Damages
58Learned counsel for the defendant described the quantum of damages as very small. He said that ultimately the plaintiff had lost the "tip" of a finger and the consequences were minimal. I disagree, although I do not think the damages should be assessed to the extent claimed by the plaintiff.
59The defendant submitted that non-economic loss should be assessed at 20% to 22% of a most extreme case (CLA, Section 16). The plaintiff submitted the appropriate range was 33% to 35%.
60It is true that the plaintiff has made a good recovery. However, he has lost more than the tip of his left index finger (Exhibit D) and he remains with an obvious deformity. This will not improve. He finds the deformity embarrassing and, if only to a limited extent, it affects his social activities.
61The plaintiff does not have a great deal of pain now, but still has some numbness and restriction in the use of his hand. He also has a natural fear of using machinery.
62On the basis of the above I think non-economic loss should be assessed at 28% of a most extreme case. This equates to $70,000 on the relevant table.
63Both parties agreed that the plaintiff was entitled to economic loss for the first seven months following the injury. The defendant submitted that this was the extent of economic loss, past and future. The plaintiff submitted that he should receive a further allowance for past economic loss on the basis of a lost earning capacity and that there should also be a similarly based allowance for the future.
64In respect of the first seven months the parties differed as to the weekly rate to be applied. Both parties used, as the source of their submission on the rate, the plaintiff's tax returns and in particular the schedule (Exhibit F). The difficulty with this schedule, and therefore with the parties' submissions, is that the net weekly income has included in its background calculation, losses flowing from the plaintiff's rental property.
65I think a safer approach is to look at the plaintiff's earnings as a tiler and the expenses associated with the business. On this basis the figures in the tax returns for 2006 and 2007 (at page 12 of each return) indicate a net weekly income for these years of $330 and $620 respectively.
66The total business income for 2007 is significantly higher than in previous years. No reason was given. I think it appropriate, for the purposes of the first seven months after the injury, that I should average the above two net weekly figures to form the base rate for the calculation. The average is $475. Taken over seven months (30 weeks) the loss is $14,250.
67I agree with the plaintiff's submission that he should receive a further sum for the balance of the period to date. The plaintiff's work as a tiler involved the use of both hands. Although he is right hand dominant the index finger is important, as he stated, in achieving fine results, in particular concerning levels. One can also readily imagine a need for pressure to be applied to tiles necessitating use of the whole hand. I do accept that the plaintiff's capacity has improved over time but one must take into the account the restrictions placed on his ability to work by Dr Honner in 2008.
68The plaintiff's earnings have fluctuated since the accident, as shown in Exhibit F. The expenses include amounts paid to subcontractors. This is consistent with the plaintiff's evidence that he has had to employ subcontractors because of his inability to do certain tasks.
69I think the plaintiff's claim of $10,000 over more than three years is appropriate and I allow it. Total past economic loss is therefore $24,250.
70The first step in examining future economic loss is, if appropriate, to make the findings required by Section 13 of the CLA.
71In my view, but for the accident, the plaintiff would have continued to work as a tiler, or in associated building activities, until he reached the age of 65. His earnings would have fluctuated, as they had in the past, and would not have been significant, probably following the same trends as prior to the accident.
72I am further satisfied that the nature of the plaintiff's employment, the absence of any other medical issues and his general lifestyle (to the extent described) would have rendered him susceptible to the 'normal' vicissitudes of 15%.
73The next issue is whether the plaintiff still has a diminished capacity and if it is likely to be productive of economic loss. This decision is adversely impacted, from the plaintiff's point of view, by the absence of an up to date report from Dr Honner or any other practitioner giving him support for an inability to do certain tasks.
74It is true that Dr Honner's 2008 observations are put on a long-term basis. They do not, however, take into account the plaintiff's evidence of his improvement or the level of his current complaints. Ultimately his evidence suggested that his fear of using machines, as opposed to any physical incapacity, was a major factor in his reluctance to do a number of tasks. I do, nevertheless, think that the absence of part of an index finger in work in which the use of one's hands is an integral part, does amount to a lack of capacity which will probably, from time to time, have an adverse, if only minor, economic impact. The plaintiff's submission for the future is $50,000. On my findings I think this amount is excessive. I think $25,000 is appropriate.
75Ultimately the plaintiff's claim for future care was restricted to one hour per week for lawnmowing services for the rest of his life. Although the rate of $35 per hour was agreed the defendant submitted that the plaintiff had not proved any case for paid future care. The defendant first submitted that there was no need for any care and secondly that any need was being met, and would continue to be met, gratuitously by the plaintiff's wife and other persons. In the latter regard the defendant relied on the decision of the NSW Court of Appeal in Miller v Galderisi [2009] NSWCA 353.
76Dealing first with the question of need. The plaintiff's counsel conceded that there was no physical reason that he could not push or operate a lawnmower. The problem was one of his mental reluctance to operate the lawnmower. A lawnmower has a blade, it is potentially dangerous and the plaintiff's injury was such that he had a natural fear of operating machines, in particular those containing spinning blades. The medical reports do not mention any such phobia. The plaintiff did, however, give a history of his fear in his oral evidence. There is an overwhelming logic to such a fear and I have no reason to reject the plaintiff's evidence. I must also take into account, however, that the onus is on the plaintiff to mitigate his damages and he has taken no steps, for example by desensitisation sessions with a psychologist, to overcome his fears.
77Turning to the defendant's second point, the lawnmowing is being done by the plaintiff's wife or his friend's children. The plaintiff's sons who live at home are too young to safely carry out lawnmowing. I think it unreasonable to expect that the children of the plaintiff's friends will continue to regularly mow his lawns. I also think it unreasonable that his wife, who appears to be solely carrying out all the domestic activity inside a large house, should be expected to continue to do the lawnmowing.
78I think the following is the appropriate way to deal with future care. The plaintiff should be awarded an amount to cover lawnmowing for one year as well as an allowance for future treatment to enable him to address his anxiety.
79Lawn mowing is not necessary on a weekly basis. Allowing for roughly fortnightly mowing for half the year and once a month for the balance, I allow 18 sessions of lawnmowing at $35 per session. This is $630.
80Past out of pocket expenses were agreed at $2,518.46.
81The plaintiff sought $500 for future medical expenses. The defendant submitted there should be no allowance.
82The plaintiff's justification for the $500 was to pay for occasional medication. It was conceded, however, that the past out of pocket expenses included no medication and there was no evidence of any current use of painkilling or antidepressant medication being taken. On this basis I would not allow any amount for medication.
83I have, however, in the reasons I have given for allowing one year of lawn mowing into the future, said that there should also be an allowance to enable the plaintiff to obtain treatment to overcome his fear of operating machines. There are no costings for such treatment although Dr Clark quotes a figure of $400 a session for psychiatric treatment. I do not know how many sessions would be required for desensitisation treatment. I think a fair approach is to allow the plaintiff's claim for $500 but to attribute it to psychological consultations.
84A summary of the damages I have allowed is as follows:
Non-economic loss $70,000.00
Past economic loss $24,250.00
Future economic loss $25,000.00
Future care $630.00
Past medical expenses $2,518.46
Future medical expenses $500.00
Total $122,898.46