Hodge v CSR Limited [2010] NSWSC 27 (2 February 2010)

Last Updated: 3 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Hodge v CSR Limited [2010] NSWSC 27


JURISDICTION:
Common Law

FILE NUMBER(S):
20541/06

HEARING DATE(S):
24-26 November, 1-4 December 2008, 15 December 2009, 2 February 2010

JUDGMENT DATE:
2 February 2010

PARTIES:
Peter Hodge (Plaintiff)
CSR Limited formerly t/as Readymix Holdings Pty Limited (1st Defendant)
Adecco Industrial Pty Limited (2nd Defendant)

JUDGMENT OF:
Hislop J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
A.J. Bartley SC/L. Morgan (Plaintiff)
N.E. Chen (1st Defendant)
D. O'Dowd (2nd Defendant)

SOLICITORS:
LHD Lawyers (Plaintiff)
Riley Gray Spencer Lawyers (1st Defendant)
Gillies Delaney Lawyers (2nd Defendant)


CATCHWORDS:
Common law
personal injury
worksite
negligence
damage.

LEGISLATION CITED:
Law Reform (Miscellaneous Provisions) Act, 1946
Workers Compensation Act, 1987
Civil Liability Act, 2002
Workplace Injury Management and Workers Compensation Act, 1998

CATEGORY:
Principal judgment

CASES CITED:
TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1
Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Joslyn v Berriman [2003] HCA 34; (2003) 214 CLR 552
Waverley Council v Ferreira [2005] NSWCA 418
Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203
Medlin v SGIC [1995[ HCA 5; (1995) 182 CLR 1

TEXTS CITED:


DECISION:
(1) Verdict and judgment for the plaintiff against the first defendant in the sum of $533,220.59. (2) Verdict for the plaintiff against the second defendant in the sum of $271,755.32. (3) Judgment for the plaintiff against the second defendant in the sum of $260,901.41. (4) The defendants to pay the plaintiff's costs. (5) Verdict and judgment for the second defendant on its cross claim against the first defendant in the sum of $260,901.41 plus any costs paid by the second defendant to the plaintiff pursuant to the order made in subparagraph 134(4). The first defendant to pay the second defendant's costs of the second defendant's cross claim. (6) Verdict and judgment for the second defendant on the first defendant's cross claim against it. The first defendant to pay the second defendant's costs of that cross claim.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

HISLOP J

2 February 2009

20541/06 PETER HODGE v CSR LIMITED formerly t/as READYMIX HOLDINGS PTY LIMITED & ANOR

JUDGMENT

Introduction

1 The plaintiff was employed by the second defendant, a labour hire company. His services were hired, inter alia to the first defendant. He alleges he sustained injury to the cervical spine as a result of using a jackhammer weighing approximately 25 kilograms to remove concrete which had solidified in the agitator barrel of one of the first defendant’s concrete agitator trucks. The injury allegedly occurred on the premises of the first defendant at Wyong NSW. The plaintiff seeks damages from the defendants for his injury.

2 The defendants have denied liability to the plaintiff and have alleged that any injury sustained by him was caused or contributed to by his own negligence. The defendants dispute the quantum of damages recoverable in the event the plaintiff obtains a verdict against them or either of them.

3 The defendants have cross claimed against each other seeking indemnity or contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act, 1946. The second defendant also claims indemnity from the first defendant pursuant to s 151Z(1)(d) of the Workers Compensation Act, 1987.

Factual Background

4 The following facts, which I accept, were either common ground, documented, or not the subject of significant dispute between the parties.

(a) The plaintiff is a right handed man born on 30 May 1968 in the Central West of New South Wales. He left school at age 15. After leaving school he continued to live in the country apart from a period of about three years when he resided in Sydney. Prior to 1999 he worked in a variety of occupations including packer, storeman, shop assistant, farm assistant and as a slicer/packer at an abattoir.

(b) The plaintiff is married and has three children, two boys and a girl born respectively in 1989, 1992 and 1999. In 1999 the plaintiff and his family moved to the New South Wales Central Coast where they purchased a home. The plaintiff obtained employment initially with a labour hire company (Manpower) and then from about 2000 with the second defendant. His services were hired by each employer principally to Pioneer Concrete and the first defendant, with each of whom he worked as the driver of concrete agitator trucks.

(c) In April 2000 the plaintiff commenced to operate a minibus business conveying patrons to and from a bowling club in the evening and at weekends. This was in addition to working as a driver of concrete agitator trucks. The business expanded and a second (smaller) bus was purchased. The plaintiff’s wife shared some of the driving. In February 2002 the business was sold for $57,000, which represented a profit of $25,000. One of the reasons for selling the buses was said to be it enabled the plaintiff to only work five days and a Saturday morning if he had to and to spend more time with the children and have a better lifestyle.

(d) On 16 July 2002 the plaintiff consulted his general practitioner, Dr Gobbo, in respect of the alleged injury.

(e) On 12 September 2002 Dr Spittaler performed surgery upon the plaintiff’s cervical spine.

(f) The plaintiff returned to work with the second defendant for a short time.

(g) The plaintiff sold his house on the Central Coast. He purchased a 10 acre property at Cowra. The transfer to him and his wife of the Cowra property was dated 5 November 2002. He resided at the property which contained greyhound training facilities. The plaintiff built additional greyhound facilities upon the property.

(h) In January 2003 the plaintiff commenced employment with Mr Bryant at Cowra as the driver of a concrete agitator truck. After three months he commenced to drive and operate a concrete pump truck in lieu of driving an agitator truck. He ceased employment with Mr Bryant on 30 December 2003.

(i) In about January 2004 the plaintiff purchased a 100 acre property at Gooloogong NSW. The plaintiff’s home and greyhound and other facilities were set upon a 10 acre area, the remaining 90 acres was share farmed with the share farmer providing the labour and the plaintiff the land. The facilities permitted the keeping and training of greyhounds and the boarding of family pets. The plaintiff built extensions to the facilities for the housing of greyhounds. He carries on a business of breeding, training and caring for greyhounds and boarding family pets for a fee under the name Country Comfort Kennels.

(j) In 2006 the plaintiff’s wife became the licensee of the Gooloogong Hotel. The plaintiff lived with his family at the hotel and worked there doing the duties of a “jack-of-all-trades” including serving beer, moving kegs, picking up glasses, sweeping etc.

(k) In September 2008 the plaintiff’s wife sold the hotel licence.

(l) The plaintiff has not engaged in paid employment since that time though he continues to work in the Country Comfort Kennels business.

The liability of the first defendant

5 The plaintiff’s case, as asserted in the amended statement of claim, was:

“The first defendant directed the plaintiff to ‘de-dag’ [i.e. remove solidified concrete from] a concrete barrel attached to the vehicle. The first defendant required the plaintiff to stand inside the barrel and operate a full sized jackhammer of substantial weight above his head for an extended period of time on concrete which had attached itself to the inner aspect of the concrete barrel.”

