Farrell v Woolworths Ltd Acn 000 014 675 [2001] ACTSC 75 (3 August 2001)

Last Updated: 11 June 2002

Paul Bernard Farrell v Woolworths Limited ACN 000 014 675

[2001] ACTSC 75 (3 August 2001)

CATCHWORDS

DAMAGES - Personal injury - Failure to provide safe system of work - Disc injury - Aggravation of pre-existing degenerative condition.

Commonwealth of Australia v Martone, unreported, Federal Court of Australia, Gallop, Jenkinson and Wilcox JJ, 27 March 1991

Griffiths v Kerkemeyer (1977) 193 CLR 161

Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49

Wilson v Piesly (1975) 7 ALR 571

No. SC 808 of 1996

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 3 August 2001

IN THE SUPREME COURT OF THE )

) No. SC 808 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PAUL BERNARD FARRELL

Plaintiff

AND: WOOLWORTHS LIMITED

ACN 000 014 675

Defendant

ORDER

Coram: Master T. Connolly

Date: 3 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $211,001.17.

2. Parties have leave to relist for any submissions in relation to the appropriate interest to be awarded in respect of past out of pocket expenses.

3. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from an industrial accident which the plaintiff says occurred on or about Australia Day 1991 when he was working as a casual shop assistant at the Woolworths supermarket at Mawson in the Australian Capital Territory. The plaintiff's case is that he was working in the liquor store, and his duties required him to unload stock from a series of pallets that were placed near the entrance to the liquor store when he was not attending to customers. His evidence is that he was required to walk through a narrow gap between pallets carrying two cartons of beer, and that while attempting to negotiate this path he fell, jarring his back, and thus aggravating a previously asymptomatic degenerative condition. He pleads that this was an unsafe system of work.

2. He further pleaded that Woolworths were negligent in allowing him to continue in his routine duties, which involved regular lifting of heavy cartons of stock, when they were aware of his back injury. This, it was pleaded, lead to a further incident in January 1992. It was common ground that no accident report form was filled in until January 1992, and although the plaintiff says that he told his supervisor of the accident, one of the relevant supervisors gave evidence that she was never told, and the other has a recollection of being told about back pains, but could not say when this occurred. It is common ground that the plaintiff's back condition became more severe in early 1992, that is about a year after the accident, and that he took some time off on compensation benefits from this time. In the absence of any report of injury form, and given the vagueness of the evidence about oral complaints, I am not satisfied that the claim that the employer was negligent in allowing the plaintiff to continue with ordinary duties, which on the evidence he continued to regularly perform up until early 1992. In the absence of clear evidence that the employer was on notice of some prior injury, allowing an employee to continue with normal duties does not, it seems to me, amount to negligence (Commonwealth of Australia v Martone, unreported, Federal Court of Australia , Gallop, Jenkinson and Wilcox JJ, 27 March 1991).

3. The plaintiff was born in April 1972, and educated in Canberra. He commenced part time employment at Woolworths while still a Year 10 High School student in 1987. He successfully completed his High School education and entered the Canberra campus of the Australian Catholic University to undertake a Diploma of Teaching in 1990. When he started his part time work at Woolworths he was a trolley boy, and he progressed to checkout operator. By about 1989, when he completed High School and entered university, he moved to the liquor shop.

4. The plaintiff gave evidence as to the system of work in place at the liquor store in 1991. His evidence was supported by evidence from Bernard Smith, who is now a legal officer with the Shop, Distributive and Allied Employees Association, but who at the time was student and part time employee in the liquor store at Woolworths, Mawson. Their evidence was not contradicted by that of Ms Venn and Ms Harkham, who were both supervisors at the time.

