seriously wrong. He is an intelligent person, but very conscious of the limitations of his education, and the superior knowledge his doctors were able to apply to the assessment of his situation. Both prior to the 1998 accident and after it, I think the plaintiff worked when most men would have ceased work.
49 In the view I have taken of the facts, and having regard to the law as it was declared to be in Woolage v The State of New South Wales, I cannot simply attribute the plaintiff's suffering and disabilities to one injury. I think each injury was a very serious injury in itself and in its direct consequences. Furthermore, the first injury would have produced also the potential to be aggravated by the second, and the second would have had effects which it produced because it operated against the background of the effects of the first. Each injury was, in my opinion, an effective cause of the surgery which was reasonably necessary to deal with the effects of both of them, and thus of its consequences. Each contributed to the plaintiff's present condition of unrelieved, or at best inadequately relieved, headaches and pain.
50 I have come to the conclusion that the plaintiff's submission should be accepted insofar as the 1997 injury should be assessed at 30 per cent of a most extreme case and the 1998 injury at 45 per cent of a most extreme case. The resulting figures for non-economic loss are $66,495 and $101, 992. I do not accept the defendant's suggestion that the accumulation of these percentages at 75 per cent shows them to be excessive, and in reaching the conclusions I have stated I have been careful to avoid any element of double compensation.
51 I turn to the question of the damages to be awarded for the plaintiff's loss of earning capacity, in the past and for the future. As regards the past, the defendant's willingness to keep the plaintiff on in lighter work, and the plaintiff's willingness to do all that he could, despite his pain and restrictions, had the result that there was little actual loss of earnings until the closure of the mine in January 2002. Indeed, it is conceded by the defendant as a measure of the plaintiff's earning capacity, uninjured, that he was able, in the year to 30 June 2000, to earn at the rate of $1,000 per week net. Nevertheless, Mr Wright did take some time off as a result of his injuries, for which a further claim was made in a written submission presented by leave after I had reserved my decision. In the circumstances, I shall deal with this item, if counsel are unable to agree, when short minutes are brought in. For the period 14 January 2002 to 5 May 2003, when the plaintiff was out of work following the closure of the mine, he claimed at the rate of $1143 per week (based on the wages paid to rise miners at Gympie Eldorado Gold Mine in Queensland) or alternatively at the rate of $1271 per week (based on wages paid in mines at Cobar). The amounts calculated, including an allowance for interest, were $78,009 and $86,745 respectively. For the same period, the defendant suggested a figure of $52,000, equivalent to a rounded allowance of one year at $1,000 per week.
52 There can, of course, be no certainty what the plaintiff would have done, if uninjured, when the mine closed. But there is evidence that mining work was obtained by others at the places mentioned or in Tasmania. Mr Wright was both skilled and a very willing worker. The plaintiff's calculations assume he would have worked for 1.25 of a year during the period, thus building in some deduction. With his special qualities, the plaintiff might actually have done better than others. In my opinion, it would be reasonable to allow a rough average of the two calculations, and I allow $82,000.