6 In his evidentiary statement dated 14 November 2007 (Exhibit A) [25], the plaintiff stated:

“I was de-dagging the barrel of the First Defendant truck number 234 in their yard on 15 June 2002, as instructed by Mr Mark Schofield of the first defendant, for almost six hours when I developed pain in my neck and left shoulder. I had been using a full size jackhammer. The pain gradually increased and a few days later I started to have problems in my left hand being numbness and tingling in the middle and little fingers.”

7 The plaintiff gave evidence that:

(a) He had done de-dagging at Pioneer Concrete using a Kanga jackhammer which weighed 10 to 15 kilograms (probably 11 kilograms). De-dagging with a jackhammer of that size “wasn’t a problem.”

(b) The first defendant had had a jackhammer of that type which it used for de-dagging. However the jackhammer had been stolen prior to the plaintiff’s injury. Thereafter the first defendant hired a Kanga jackhammer similar to that used at Pioneer Concrete from a local equipment hire company for use when de-dagging was to be done.

(c) On this occasion however a jackhammer weighing in the order of 25 kilograms was hired by the first defendant for the purpose of performing de-dagging. The concrete which had solidified in the barrel was thick and there was difficulty in removing it from the barrel. He had never had to use a jackhammer of that size on that thickness of concrete previously. That jackhammer was hired a few days before the plaintiff’s injury and was used a day or two before on another truck.

(d) The plaintiff said he attacked the concrete in the barrel of the truck from eye level down to waist level because if you did it at your thighs you didn’t know what was going to fall on you and the jackhammer was too heavy to hold above the work. At its highest he had the jackhammer probably at shoulder level. He was able to use the jackhammer at waist level and on the broken pieces that fell down if he used it between his feet.

8 The plaintiff tendered two reports of an engineer, Mr Frost (Exhibit H). Mr Frost concluded that the risk of injury in using a full size jackhammer was reasonably foreseeable and that reasonably practical means to obviate the risk, namely the use of a smaller Kanga jackhammer, was available.

9 Dr Potter was called to give evidence on behalf of the first defendant. In cross-examination he agreed that the mechanism of injury described by the plaintiff could throw undue stress upon the cervical spine and provided a moderately predictable way of being injured.

10 The first defendant accepted that it owed a duty of care to the plaintiff analogous to that of an employer to an employee - see TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 at [41], [42].

11 The first defendant did not dispute that breach of duty would be established if the plaintiff had sustained injury as alleged. Instead it submitted, essentially, it was not liable as:

(a) the evidence did not establish that injury occurred on the date alleged by the plaintiff, and

(b) the jackhammer used was not proved to be of such a weight that its use in the de-dagging process evidenced a lack of reasonable care on the part of the first defendant.

The date of injury

12 The plaintiff gave evidence that:

(a) de-dagging was normally undertaken when the weather was wet and the trucks could not make deliveries. On such occasions maintenance work, washing of the trucks or yard work may also be carried out. De-dagging would also be carried out, if necessary, on other occasions;

(b) he was ordinarily assigned to truck number 234 and that it was a wet day when he did the de-dagging the subject of his claim. He said he was performing de-dagging for five to six hours on that day, although he had breaks a few times to empty the truck and had rest periods as he felt he required them. He gave the following evidence:

“Q. You did it all in one day, is that right, one day?

A. Well one or two days, yeah, it took me a long time to do it, yeah, a full day.”

(c) The first defendant’s batcher (Mr Schofield) and his assistant (Mr Hemmers) were present on site that day. He told them that he was in pain at the end of the day.

13 The plaintiff had alleged in his original statement of claim that he was injured on 15 June 2002. In his worker’s compensation claim form, evidentiary statement and the like he said he had sustained injury, variously, on 15, 16 or 17 June 2002. In cross-examination he was shown concrete despatch sheets which recorded the movements of the first defendant’s concrete trucks and records of the hours worked by him on 14, 15 and 17 June 2002. Those records showed that on those days truck 234 was engaged making deliveries throughout the day. He agreed 16 June 2002 was a Sunday and the plant would have been closed. He gave evidence he had no accurate memory of the date of injury and was unable to recall what work he had done on any given day during that period. I accept that evidence.

14 The first record of attendance upon a medical practitioner in respect of the alleged injury occurred on 16 July 2002 when Dr Gobbo, the plaintiff’s general practitioner, was consulted. Dr Gobbo’s notes, dated 16 July 2002, record “(L) shoulder pain. P Hx R.A. Radiation to L arm (de-dagging truck at work on 15/6)o/e (L) shoulder/neck: Full ROM; x-ray and r/v”

15 Mr Schofield gave evidence that he remembered the plaintiff doing a de-dagging job and that days or weeks after it the plaintiff said he had to go for an operation. The plaintiff said the operation was because of de-dagging which he had done in the back of the barrel. The plaintiff told him he initially thought he had strained a muscle and was not going to worry about it.

16 Mr Hemmers is still employed at the first defendant’s Wyong plant. Mr Hemmers was, on the plaintiff’s evidence, a witness who could have given evidence as to the jackhammer which was being used at the time, the circumstances of injury and date when injury occurred. He was not called to give evidence by the first defendant in circumstances where it was to be expected he would be called. In the circumstances I infer that the evidence of Mr Hemmers would not have been of assistance to the first defendant’s case – Jones v Dunkel [1959] HCA 8; [1959] 101 CLR 298.

17 At the completion of the oral evidence the plaintiff’s senior counsel foreshadowed an application to amend the statement of claim to allege injury was sustained “on or about 15 June 2002”. He particularised this period as “a week either side of 15 June 2002”.

18 Subsequently senior counsel applied to amend the original statement of claim by alleging the injury was sustained on 19 June 2002. The plaintiff was permitted to, and did, amend the statement of claim to allege injury on 19 June 2002. He was granted leave to adduce further evidence on this issue. That evidence consisted of the concrete despatch sheet, the time sheet and meteorological records, all relating to 19 June 2002. The documents disclosed that the plaintiff was at work for four hours on that day and worked three of them. The nature of the work performed by him was not apparent, save that truck 234 did not make any deliveries on that day. The meteorological records established that the weather was wet (the despatch records had a contrary note) and despatch records established that a number of trucks did not make deliveries that day. The plaintiff relied upon this evidence to establish the date of injury.

19 The first defendant submitted that the evidence that the injury occurred on 19 June 2002 should not be accepted as the documentary evidence of the plaintiff’s work on that day indicated that he was present for only fours hours at work of which he worked only three and he had given no evidence that he was injured on that specific day or that he was de-dagging on that day.