5. I am satisfied that the part time employees in the liquor store, who after normal business hours may be the only employees on duty in the liquor store, were expected, in addition to serving customers, to ensure that the shelves were stacked with stock, and that there was sufficient cold beer available. The liquor store was a separate store, but situated adjacent to the main store near the line of customer checkouts. Pallets of stock would be brought out by mechanical means from the main storeroom and placed adjacent to the liquor store. The liquor store had a check out access, and also a sliding opening which opened into the main store. The pallets would comprise pallets of cartons of beer, and also pallets of mixed wine and spirits stock, and they were placed in a line close to the wall adjacent to the sliding door. A chart was drawn by the plaintiff of this arrangement, and tendered as exhibit A. At times three pallets could be stacked close to the wall, with a narrow gap between the pallets. I am satisfied that when there were three pallets, the employee would have to walk between the pallets to bring stock from the pallets into the liquor store. I am satisfied that there was a gap of only about 30 centimetres between the pallets.

6. The plaintiff says that he worked on the evening of 26 January 1991, which was a busy night, being Australia Day. He says that he was told on arrival at about 5pm that evening to make sure that all the shelves were full and to unload beer. There were two pallets of mixed wines and spirits and one pallet of beer stacked outside the sliding door, with the beer pallet the furthest away. The plaintiff says that he unloaded the beer, carrying two boxes at a time. I am satisfied from all of the evidence that it was the normal, and expected, manner of work for casual employees to carry two boxes of stubbies of beer, which the plaintiff estimated weighed about 13.5 kilos, at a time. The plaintiff says that he started at the front of the beer pallet and worked his way through, carrying two boxes of beer each time through the gap between the two pallets of mixed wine and spirits. He says that he had to lift the boxes of beer to chest height and turn sideways and "shuffle through" the gap between the other pallets. He says that on the occasion that he hurt himself:

"at the very end my right foot clipped the pallet, underneath, the hole in the pallet, where the pallet jack goes. And as I was moving forward I tripped, stumbled, and so as not to break the beer and get into trouble, as I fell I lifted the beer up and let it go at the last moment, and landed on the ground."

7. He said that just before he hit the ground, "I felt a rip or a tear right up my back". The incident occurred just before the end of his shift, and he says that he finished unloading the beer, box by box. He said that he had been given the directions to unload the beer by Mrs Venn, the liquor store manager. He claims that at the end of his shift he reported the incident to Mrs Harkham, who was the personnel officer, and he did not have to return to work for some days because he was rostered off.

8. I am satisfied from Mrs Harkham's evidence, however, that he must have been mistaken about this, as Mrs Harkham did not work beyond normal office hours. Moreover, the records of Woolworths, and Mrs Venn's evidence, satisfies me that Mrs Venn was on leave on 26 January 1991.

9. I was generally impressed with the plaintiff as a witness of truth, but I find that he has been mistaken about some of his recollections of this incident. He was firm in his recollection that the incident occurred on Australia Day 1991 near the end of an evening shift, but his employment records, a copy of which was tendered, show that he was on duty that day, which was a Sunday, from 9 am to 1.15 pm, working 4.15 hours. He was rostered on and worked the following day and the balance of the week.

10. Mrs Harkham said in her evidence in chief that she did recall the plaintiff mentioning back pain at work. She said that she advised him to fill in the appropriate forms, and believed that this occurred around January 1992. An employers report of injury form was filled out by the plaintiff on 30 January 1992, which described an incident as follows: "unloading pallet of wine and champagne when finished noticed back pain". It is common ground that following this form being lodged the plaintiff had some time off on workers compensation benefits, and was intensively investigated.

11. Mrs Harkham said in her evidence in chief, however, that she did have a recollection of Mr Farrell making some other complaint of back pain, but she said that she could not recall whether it was before or after January 1992. It is common ground that only one report of injury form was ever filled in, in January 1992, when the plaintiff says that his pre existing back pain, which related back to the January 1991 incident, became aggravated.