53 The future is more problematic. Both sides suggest the plaintiff would have earned at a higher rate for 15 years, up to age 55, than thereafter. This is because of the arduous nature of work as a rise miner. The plaintiff puts forward the same rates as a guide, the defendant the figure of $1,000 per week. But the defendant argues for successive reductions of 35 per cent (treating the loss as no more than the loss of a chance) and a further 20 per cent for the significant vicissitudes affecting a rise miner. For the plaintiff, it is contended the deduction should be a conventional 15 per cent. In evaluating these submissions, I bear in mind the plaintiff's record of working through difficulties and his significant level of skill. It would have been highly likely he would have been a preferred candidate for work. I do not accept the defendant's suggestion, which I do not think the medical evidence really supported, that the plaintiff had a significantly vulnerable back before the accidents in question in this case. At all events, he is a man of unusual tenacity, and while he might well have been prepared to accept lower wages, after a period away, in order to return to Armidale, it is also quite possible he would have been able, within a comparatively short time, to return to very well paid work in a re-established mine at Hillgrove. Balancing the possibilities as best I may, I think the plaintiff would be fairly compensated, in respect of the next 15 years, by a figure calculated on the basis of a loss of $1,000 per week less a contingency allowance of 15 per cent. The special factors which might increase the 15 per cent contingency allowance are to some extent balanced by favourable factors and to some extent by the reduction of the weekly figure to $1,000. In choosing that figure, I have also had some small regard to the possibility the plaintiff still has some residual earning capacity, but I have not given that much weight. The reason is that, although I was at one stage impressed by the possibility the plaintiff's intelligence would give him an opportunity to retrain, maturer reflection has convinced me he would face enormous hurdles. The medical evidence which I accept, including that of the defendant's Dr McEwin, offers very little hope of renewed employment
54 Beyond age 55, the plaintiff seeks an award to cover the five years to age 60. The main differences between the parties for this period are (1) that the defendant suggests a residual capacity of $300 per week, and (2) that the defendant would seek a deduction for contingencies of 20 per cent, not the more usual 15 per cent. The basis of the lower claim for later years being that the plaintiff would have done less arduous and dangerous work, I do not think the 20 per cent deduction would be appropriate; nor, for the reasons I have explained, do I think any substantial allowance should be made for a residual earning capacity. I allow the sum of $58,555 which represents a loss of $620 per week for five years commencing in 15 years' time, with a contingency deduction of 15 per cent.
55 Appropriate sums will need to be calculated and added for the loss of superannuation for the past and the future. I leave it to counsel to include these when bringing in short minutes.
56 The defendant acknowledges a sum of $72,000 for out-of-pocket expenses accepted by the workers compensation insurer.
57 A claim is made upon the principle of Griffiths v Kerkemeyer (1977) 139 CLR 161, as modified by the terms of s151K of the Workers Compensation Act, in the form in which it stood at the relevant time, in respect of the services provided to the plaintiff by his sister prior to the hearing. There was some vagueness about the evidence both of the plaintiff and his sister as to the hours of domestic work she did in his apartment. The defendant is prepared to concede 10 hours per week for 10 weeks from 5 August 1999 to 14 October 1999 (yielding a figure of $1,740) and thereafter one hour per week to 1 March 2003 (176 weeks - yielding a figure of $3,062). In my opinion, the first part of this concession represents the appropriate allowance, but I think in some weeks in the later period the plaintiff's sister performed work for longer than one hour. At the same time, the plaintiff's estimate probably includes "chatting" time for the brother and sister. Doing the best I can to estimate fairly as between the parties, I think a calculation based on an average of 1.5 hours per week from 15 October 1999 (yielding a figure of $4,593) would be fair and reasonable. I therefore allow a total of $1,740 + $4,593 = $6,333.
58 I accept the defendant's submission that, for the future, the plaintiff's sister is unlikely to provide regular assistance, and allowance should be made simply for paid assistance on the basis of one hour per week, yielding a calculated figure for 38 years of $18,040. The defendant accepts that, in addition, provision should be made for home modifications and aids in the sum of $10,050, which I regard as appropriate.
59 Because the quite intensive treatment the plaintiff has received has failed (as Dr Henschke very plainly stated) to find a solution to the plaintiff's grave condition, the future expenses of anticipated treatment are unusually high in this case. The defendant accepted a calculation, based on the medical evidence and a projection of the current expenditure on pain relieving drugs, of $118,513, from which the plaintiff accepted a deduction of 25 per cent should be made, yielding a sum of $88,885. The only qualification for which the defendant contended was that it argued the deduction should be 50 per cent. But, while the future may offer cheaper forms of treatment or some fortunate relief of pain, the evidence offers no firm basis for any conclusion other than that the plaintiff will continue to need regular drug therapy. In my opinion, the deduction of 25 per cent is appropriate.
60 Of course, the cost of future treatment will not be limited to the cost of drugs. The parties submitted competing estimates of future medical expenses, both exceeding $20,000. I think a fair and reasonable estimate is $25,000.
61 It is accepted I should also allow a sum of $10,500 upon the principle of Fox v Wood (1981) 148 CLR 438.
62 The only formal order I make at this stage is that the plaintiff bring in, on a date to be fixed, short minutes of orders appropriate to reflect these reasons.
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