20 Counsel for the first defendant when asked:

“Did you cross examine the plaintiff to suggest he had not suffered injury or increase of pain while doing de-dagging work at any stage?”

replied

“No, your Honour, no, I didn’t. I didn’t put ‘You didn’t suffer an injury?’ The cross examination that I put to Mr Hodge was directed to: it didn’t occur in the way you’ve alleged on all the days you’ve alleged. He certainly reported it, your Honour, and there’s no basis upon which I could say it didn’t happen, as it were. But that’s a different proposition to: did it occur on the day you’ve asserted and the factual way in which you’ve described it, particularly what now you say is the date of accident. And secondly, that’s not to suggest that the other integers or what I have described as the factual integers of his claim fit within the way he presents the case to your Honour.”

21 The criteria to be met in order to establish that 19 June 2002 was the date of the plaintiff’s injury appear to be:

(a) That it was a wet day – and thus a day when it was likely de-dagging may be carried out;

(b) That truck 234 was not used to make deliveries on that day – thus supporting the inference that de-dagging was in fact carried out on that day;

(c) That the plaintiff was working at the first defendant’s premises for a minimum of about six hours on that day;

(d) That that day, though not expressly nominated by the plaintiff as the date of injury, fell within a period within which the evidence indicated injury had occurred.

22 Criteria (a), (b) and (d) are established on the evidence. Criterion (c) is not established. The evidence indicates the plaintiff was at the first defendant’s premises for four hours on that day of which he worked three hours at the most.

23 It could be contended that the injury occurred on 19 June 2002 and the plaintiff has merely exaggerated his evidence as to the number of hours he worked de-dagging the truck. However the plaintiff’s evidential statement stated he was de-dagging for “almost six hours” he confirmed in his evidence he was de-dagging for “five to six hours” and in cross-examination he said it took him “a full day”.

It is possible that 19 June 2002 is the date of injury but I am unable to so find on a balance of probability on the evidence before me.

24 However, the date of injury does not appear to be of particular significance in the case rather it is what happened on the day that matters. The plaintiff’s evidence, the evidence of Mr Schofield and the comments fairly made by counsel for the first defendant and the Jones v Dunkel point in respect of Mr Hemmers, in my opinion, permit me to infer the injury did occur at work whilst the plaintiff was de-dagging truck 234 during the period June to 16 July 2002. I would grant leave to the plaintiff to amend the statement of claim to accord with that evidence, if necessary.

The weight of the jackhammer

25 The plaintiff gave evidence that he did not know the weight of the jackhammer he had used at the time. He described the difference in weight between the Kanga jackhammer he previously used and the large jackhammer as “chalk and cheese. One is heavy and one is light”. At the request of his solicitor he attended an equipment hire company and identified and photographed an equivalent sized jackhammer to that which he was using when injured. The weight of that jackhammer was specified in the hirer’s literature as 25 kilograms.

26 Mr Schofield gave evidence that he did not know who had hired the jackhammer which was used by the plaintiff. He agreed he hired jackhammers on occasions from an equipment hire company to be used in de-dagging. He could not find any records of the hire of the jackhammer which the plaintiff used when injured. He had no idea of the size of the jackhammer the plaintiff was using at that time although he would not have hired anything he could not use himself.

27 Mr Schofield’s evidence did not cause me to reject the plaintiff’s evidence on this issue. Mr Hemmers was not called by the first defendant. I accept the plaintiff’s evidence as to the weight of the jackhammer he was using when injured.

28 In my opinion the plaintiff has established negligence on the part of the first defendant.

29 There will be a verdict for the plaintiff against the first defendant.

The liability of the second defendant

30 In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at [12] the High Court affirmed that

“An employer owes a non delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work.”

31 “The non delegable duty rests on the employer ‘whether or not the employer takes any share in the conduct of the operations’” – Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [32]

32 A person subject to a non delegable duty cannot escape liability if the duty has being delegated and then not properly performed... “the party owing the duty was liable both for its own personal negligence and for any negligence on the part of its delegate” - Pollard at [33]

33 The duty of care was delegated by the second defendant to the first defendant. The duty was not properly performed by the first defendant. Accordingly the second defendant is liable to the plaintiff for the breach of the non delegable duty of care owed by it to the plaintiff.

34 There will be a verdict for the plaintiff against the second defendant.

Contributory negligence

35 At common law, a plaintiff is guilty of contributory negligence when he or she exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed - Joslyn v Berriman [2003] HCA 34; (2003) 214 CLR 552 at [16]. The issue of contributory negligence is governed by s 5R of the Civil Liability Act so far as the first defendant was concerned. That section provides:

“(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.”

36 The words “reasonable person in the position of that person” in s 5R are equivalent to the words “a reasonable person in the plaintiff’s position” - Waverley Council v Ferreira [2005] NSWCA 418.

37 The first defendant, in its defence, alleged that the plaintiff “positioned himself in a position of peril”. The second defendant particularised the contributory negligence in its defence as the plaintiff had failed to carry out proper procedures as defined by the defendants and failed to adhere to the defendants’ directions.

38 In final addresses however it was submitted that the contributory negligence was the plaintiff’s failure to use the jackhammer below waist level at a downward angle. It was submitted that an apportionment for contributory negligence in the range of 10 to 15 per cent was appropriate.

39 The plaintiff gave evidence that he did not operate the jackhammer in that way as “you could not see what was falling on your head” and he had been told by his boss “never to do that”. Mr Schofield, in his evidence, did not challenge the plaintiff’s evidence as to the instructions received by him.

40 The onus of establishing contributory negligence rests with the defendants. In my opinion that onus has not been discharged. I reject the submission that an apportionment for contributory negligence is appropriate in this case.

Apportionment between the defendants - Section 151Z of the Workers Compensation Act 1987

41 The first defendant sought to reduce its liability pursuant to s 151Z(2) of the Workers Compensation Act 1987.

42 The first defendant contended that responsibility should be apportioned to the second defendant as to 35 per cent. The second defendant and the plaintiff submitted that there should be no apportionment or, if apportionment was to be made, it should not exceed 10 to 15 per cent.

43 The second defendant is liable for breach of its non delegable duty of care to the plaintiff by reason of the failure of the first defendant in the provision of a safe system of work and proper equipment. In my opinion there should be no apportionment of liability in respect of the negligence of the first defendant.