12. Although I am satisfied that the plaintiff is mistaken in his recollection that the trip and fall incident occurred on the evening of 26 January 1991, I am satisfied that the incident as described by the plaintiff did occur at about this time, and the plaintiff therefore succeeds in making out his allegation that the incident occurred on or about 26 January 1991 as pleaded. Moreover, I am satisfied that the system in place for the unloading of liquor and beer at the time, which required employees to carry two boxes of beer between a narrow gap between pallets in circumstances where it is reasonable to foresee that a trip would occur, was unsafe. I am satisfied that this system has subsequently been modified, and pallets were stacked with a safe gap between the pallets and the liquor store sliding door so that access could be gained between the stock and the store without having to walk between the pallets. Evidence of the modification of the system was given by the plaintiff and by Mr Smith, and was not contradicted by Mrs Harkham or Mrs Venn, who were managers in the store at the relevant times. I am therefore satisfied that the plaintiff makes out his case in respect of liability in respect of the trip on or about, and on my findings, about, January 26 1991. I am satisfied that the incident occurred at around this time, but not, as now recalled by the plaintiff, on the evening of 26 January.

13. I should note that the defendant did not ever put to the plaintiff that the trip and fall incident never occurred.

14. The plaintiff's recollection is that after the incident he had some time down at the coast before having to work again. He says that he mentioned that his back was stiff to his mother, who is a nurse, and that both of them assumed that he had probably just pulled a muscle, and he was treated with some linement. He did not have any sharp pains over the next few days, but was stiff and sore. He says that his back was sore when he was working, although he acknowledges that he continued to work at Woolworths throughout 1991. He says that he tended to reduce his involvement in sports from this time, and gave evidence, which was supported by his now wife, that he was unable to help her to move furniture in early 1991.

15. Nevertheless, there is a paucity of medical evidence for this period. He visited his longstanding family doctor in February and March 1991 for unrelated complaints, including, in February, "tightness in chest when running". The first complaint of back pain was recorded in his general practitioners notes on April 17 1991, and reads: "low back pain sharp on and off. Not affected by exercise. Pain in back of legs. Sore throat as well..." The plaintiff's evidence is that his doctor assumed that these were flu like symptoms. It is apparent from the notes that he did not complain of the fall at work. There were two further visits to his general practitioner in 1991 where no complaint of back pain was made.

16. The defendant submits that there is insufficient evidence for me to be satisfied that the early 1991 trip incident caused anything other than transient muscle strain. Certainly the general absence of contemporary medical notes is troubling, and can often be fatal to establishing a connection between an accident and subsequent development of back pain. Mr Lunney, for the plaintiff, made the submission that this was a case involving a fit and strong young man, who assumed that he had sustained only a muscle strain, and who therefore carried on without complaint. Taken with the clear reference to back pain with pain in the back of the legs in April 1991, I am satisfied that the plaintiff's evidence of ongoing back trouble in 1991, supported also by the evidence of his family, is credible. It is perhaps unfortunate that the plaintiff did not provide the locum general practitioner in April 1991 a history of a traumatic onset of the back pain, as his presentation together with flu like symptoms seems to have resulted in no investigations being undertaken at that time.

17. Following the report of back pain at work in January 1992 the plaintiff attended his general practitioner. Dr Greenhalgh's report of 3 December 1992 say that the plaintiff:

"..consulted me on 31.1.92 and stated that his back had been sore for the previous week after doing heavy lifting at work. He said that he had had a similar condition also while at work approximately one year ago. However this time it was worse with marked stiffness in the back and also some pain in the right leg extending down to the ankle."

18. Dr Greenhalgh suspected muscular ligament strain, and prescribed anti inflammatories, but sent him for x-ray, which showed congenital narrowing of L5/S1 with spondylolisthesis. He continued to present during the early part of 1992, and was sent for an MRI scan which showed on 4 May 1992 an L5/S1 disc lesion. He was treated with physiotherapy.

19. Since this time the plaintiff has been under regular medical attention in relation to his spine. There is common ground between experts called for the plaintiff and the defendant that the plaintiff has a lower spine that is prone to degeneration. Dr Chandran, to whom the plaintiff was referred for treatment and opinion in September 1992, advised conservative treatment in the early stages before eventual surgery, but has been of the view, at least since his report of September 2000, that surgery is inappropriate because, as well as the disc disruption at L5/S1, there is also disruption at L4/5. This latter condition is, I am satisfied, in no way accident related.

20. The early view of the plaintiff's general practitioner was that the disc disruption found at MRI in May 1992 was caused by the strain of lifting boxes at work in January 1992. In subsequent reports he has varied this view, and accepts that the January 1991 incident, and his history of pain during 1991, leads to the conclusion that the disc was disrupted in the January 1991 incident. This question was in many respects the real issue between the parties at the hearing of this matter, and extensive medical evidence was tendered, and doctors were cross examined at length.

21. Taking all of the evidence into account, I am satisfied that the plaintiff did in January 1991 sustain damage to the disc at L5/S1. I am further satisfied that the plaintiff at this time had a degenerative condition of his lumbar spine, and that this condition has continued over time, and accounts for the subsequent difficulties found at other levels. In many respects my conclusions mirror the view of Dr Greenlegh in his report of February 1995 where he accepted that the January 1991 incident damaged the disc, but said:

"However, it would not be likely to cause disc damage in a normal, healthy, fit twenty year old but if there was a pre existing weakness or degeneration of the lumbar sacral disc then disc damage from this sort of injury would be more likely. The damage would be to the extent of probable strain of the posterior disc capsule, however his symptoms at this time were not consistent with rupture or protrusion of the disc."

22. The defendant's case is that no disc damage was caused by the 1991 incident, as the symptoms associated with disc damage were not present in 1991, but clearly were present and are evidenced by regular medical attendances from January 1992. I am satisfied that the disc lesion as observed in May 1992 was not brought to that state immediately upon the accident of January 1991, as if it was ongoing sciatica, as reported from January 1992, would have been expected to be present. My finding, on all of the evidence, is that, as Dr Greenlegh opined in 1995, the 1991 fall caused strain to the disc which was itself degenerate, and which then brought the already vulnerable disc much closer to prolapse, which probably occurred, on my findings, during the course of normal lifting duties. I am satisfied that the January 1991 incident, for which the defendant is liable, rendered symptomatic a previously asymptomatic degenerative spinal condition, and brought the disc at L5/S1 to the point where it subsequently prolapsed under normal activities.

23. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, the tortfeasor will be held liable for that condition, but the fact that the condition was present and would have come to symptoms at some time must be taken into account. In Wilson v Piesly (1975) 7 ALR 571 Barwick CJ said at 575:

"The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst that appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely king, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

24. The plaintiff continued with his university studies through 1992 and graduated with his Diploma in Education at the end of that year. He underwent considerable treatment during this time seeking to resolve what had developed into constant back complaints. His evidence is that the practice at the Australian Catholic University was to encourage students to complete their Diploma and then to go out into the workforce for a couple of years to teach before returning to University to complete a Bachelor of Education. The plaintiff obtained a position as a full time year six teacher at Sacred Heart School in Launceston in Tasmania. He worked full time at the school through 1993 and 1994, and also did some part time bar work. He returned to Canberra from time to time and continued under the care of his general practitioner. Surgery was being actively contemplated at this time, and a full discogram was undertaken in September 1994. A cortisone injection was tried at L5/S1, with little benefit. He continued to take medication.

25. He returned to Canberra after the school year ended in 1994 with a view to completing his degree and teaching part time. He underwent a course of further injections in Sydney, with little long term benefit. His pain relief medications continued during this time and he says that he was unable to undertake as much part time teaching as he would have liked, only starting relief teaching towards the end of 1995. He also says that he was unable to study effectively, and did not complete his degree that year, passing only four of the eight units required.