44 The question is however whether there was a direct breach of duty (Pollard at [41] referring to Giles JA in Glynn v Challenge Recruitment Australia Pty Ltd [2006] NSWCA 203) by the second defendant which contributed to the plaintiff’s injury. In my opinion there was not for the following reasons:

(a) The second defendant had no direct involvement in the first defendant’s site. It had no control over the site. It did not have a supervisor on site. It was not involved in the plaintiff’s day to day work and there was no evidence it was aware of the use of a full sized jackhammer to de-dag trucks;

(b) The second defendant had been supplying the plaintiff’s labour (and presumably the labour of others) to the first defendant and Pioneer Concrete for at least three to four years. It may be taken to have been aware that de-dagging of the barrels of concrete agitator trucks was carried out from time to time;

(c) However de-dagging was performed intermittently and on dates which were not predictable. It would have been unlikely the second defendant would have observed de-dagging being performed had it carried out a site inspection;

(d) Had the second defendant observed de-dagging being performed prior to the theft of the first defendant’s Kanga jackhammer it would have observed the work being carried out using appropriate equipment and as part of a safe system of work;

(e) Accepting, as I do, the plaintiff’s evidence that since the loss of the first defendant’s Kanga jackhammer the first defendant had hired similar hammers from the equipment hire shop for use in de-dagging I conclude reasonable inspection or inquiry by the second defendant at any time prior to the day before the plaintiff’s injury would not have revealed any breach of the duty of care. I have preferred the plaintiff’s oral evidence to the evidence in his evidentiary statement para [21] as I consider his evidential statement in respect of a number of significant matters is inaccurate when compared to the evidence disclosed on hearing and that the evidential statement displayed a tendency to overstate the case against the defendants (see e.g. [13,22,23,39,40,41] of the evidential statement). I have also had regard to Mr Schofield’s evidence as to the general practice in hiring jack hammers.

(f) The plaintiff was experienced in the job.

(g) The plaintiff had been provided by the second defendant with a safety handbook in January 2002. He acknowledged, in writing, he had received and read the handbook. The handbook set out safety procedures to be followed and in particular workers were directed to notify the second defendant of any hazardous or potentially hazardous situations identified and not to undertake tasks that were unsafe;

45 In my opinion no direct negligence by the second defendant has been established. Accordingly there will be no reduction in the verdict against the first defendant by reason of the application of s 151Z(2) of the Workers Compensation Act 1987. There will be a verdict for the second defendant on the first defendant’s cross-claim against it.

Second Defendant’s cross-claim - Worker’s Compensation Indemnity

46 Section 151Z(1)(d) of the Workers Compensation Act, 1987 provides:

“(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect:...

(d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)”

47 In consequence of my findings the second defendant is entitled to recover an indemnity on its cross-claim against the first defendant including an indemnity in respect of payments made to, for, or on behalf of, the plaintiff pursuant to the Workers Compensation Act, 1987.

Damages

The medical issues

48 The plaintiff complained of pain in the left scapula and arm as a result of the subject injury. On 12 September 2002 Dr Spittaler, a neurosurgeon, performed a C6/7 anterior discectomy and foraminotomy to relieve that pain. On operation he found that a combination of a prolapse of the C6/7 disc and an osteophyte was compressing the left C7 nerve root. Doctor Spittaler considered the disc prolapse was due to the work injury. Following the operation the plaintiff had no left arm pain but did have some pain in the scapula.

49 On review on 17 December 2002 Dr Spittaler wrote:

“He has been very well and is returning to work as a truck driver in Cowra where he has now moved. Apart from some care with lifting I would suggest no specific restrictions”.

50 The plaintiff did well until late October 2004 when he awoke one morning with neck, left shoulder and left arm pain which persisted. Dr Spittaler considered him unfit for employment at that time but concluded the genesis of the arm pain and its relationship to the 2002 work injury was uncertain.

51 In January 2007 Dr Spittaler reported:

“... I don’t believe that Mr Hodge is fit for heavy work and most definitely he would not be fit for work as a heavy vehicle operator, specifically a concrete mixer driver. He should avoid work requiring a large amount of bending, lifting or extension of his cervical spine. He would be fit for more sedentary work such as office work. I would consider a permanent lifting restriction of 10 kilograms appropriate.”

52 On 21 November 2007 Dr Spittaler reported:

“Based on the recent MRI scan the diagnosis is foraminal stenosis due to osteophyte formation. In short, the patient has cervical spondylosis or degenerative change in the cervical spine. This is likely to be related to the previous injury occurring in 2002. In short, it is unlikely Mr Hodge would have arm pain or spondylitic foraminal stenosis at this point in time had he not been injured in 2002.”

53 He gave evidence:

“A. It is my belief that the disc injury has led to an earlier onset, if you like, of an osteophyte big enough to cause nerve root compression.

Q. And you consider that, at some stage, that would have occurred notwithstanding the injury of the prolapse in 2002. Is that so?

A. Yes, it could have. I mean this man has a long history of heavy, physical work which is associated with cervical spondylosis so he may well have developed the foramental stenosis without the disc injury but I would be of the opinion that the disc injury has made it symptomatic and made the osteophyte form probably earlier.

Q. When you say ‘probably earlier’, are you able to assist his Honour in saying about in years, say, how far that has been brought forward?

A. Well, I certainly think it would be in the number of years, rather than months for instance. Maybe 10 years. I can’t be anymore concrete than that.”

54 He also said:

“Q. The spinal stenosis I think you just referred to then, is it the case that once you start developing the narrowing, that the further undertaking of heavy, arduous work, will result in the progression of that condition?

A. It is generally accepted that there is some relationship to heavy physical work, particularly lifting, in the progression of cervical spondylosis

Q. And from a clinician’s perspective, the best advice to give is that work, once that osteophytic component is known, should be avoided

A. Generally, yes.”

55 The plaintiff qualified Dr Burgess, an orthopaedic specialist. He examined the plaintiff in November 2004 and reported:

“This man has residual symptoms following surgery for cervical nerve root decompressions. He still suffers from cervical spondylitis and neuralgia affecting the function of his left shoulder...He is unlikely to improve and has increased his susceptibility to further injury particularly at the adjacent disc, having increased the rate of ‘wear and tear’ on his neck...His residual disability is one of persistent and permanent intolerance of specific neck and left shoulder stresses...He is not totally fit to resume his pre-accident employment as a concrete truck operator or to do any job that involves specific stresses on his neck and left shoulder and that includes any labouring or pick and shovel work or the like...With regard to pre-existing diseases or conditions, the x-rays suggest that he had a level of constitutionally based ‘wear and tear’ of the C6/7 disc but he had no symptoms whatsoever prior to the extraordinary stresses of working for six hours inside the concrete mixer bowl so I feel that his current problem is in substantial part a legacy of that activity on that day and has no significant contribution from a level of spondylosis of the C6/7 disc”.

56 At re-examination on 28 August 2006 Dr Burgess reported:

“He is no longer fit to work as a truck driver in his previous job or in any job that places specific stresses on his neck. He seems to be able to cope with his current occupation of business man i.e. kennel operator.”

57 Dr Burgess also re-examined the plaintiff in October 2008. He stated that his opinion and the prognosis were unchanged. It was only on that examination that reference was made to a history of inflammatory spondylitis but as the plaintiff told Dr Burgess that was only a problem whilst working at the abattoirs and that his major problem at the time was in his back Dr Burgess did not take the matter further.

58 Dr Potter, a rheumatologist in private practice since 1982 was qualified by the first defendant. He said, as to the factors contributing to the plaintiff’s neck problem that the dominant pathology in his neck was osteophytic change, the second pathology was the specific incident, the third pathology was the natural history that will occur with the osteophytic progression and the fourth pathology is likely to be his spondyloarthritis.

59 The plaintiff has additional medical problems. He has, for well over a decade intermittently attended rheumatologists complaining of pain and stiffness in the neck and lower back and, on occasions a sense of fatigue. The stiffness tended to be improved by exercise but not rest and initially tended to go within an hour or so of getting up.

60 In February 1996 he bumped his right elbow which became swollen and ached. He felt very tired and fatigued at the time. Tests detected the presence of HLA-B27 antigen. The elbow problem caused him to stop work for some months but eventually settled. At that time he also complained that the stiffness and neck pain had continued intermittently over the last three years.

61 In May 2000 he consulted a general practitioner complaining of the neck and back conditions of which he had previously complained. He was referred to the rheumatologist Dr Baume. He told Dr Baume he was getting intermittent attacks mainly in the neck and lumbar spine. The attacks would last about four weeks and occur approximately six monthly. In the last three months he had developed pain in the low lumbar region which had been fairly consistent and involved intermittent shooting pain right down to the ankles. He also complained of increased pain in his neck that seemed to radiate from the left shoulder.

62 Dr Baume diagnosed ankylosing spondylitis based upon his interpretation of radiological evidence.

63 On 3 November 2000 the plaintiff complained to Dr Baume of intermittent neck and back pain associated with up to three hours of early morning stiffness with intermittent radiation of pain down his legs particularly with walking. He was taking Salazopyrin and Naprosyn and told the doctor that if he missed any of these medications he was significantly worse.

64 On 16 September 2003 the plaintiff was referred for these problems to Dr Bak, a rheumatologist who had practiced as such since 2002. The plaintiff acknowledged a history of his parents being affected by osteoarthritis to Dr Bak.

65 The rheumatologists who had previously examined the plaintiff had noted the stiffness in his spine particularly in the lower back. The plaintiff had a marked and observable stiffness in his spine when moving about the court room during the hearing.

66 In 2006 the plaintiff saw Dr Richmond, general practitioner, complaining of fatigue that had come on over a few months.

67 Dr Potter, gave evidence he examined the plaintiff on 25 January 2008. He found the major feature on examination was significant back stiffness chiefly localised to the lower back. He considered the diagnosis rested between ankylosing spondylitis and undifferentiated spondyloarthropathy.

68 Ankylosing spondylitis is an ascending, slowly progressive spinal stiffness in which the vertebrae are fused as a result of bony bridging between them caused by the development of syndesmophytes. The inflammatory process causes pain and in its ultimate form the condition results in the fusing of the entire spine.

69 Typical indicators of the condition include inflammatory back pain of more than three months duration, which improves on exercise rather than rest, fatigue, and positive HLA-B27 test. The HLA-B27 antigen is present in 95 per cent of persons with ankylosing spondylitis, while 7 per cent of the normal Caucasian population will have this without ankylosing spondylitis. As previously noted the plaintiff had a positive HLA-B27 antigen.

70 However ankylosing spondylitis cannot be diagnosed in the absence of appropriate radiological findings. Such findings may not become manifest until a few years after the commencement of genuine inflammatory back pain. In the absence of any recent radiological evidence Dr Potter was not prepared to diagnose ankylosing spondylitis.

71 Undifferentiated spondyloarthropathy is diagnosed where the pathology does not fit absolute criteria for a known condition. This condition can progress to ankylosing spondylitis. Dr Potter referred to studies which indicated a 60 per cent risk of such progression within three years of diagnosis of spondyloarthropathy though this frequency was not replicated in Dr Potter’s practice.

Dr Potter concluded:

“This patient has a spondyloarthritis for which the best medical category on the available data is undifferentiated spondyloarthritis. There cannot be any other reasonable interpretation on the data.”

72 Dr Bak, who also gave evidence, agreed there were matters in the plaintiff’s history which made him suspect the diagnosis of ankylosing spondylitis. He did not diagnose such a condition. He said:

“What I cannot answer is whether this man has ankylosing spondylitis or not”.

The reasons for this were insufficient radiological material and the fact that when last seen the characteristics of the pain were not that of inflammatory back pain. Dr Bak accepted that a certain proportion of people with undifferentiated spondyloarthropathy will develop ankylosing spondylitis though he was unable to specify a percentage.

73 Dr Bak questioned the diagnosis of spondyloarthropathy. He gave the following evidence:

“Q. Yes; and, doctor, just finally, leaving aside the presumed trauma to his spine and the surgery, did you see this man as at 2003 as likely to have any long term disabling problems from any condition in your area of specialty?

A. So, apart from the injury

Q. Leaving aside the trauma?

A. No.”

74 Dr Bak said:

“Even if we assume he has a mild form of ankylosing spondylitis this is not a disease which will inevitably lead to career ending disability as, with modern therapeutic options patients even with severe ankylosing spondylitis can be managed.”

He agreed patient response to the therapies was variable and there were side effects including increased rates of infection.

75 Dr Bak noted the plaintiff had Scheurmans disease in the lumbar spine which can be asymptomatic or can cause vague symptoms.

76 There has been, over the years, evidence strongly suggestive of ankylosing spondylitis or spondyloarthropathy in the plaintiff. Dr Potter’s diagnosis appears more consistent with the medical history, the observations of other rheumatologists and the plaintiff’s presentation at Court. I prefer the opinion of Dr Potter who has the benefit of many years of clinical experience, to that of Dr Bak.

77 The first defendant accepted the plaintiff had suffered an injury to the C6/7 disc whilst doing de-dagging and that the injury required surgery which was undertaken, quite reasonably, by Dr Spittaler. However, it submitted that the effect of that injury had been overtaken by the underlying degenerative condition and any problems and incapacity which the plaintiff now suffered or had suffered since 2004 would have been suffered by him irrespective of the subject injury.

78 The first defendant also submitted the plaintiff suffered from an unrelated concurrent condition, most probably undifferentiated spondyloarthropathy which, of itself, had the potential to become increasingly debilitating and incapacitating. The plaintiff’s damages should be significantly reduced to reflect this condition and the underlying degenerative condition each of which impact upon all aspects of the plaintiff’s claim and will continue to do so in the future.

79 The plaintiff relied upon evidence of Dr Spittaler that some people have degenerative changes such as the plaintiff but no symptoms, that the plaintiff had been asymptomatic prior to the subject injury and stressed that Dr Spittaler’s evidence was that the underlying degenerative condition may have manifested itself in ten years, not would. The plaintiff contended that there should be no reduction in his damages by reason of the underlying degenerative condition. The plaintiff submitted there was no ongoing inflammatory condition or if there was it was capable of being treated. The condition was unpredictable in its course and may be quiescent for periods.

80 In my opinion the plaintiff’s current neck and left arm problem are due to further osteophyte formation in the cervical spine. I accept Dr Spittaler’s evidence that the disc injury in 2002 has accelerated development of the osteophyte by some years maybe in the order of 10 years. I accept that persons can have severe, but asymptomatic degeneration in their spine though having regard to the work in which the plaintiff engaged it seems to me unlikely that the plaintiff’s underlying degenerative condition would have remained symptomless had there been no injury.