26. In 1996 he commenced work full time as a primary teacher at Marist College in Canberra. He was taking considerable medication during this period, and says that he was becoming increasingly frustrated and disheartened by ongoing back problems. He says that he was finding alcohol a form of pain relief. In April 1996 he tried an epidural injection from Dr McGrath, but says this only increased his pain. He was by now on antidepressants as well as a range of pain relief, and he says that all of this was making him feel dopey. He abandoned plans to complete his degree part time, but continued teaching. He tried chiropractic treatment and Bowen therapy for back relief during this time.

27. He changed general practitioners in 1998, and came under the care of Dr Ian Brown. Dr Brown's reports note his concern at the levels of medication the plaintiff was using, and Dr Brown has sought to reduce medication levels. He referred the plaintiff to Dr Speldewinde, a rehabilitation physician, for treatment during 1998. Dr Speldewinde suggested a change in pain relief from codeine based drugs to oral morphine by way of MS Contin, and this was commenced. The dosages were increased, but the plaintiff developed some side effects by way of constipation. During 1998 the plaintiff and his wife commenced a family, and I am satisfied from the evidence of the plaintiff and his wife, and from the medical evidence, that these were very difficult times for him.

28. The plaintiff continued to work full time through 1998 and 1999, including some additional duties involving supervising sports activities at the school. I am satisfied that the plaintiff has a real enthusiasm for primary teaching, and has persevered at his profession in the face of considerable discomfort, particularly during these years. He continued to use quite high levels of medication both for pain relief, by way of MS Contin, anti depressants, and medications to address the side effects of the morphine based pain relief by way of gastric problems.

29. In late 1999 the plaintiff entered a full time pain relief program at Royal North Shore Hospital in Sydney. The goal of this program, strongly supported by his general practitioner, was to allow him over time to get off his medication regime completely, and to cope with his pain and discomfort more by way of exercise. The plaintiff and his wife gave evidence of the difficulties he experienced in undertaking this regime, but he successfully completed it, and has been able to remain off medications.

30. In 2000 he commenced full time teaching, but moved to part time by mid year. He and his wife had a second child in August 2000. He has continued on part time duties to the date of trial, working three days a week, and undertaking exercise and physiotherapy at the Canberra Injury Management Centre on his off days. He continues to be restricted by his back pain but has successfully remained off medication. Dr Brown gave evidence of the difficulties that this has presented, and it is entirely to the plaintiff's credit, as a young man with a young family, that he has been able to remove himself from an intensive medication regime in this way.

31. The principles to be applied in determining compensation in personal injuries cases have been summarised by McHugh J In Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 where His Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, `in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

32. In this case there is no doubt in my mind that the plaintiff has been significantly disabled and distressed by his back condition, which developed at a young age. As I have found that the plaintiff had a latent back condition that was aggravated by the compensible accident, I must assess his general damages, in accordance with the principles in Wilson v Piesley (1975) 7 ALR 571, as those damages attributable to the aggravation caused by the accident, in a manner different to the way I would assess damages if the accident alone was the source of all the plaintiff's difficulties. Moreover, I must also, in accordance with the principles in Malec v J.C. Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 make a similar assessment in relation to the future.

33. I have found that the accident did cause damage to and significantly weaken the disc at L5/S1, and so was the cause of the subsequent prolapse, which occurred in the course of normal activities. I have found that the plaintiff's lumbar spine does show signs of congenital weakness, and that there have developed subsequent problems at the next level, such that operative treatment to the damaged disc is not considered appropriate by Dr Chandran.