81 I also accept that the spondyloarthropathy is a distinct and separate condition and that it, independently of the subject injury may progressively incapacitate the plaintiff to a level exceeding any incapacity resulting from the work injury. There is a possibility that the plaintiff will become totally incapacitated by this condition although there is also the possibility of remission or successful treatment which must be factored in.

82 In my opinion the pre-existing degenerative condition and the spondyloarthropathy give rise to significant adverse contingencies for the plaintiff which must be taken into account when assessing his damages.

The plaintiff’s likely situation but for injury

83 The plaintiff’s case was that, but for injury, he would have continued to live on the Central Coast working either as an employed driver of concrete agitator trucks, or as the owner of one or two such trucks or doing other work earning the average weekly wage. As a result of the injury he was forced to leave the Central Coast and move back to the Central West of NSW.

84 The evidence which supported that case was primarily as follows:

(a) The plaintiff and his family had established themselves on the Central Coast. They had bought a house, the plaintiff was in full time employment essentially as a driver of concrete agitator trucks and the older children were settled in school. The plaintiff and his wife were involved in local activities. The plaintiff’s parents and his wife’s mother lived on the Central Coast.

(b) The plaintiff’s wife gave evidence that she and her husband loved living on the Central Coast. The plaintiff gave similar evidence and said that in 2002 he saw his future as being on the Central Coast.

(c) The plaintiff gave evidence he had looked at buying a concrete agitator truck. There was a concrete agitator truck with a 10 year contract (with eight years to run) for sale that he considered to be a really good business. His accountant had looked at the books of the business. The sale price was $150,000. He gave the following evidence:

“Q. How far advanced were you in terms of buying a truck and setting yourself up at the time when you were injured in the middle of 2002?

A. Well, I put the buses on the market and all, but had them sold when I was injured. To sell the buses was to finance the loan to buy a truck.”

He said he proposed to use $50,000 from the sale of the bus business and borrow the remaining $100,000 from the bank on the security of his house. His wife confirmed in her evidence that she and the plaintiff had talked about buying a concrete truck. The plaintiff did not proceed to purchase a truck.

(d) The plaintiff gave evidence that he and his parents “decided to move back to the bush to do something with dogs together”. It was not planned until he got injured and had he not been injured, he could see no reason why he would have moved from the Central Coast to Cowra.

(e) The plaintiff’s wife gave evidence that if the plaintiff had not had the surgery there were no plans to leave the Central Coast or go back to the Central West and that when the plaintiff “couldn’t like work it just got too dear to live there”.

(f) In his evidential statement the plaintiff said (Ex A [32]) “after I returned to work I was offered very little work by Adecco with either Pioneer or the first defendant. Given the lack of work my wife and I decided to move back to the Cowra area where we had family and could live more cheaply than at the Central Coast.”

85 The defendant submitted that the plaintiff’s decision to return to the Central West was not taken as a result of the subject injury but for other, primarily lifestyle, reasons as:

(a) The plaintiff gave evidence that in his lifetime he had owned “thousands probably of greyhounds”. He gave the following evidence:

“Q. When you say you have owned thousands is that since you were a child?

A. Yes.

Q. Your whole family has been into breeding and training and racing?

A. That’s correct.

Q. You have also had a keen and active interest in greyhounds?

A. Yes.

Q. It has always been a long term aim of yours like your father and your grandfather?

A. Yes, you could say that, yes.

Q. And when you moved to Gooloogong that fitted nicely within those aims that you and your family had had?

A. That’s probably right. That’s what we decided to set up, yes.”

(b) The plaintiff’s wife gave evidence as follows:

“Q. But before you put your house on the market, I take it you discussed where you were going to move to.?

A. Well we wanted to go back to Gooloogong to buy the dog kennels but they were just too dear at the time.”

The plaintiff’s wife gave evidence that the plaintiff’s parents home sold quickly but the plaintiff’s home took a lot longer to sell.

(c) The plaintiff gave evidence that his house was on the market for three months. There was a little bit of trouble selling it. It was sold and the sale then fell through. The settlement period on the ultimate sale was three to six weeks. The funds from the sale of the Central Coast property were used to buy the Cowra property. The purchase of the Cowra property and the sale of the Central Coast property went through “pretty close” to the same day. The settlement date for the Cowra property was 05/11/02 which was the date of the transfer of the property to the plaintiff and his wife. It follows from this evidence that the decision to move to Cowra was made in early July 2002 at which stage the plaintiff had not even consulted a general practitioner about the injury which he had initially thought was merely a muscle strain. It would not have been until after the plaintiff’s convalescence from surgery i.e. post 12 September 2002 that the plaintiff could have formed any rational opinion as to any long term impact of the injury. If life on the Central Coast was as settled and desirable as suggested in the evidence of the plaintiff and his wife then it is unlikely a precipitate decision to leave would be made.

(d) The contract for the sale of the bus business was dated February 2002. The money from the sale was used to reduce the mortgage on the plaintiff’s home on the Central Coast. The sale was consistent with an earlier decision to leave the Central Coast.

(e) The plaintiff and his parents were returning to an area with which they were familiar. The parents were obviously closely involved with the plaintiff and his family. As they took part in the move and ultimately came to live with the plaintiff in Gooloogong they could have given relevant evidence. However they were not called.

(f) The operation by Dr Spittaler was successful and the plaintiff was fit for most forms of work following it.

(g) There was no documentary evidence (such as records of the proposed purchase, the application to the bank for finance etc.) to corroborate any intention of the plaintiff to purchase a concrete agitator truck business. There was no evidence from the proposed vendor, the accountant who was said to have examined the books of the vendor or the banker who was to finance the purchase to corroborate the plaintiff’s evidence. It should not be accepted the plaintiff, but for injury, would have purchased a concrete agitator truck business.

(h) In his report dated 3 December 2004 Dr Burgess reported in respect of the plaintiff:

“Having planned to do so before the accident happened, he undertook to move to Cowra whereupon his work promptly sacked him, saying that the insurance company would not cover him if he left the area.”

The plaintiff did not accept he had told Dr Burgess that he planned to move to Cowra before the accident happened.

86 In my opinion the evidence does not establish that the move to Cowra was a consequence of the subject injury. On the evidence before me it is more likely the move to Cowra was a result of a decision made prior to the injury to return to the Central West and fulfil a long term aim of the plaintiff and his father.

Quantum

Non economic loss

87 The statutory maximum figure for non economic loss is $473,500. The plaintiff is to be awarded that sum which represents the appropriate proportion of a most extreme case for non economic loss attributable to the subject injury - Civil Liability Act, s 16.