34. The plaintiff has been able to continue to work. He completed his basic educational requirement for teaching, and has been a full time teacher up until last year. He was unable to complete his full qualifications, and has since last year, which coincided with the difficult process of getting off medications, worked only part time, by way of three days a week. He was a keen sportsman before the accident, but has had to avoid vigorous activities since. He says that he must be guarded with his children to protect his back. While this is consistent with the medical evidence which all acknowledges genuine disc damage and ongoing chronic pain, video material was shown and tendered which showed the plaintiff picking up both his children and lifting them from the ground simultaneously when attending a child care centre

35. The plaintiff will, on all of the evidence, continue to suffer from ongoing back pain. I am satisfied, however, that a very large proportion of this for the future is attributable to the underlying degenerative condition. I am satisfied, on all of the evidence, that the incident at work in January 1991 has brought on his chronic back condition many years earlier than it would otherwise have occurred, and I attribute the bulk of his problems to date to the accident, but over time I am satisfied that he would have come to this condition even had the 1991 industrial accident not occurred. I must therefore assess him as a young man bought to significant and chronic back problems attributable to a disc rupture, but also as a person with an underlying condition which would have eventually come to this in any event.

36. In respect of general damages, I assess the plaintiff in the sum of $65,000, of which I attribute $50,000 to the past, generating interest of $10,526, leading to a total award of general damages of $75,526.

37. Out of pocket expenses in this matter were considerable, as would be expected in a matter where there has been some 10 years of ongoing treatment and medication. The out of pocket expenses were set out in the amended statement of particulars in the full amount of $47,696.17. I am satisfied that these matters are properly allowable. As the treatment and travel expenses relate to the treatment for the disc injury which I have found was related to the accident, I am satisfied that I should allow out of pocket expenses for the past in full. There was a degree of confusion at the hearing of this matter as to exactly which parts of the out of pocket expenses had been paid by the defendant and which had not, and on the instructions both counsel had on the day, no clear answer could be given which would balance the sums. Mr Williams proposed, sensibly it seems to me, that I simply give judgment on the sum I consider to be appropriate, which is the full amount. I further note that the defendant is to be given credit for such sums as have been paid. Much of the unpaid amount seems to have related to travel expenses. Interest was claimed on this, but as Mr Williams pointed out, this is in effect a notional cost, being based on depreciation rates and such, and it did not follow that interest flowed. Mr Lunney abandoned the claim in respect of interest on this sum, and it may well be that this disposes of the interest on out of pocket expenses altogether, although counsel were unable, on the basis of their instructions, to clarify this. I give leave to the parties, after judgement, to approach in respect of any issues relating to interest on past out of pocket expenses.

38. Future out of pocket expenses were particularised on the basis of two years of additional psychological counselling, plus twenty further sessions of pain management counselling, as well as ongoing membership of a gym to enable him to undertake regular exercise and swimming. I am satisfied that the plaintiff will continue to experience chronic back pain, and that he is determined to avoid returning to an intensive medication regime. In able to succeed in avoiding medications he will need a degree of ongoing support in the immediate future, as well as an ongoing exercise regime. He will also need to regularly visit his general practitioner.

39. His future care, however, cannot be attributed solely, or even on my findings predominantly to the 1991 incident. I have found that he has a significant pre existing condition, which would bring him to his present state regardless of the accident. In respect of future out of pocket expenses I award the sum of $15,000, to cover the bulk of the counselling and pain management over the next two years, and to make some contribution towards ongoing exercise programs and medical visits .

40. The plaintiff's past economic loss was particularised as a claim for $101,526.27. Revised figures were put forward by counsel for the plaintiff in his address based more clearly on the taxation assessments for the years to 1999/2000 and to the date of trial. The plaintiff did take some time off from Woolworths in 1992, and was paid compensation in the sum of $4,080, which I award for past loss. No interest is appropriate as this was compensated, and will be recoverable in due course. He worked full time in 1993 and 1994, so no award is sought for these years. In 1995 he was not able to work as much as he had expected as a relief teacher, and he claims a loss of $8,000 for the financial year 1994/5 and $6,000 for the financial year 1995/6. This seems appropriate. He worked full time at Marist College in 1998 and 1999, and so no award is appropriate. From 2000 he dropped his hours to two days a week, and it seems to me that the amount claimed for the period to trial in Mr Lunney's submission, being $19,760, is appropriate. This amounts to a total award for past economic loss of $33,760 for which interest is awardable in the sum of $10,980. To this must be added the amount of $4,080 which does not attract interest, for the total award of $48,820.

41. The plaintiff makes a claim for an ongoing loss of $380 per week for the balance of his working life. I am not satisfied that he is indeed permanently precluded by reason of his back condition from returning to full time teaching, as indeed he was able to do for the years 1993, 1994, 1998 and 1999. His income tax assessments show substantial periods of employment even when he was working part time. I have accepted his two day limitation as being compensible for past loss mainly on the evidence of the significant rehabilitative effort he has made by way of undertaking the pain relief program and getting himself medication free. This has required considerable effort and intensive exercises, and I accept that this is appropriate for a modest period into the future. Beyond then I find that his capacity for full time work should return to the levels that it was in the years 1998 and 1999, but in any event I find that the extent of any incapacity for the future must be significantly reduced by reason of the underlying degenerative condition and its contribution to his chronic back pain, which I have found would in time overtake the impact of the 1991 incident. I award the sum of $20,000 by way of a buffer for future economic loss attributable to the 1991 accident.

42. The plaintiff also claims in respect of superannuation loss. A report from an accountant was tendered which supported the particularised claim of some $200,000 for loss of superannuation, but this was of course premised on an accident related limitation for the future causing the plaintiff to only be able to work for two days per week. As I have found that this does not represent the accident caused disability, the report is of no assistance to me. I have made an award for past and future wage loss, and it seems to me that it is appropriate to link the superannuation to the wage loss. For the past years where a loss has been awarded, the superannuation rate was between 6% and 7%. The past wage loss during his teaching career I found to be $33,700. The bulk of this occurred during the period when the superannuation rate was at 7%, so I calculate 7% of this sum, being $2,359. This amount would have attracted interest, but would have been taxed at 15%, so it seems to me that for this limited period and limited sum, to award $2,359 would balance out.

43. For the future, I have awarded a buffer for future wage loss, and it seems to me that it would be appropriate to apply the appropriate superannuation rate to this buffer, at the present rate of 8%. This amounts to $1,600. I have not adjusted this for tax, but nor have I taken into account that this would be spread over some years for the buffer award, during which the superannuation rate will increase to 9%. The amount of $1,600 seems appropriate.

44. A Griffiths v Kerkemeyer (1977) 193 CLR 161 claim was particularised on the basis of a past claim amounting to $79,000 inclusive of interest, and a future claim, based on three hours a week at $31, of $238,221.36. At the outset I must observe that the hourly rate seems about double what is accepted as normal for cleaning/gardening rates.

45. I am not satisfied on all of the evidence that the plaintiff's back condition is such that what assistance he does receive from family members goes beyond the normal give and take of domestic relationships. His mother did attend and stay in Sydney for a three day period when he was undergoing injections some years ago, but a relative staying by a patient is not a component of Griffiths v Kerkemeyer damages, which is confined to accident created needs. He conceded in cross examination that the household duties are generally fairly shared, and he is able to do most things, albeit with restrictions. He and his wife both gave evidence that it is their long term intention to move to a country block in the Canberra region to adopt the rural lifestyle for their family, and Mr Williams submitted, fairly it seems to me, that this concession does not sit well with a claim for lifetime needs for basic domestic care. I am not satisfied that any award should be made under this head.

46. This amounts to a total award of $211,001.17 which I award, with costs.

I certify that the preceding forty six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 3 August 2001

Counsel for the Plaintiff: Mr Lunney

Solicitor for the Plaintiff: Macphillamy Donald

Counsel for the Defendant: Mr Williams

Solicitor for the Defendant: Blake Dawson Waldron

Date of hearing: 25, 26, 27 & 28 June 2001

Date of judgment: 3 August 2001