88 The plaintiff’s medical condition is dealt with in some detail earlier in this judgment. In short the plaintiff is right handed. He has pain and impairment in the neck, left shoulder and arm as a result of the subject injury. As a result he is unfit for heavy work and activities involving specific stresses on his neck and left shoulder. He gave evidence he tends to do most things but these can cause pain. He said he has been prescribed morphine patches and takes pain killers when required. Since the injury he has become, on occasions, cranky and abusive, for which behaviour he is apologetic. He gave evidence he took anti-depressant tablets prescribed by his general practitioner but there was no evidence from the general practitioner or a psychiatrist. The plaintiff has pre-existing degenerative changes in his spine and an unrelated spondyloarthropathy.

89 The plaintiff has submitted the appropriate proportion is 45 per cent of a most extreme case. The defendant, 28 per cent.

90 In my opinion, the appropriate proportion attributable to the subject injury is 35 per cent of a most extreme case. Accordingly, I allow under this head $165,500.

Past out of pocket expenses

91 These are agreed at $16,892.80.

Future Out of Pocket Expenses

92 The plaintiff claimed, as a one off cost, specialist consultations with a neurosurgeon on four occasions at a total cost of $720. The first defendant submitted that this claim should be rejected as the need for these costs was supported only by the medical evidence of Dr Davis in his report dated 5 September 2006, which report did not explain the need and medically indicated reason for these costs. On the basis it is a “one off” cost and not a recurrent expense I allow this claim at $720.

93 The plaintiff claimed for the cost of a future pain management course, the cost of which was agreed mathematically at $7500. The first defendant submitted this item should not be allowed as the medical evidence did not support the need for it. There is some support from Dr Davis and, it would seem, from Centrelink. The plaintiff said he would undergo a course of pain management if recommended. There is a low possibility that the plaintiff may be advised to and undergo a course of pain management in the future which I compensate at $2000.

94 The plaintiff claimed $22,675 for future surgery, being $25,000 deferred for two years. The first defendant accepted the costs of the surgery at $25,000 but submitted that any sum allowed under this head should be heavily discounted as the surgery may never take place and that in any event any further surgery was most likely brought forward by reason of the alleged accident and the surgery was likely to be deferred for some period.

95 Dr Spittaler gave evidence that the requirement for surgery is based on persisting arm pain and its severity. He said

“When I saw Mr Hodge in January of this year [2007] his major problem appeared to be neck pain rather than arm pain. If the arm pain escalates, surgery will be required. I think the likelihood of this is reasonably high, for argument’s sake over 50%. That would therefore make it more likely than not. The cost of surgery, specifically a cervical foraminotomy, would be in the order of $20,000 to $25,000 inclusive of practitioners and hospital costs. It is likely that surgery would be required within the next five years.”

96 Dr Little, a neurosurgeon in a report to the referring general practitioner (Dr Richmond), considered that surgery remained an option but not something that one should suggest rushing into.

97 The plaintiff said that if a second opinion favoured operation he would have it.

98 I discount this item to $12,000 to reflect the possibility the operation will not take place, that it will be deferred in any event and that the need for the operation would ultimately have arisen due to the underlying degenerative condition, irrespective of the work injury.

99 The plaintiff claimed a total of $96.60 per week over his life expectancy for recurring expenses. These comprise the following:

(a) Four general practitioner visits per annum at $60 per visit. The first defendant submits that any allowance should be less than that claimed as the amount claimed assumes that the only medical condition from which the plaintiff might have this need is injury related. I accept the first defendant’s submission. I allow this claim at three visits per annum.

(b) Medication comprising Panadeine Forte, Naprosan, Tramal, Glucosamine, Endep, and Neurofen Plus. The first defendant submits that a lump sum allowance of $2000 would be appropriate for the ongoing use of analgesia as the plaintiff only gave evidence of using Neurofen Plus, for which a claim at the rate of $12 per week is made. The medical evidence generally supports the use of analgesics and there was evidence of the use of pain patches and anti depressants. I allow this claim at $25,000.

(c) Remedial massage/physiotherapy - $1500 per annum ($29 per week). The first defendant submitted that this claim should be rejected as the plaintiff gave no evidence about having this treatment. The evidence of Drs Spittaler, Bak and Potter is to the contrary of this need, and there is scant support for it. I reject this claim.

Past economic loss

100 The plaintiff claims past economic loss at the rate of the plaintiff’s income had he been uninjured but continued as an employed driver of concrete agitator trucks or had become an owner of one or two such trucks or was doing other work earning the average weekly wage.

101 The defendants would allow $535 net per week from 1 September 2002 to 17 December 2002 only, a total of $8560 and loss of superannuation for that period. It is agreed by the parties that loss of superannuation may be calculated on the basis of 10 percent of net earnings. Accordingly, a sum of $3856 should be allowed for loss of past superannuation.

102 The defendant’s calculation essentially was made on the basis that:

(a) The plaintiff, had he not been injured, would not have purchased a concrete agitator truck but would have continued to be employed as he was at the time of injury and that thereafter he would, irrespective of the injury, have moved to the Cowra area and purchased a greyhound training facility as he in fact did.

(b) The plaintiff worked for Mr Bryant from January 2003. He did essentially the same type of work as he had done for the defendants. Mr Bryant gave evidence that the work with him was a full time position, the plaintiff was very competent, he never complained about not being able to perform any aspect of the work and there were no aspects which he did not do. He “was a very very good operator and very reliable.” This was supported by the opinion of Dr Spittaler. The plaintiff sustained no relevant loss by comparison with his pre injury earnings during this period.

(c) Mr Bryant gave evidence that the plaintiff said he was leaving because

“his father had been diagnosed with cancer and his father had a greyhound training operation at Gooloogong, which is about forty kilometres west of Cowra and that he just needed assistance running the thing because he wasn’t well, and he gave me his notice.”

(d) At all times prior to the end of October 2004 the plaintiff was able to perform his pre-injury work. Any loss sustained by him during that period was not a consequence of the work injury.

(e) Since November 2004 to date the plaintiff has worked in the Country Comfort Kennels business albeit that business is yet to return a profit. He has also worked at the hotel where his wife was a licensee. He appears to have been paid $10,000 per annum for that work.

(f) Any loss of earnings incurred by the plaintiff since 18 December 2002 would have been incurred by reason of his move to Central NSW and the decision to operate Country Comfort Kennels. It is not attributable to the subject injury.

103 I generally accept the defendants’ submissions on this aspect. It is possible that had the plaintiff been uninjured and living in the Central West he may, on occasions, between November 2004 and the present have taken casual employment doing work for which he has been incapacitated by the work injury. I allow $30,000 for this possibility which should be added to the amount in [101].

104 I assess damages for past economic loss at $38,560.

Interest on past economic loss

105 Interest is recoverable on past economic loss pursuant to the Civil Liability Act, 2002, s 18. Interest on the past economic loss as assessed is agreed at $6084.50.

Fox v Wood

106 This component is agreed at nil.

Future economic loss

107 The plaintiff contended for compensation on the basis of total impairment of future work capacity.

108 The defendant submitted that the appropriate damages under this head should be calculated upon one of the following alternatives:

(a) a cushion of $50,000;

(b) $200 net per week loss less 15 per cent for 10 years or $250 net per week less 15 percent;

(c) $200 net per week less one-third until age 65 or $250 net per week less one-third to age 65.

109 In order to recover damages for loss of future earning capacity a plaintiff must establish that his or her earning capacity has in fact been diminished by reason of the negligence caused injury and the diminution of earning capacity is or may be productive of financial loss – Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1 see also Civil Liability Act 2002 s 13.

110 In my opinion the plaintiff has a diminution in earning capacity by reason of the subject injury which has, on the medical evidence which I accept, rendered him unfit for full time work as a concrete agitator truck driver (albeit he concedes he could drive such a truck but not for a full day), heavy work and activities involving specific strain on the neck and left shoulder. He is however fit to conduct the business of Country Comfort Kennels and would be physically fit for office work but lacks good reading and writing skills. The difficulty is to determine whether the diminution in earning capacity is, or may be, productive of financial loss and if so, its quantification.

111 In my opinion on the findings I have made, the most likely future employment, but for injury, would be as the operator of Country Comfort Kennels or a similar business. If he ceased to work in that area his most likely future employment would have been as an employed concrete agitator truck driver. I am not satisfied there was any real possibility the plaintiff would have become a concrete agitator truck owner/driver or would have owned two such vehicles.

112 The plaintiff was working in the Country Comfort Kennel business at the time of the hearing. He was not searching for any other work but said that if a job came up and he could do it he would do it. He had not made any enquiries for work as he thought it would be unfair to start a job and then have to take time off for court.

113 The plaintiff and his father have a great deal of experience in relation to the breeding, training and care of greyhounds. The property at Gooloogong has facilities for many greyhounds and is licensed to accommodate 300 greyhounds and family pets. The plaintiff since, the acquisition of the property, has built further kennels. The facilities are underutilised at present. However It appears to me probable that the business will, in time, become profitable though I am unable to say to what extent or precisely when.

114 It may be the income generated by the business in time will exceed the salary which the plaintiff would have earned as an employed concrete agitator truck driver. It may be the income of the business will be less than that of an employed concrete agitator truck driver and the plaintiff’s impairment of earning capacity will cause him financial loss. He may wish to leave the business particularly if it is unsuccessful, in which event it is likely there will be financial loss due to the impairment of his earning capacity.

115 The present net weekly earnings of an employed concrete agitator truck driver are calculated at $930 net per week in the accounting evidence before the Court.

116 The calculation of damages for impairment of future earning capacity in this case involves the weighing of many imponderables and mathematical precision is impossible. In my opinion the appropriate allowance for future impairment of earning capacity is $400 net per week to age 65 less 30 per cent for contingencies being the conventional 15 percent allowance for contingencies and an additional 15 per cent in respect of the pre existing medical conditions earlier discussed. Accordingly the damages under this head are $206,612.

117 The parties agree that the amount for loss of future superannuation is $22,727.32.

Past gratuitous care

118 The plaintiff claimed past gratuitous domestic care and assistance at six hours per week at $25 per hour.

119 The first defendant allowed nil in respect of this claim.

120 Section 15 of the Civil Liability Act provides that damages may not be awarded under this head unless there is a reasonable need for services which has arisen solely because of the injury to which the damages relate and the services would not be provided to the claimant but for the injury. Further, no damages may be awarded unless the services are provided (or to be provided) for at least six hours per week, and for a period of at least six consecutive months:

121 The plaintiff gave evidence that as a result of the injury he has pain when sweeping the floor or vacuuming. He still does those things and just puts up with pain later. Similarly when he attends to outside chores. He said that he got help from his parents and wife in respect of things that caused him pain inside and outside the house and that a lot of his mates help out when he needs something big done.

122 In my opinion the evidence does not establish that the statutory requirements for the recovery of damages or for domestic assistance have been met. I reject this claim.

Future gratuitous domestic care and assistance

123 The plaintiff claimed six hours per week at $30 per week.

124 The first defendant allowed nil for this claim.

125 In my opinion the evidence does not establish that the statutory requirements for the recovery of damages for future domestic assistance have been met. I reject this claim.

Future paid care

126 The plaintiff claimed four hours per week at $20 per hour, $76,264.

127 The defendant allowed nil for this claim.

128 There is no evidence the plaintiff has paid for care or assistance to date. However in my opinion there will be occasions when the plaintiff will require assistance as a consequence of his disabilities flowing from the injury. This assistance would not reach the statutory threshold for gratuitous care and would only sound in damages if it was paid for. I allow for this possibility the sum of $30,000.

Assessment of damages - First Defendant

129 I assess the damages against the first defendant at $533,220.59 comprising:

Non economic loss $165,500.00

Past out of pocket expenses $16,892.80

Future out of pocket expenses $42,987.97

Past economic loss $38,560.00

Loss of past superannuation $3,856.00

Interest on past economic loss $6,084.50

Fox v Wood Nil

Future Economic Loss $206,612.00

Loss of future superannuation $22,727.32

Past gratuitous care and assistance Nil

Future gratuitous care and assistance Nil

Future paid care $30,000.00

Damages - second defendant

130 The damages recoverable by the plaintiff from the second defendant are limited by the Workers Compensation Act, 1987 and the Workplace Injury Management and Workers Compensation Act, 1998 to past and future economic loss (including superannuation loss), interest on past economic loss and Fox v Wood.

131 The calculation of the plaintiff’s claims for each of these heads of damage is identical to the calculation against the first defendant. The second defendant adopted the first defendant’s submissions as to these heads of damage.

Assessment of Damages – Second Defendant

132 I assess damages against the second defendant at $260,901.41 comprising:

Past economic loss $38,560.00

Loss of past superannuation $3,856.00

Interest on past economic loss Nil

Future economic loss $206,612.00

Loss of future superannuation $22,727.32

Fox v Wood Nil

Less workers compensation paid $10,853.91

133 I note the financial calculations resulting from my findings were the subject of agreement between the parties.

Orders

134 I make the following orders:

1. Verdict and judgment for the plaintiff against the first defendant in the sum of $533,220.59.

2. Verdict for the plaintiff against the second defendant in the sum of $271,755.32.

3. Judgment for the plaintiff against the second defendant in the sum of $260,901.41.

4. The defendants to pay the plaintiff’s costs.

5. Verdict and judgment for the second defendant on its cross claim against the first defendant in the sum of $260,901.41 plus any costs paid by the second defendant to the plaintiff pursuant to the order made in subparagraph 134(4). The first defendant to pay the second defendant’s costs of the second defendant’s cross claim.

6. Verdict and judgment for the second defendant on the first defendant’s cross claim against it. The first defendant to pay the second defendant’s costs of that cross claim.

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LAST UPDATED:
2 February 2010