Adams v Scobie [2020] NSWDC 620

District Court New South Wales

Medium Neutral Citation: Adams v Scobie [2020] NSWDC 620 Hearing dates: 1 October 2020 2 October 2020 8 October 2020 9 October 2020 Date of orders: 9 October 2020 Decision date: 09 October 2020 Jurisdiction: Civil Before: Montgomery DCJ Decision: 1. Parties to email to my Associate by 9:00am on 15 October 2020, a schedule outlining complete calculation of past economic loss including entitlement to superannuation on the basis given. 2. List the matter for final orders on Friday, 16 October 2020. Catchwords: Damages – Assessment – Past Economic Loss – Future Economic Loss – s 126 Motor Accidents Compensation Act 1999 (NSW) – Buffer – Diminution of Earning Capacity – Future Attendant Care Services – Past and Future Medical Expenses Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 83, 84, 126 Category: Principal judgment Parties: Nigel Adams (Plaintiff)

Russell James Scobie (Defendant) Representation: Counsel:

Mr G.Bateman (Plaintiff)

Ms J.Gumbert & Mr D.Hanna (Defendant)

Solicitors:

Robert Bryden Lawyers (Plaintiff)

Moray & Agnew Lawyers (Defendant) File Number(s): 2020/00127460 Publication restriction: N/A

Judgment (EX TEMPORE) 1. The plaintiff claims damages for personal injury suffered in a motor vehicle accident on 29 March 2017. His entitlement to damages is governed by the provisions of the Motor Accidents Compensation Act 1999 (hereafter referred to as the "MAC Act"). Past treatment expenses are agreed. The plaintiff makes no claim for non‑economic loss. 2. The plaintiff's medico‑legal expert witness, Dr Bentivoglio, assessed Whole Person Impairment at 5%. The defendant's medico‑legal expert witness, Dr Home, assessed Whole Person Impairment at 0%. They applied the AMA‑4 methodology. The common medical opinion is that the plaintiff does suffer a permanent impairment with continuing symptoms caused by the motor accident. No assessment has been issued under Pt 3.4 MAC Act. 3. The agreement as to past treatment expenses is in the amount of $14,981.31. It is agreed that the insurer is entitled to deduct a total of $12,754.43 on account of s 83 payments in the sum of $5,754.43 and s 84 payments in the sum of $7,000. 4. The plaintiff was born on 14 December 1979 and is now 40 years of age. He was educated until achieving his year 10 school certificate in 1995 at Canowindra High School. Significant detail of his work after leaving school was the subject of evidence. All of his work has been of a manual labour variety and none of it clerical or executive type work. He claims that, at the date of injury, he weighed about 130 kilograms and that at the date of trial, about 150 kilograms. That weight gain and that it has been caused by or perhaps more properly stated is, the result of reduced activity brought upon him by suffering the impairments of his injuries is corroborated in the Exhibit Q clinical notes. 5. Immediately after leaving school, he achieved a trainee position as a stores officer at Bathurst Correctional Centre and he described having sought and obtained that work as taking the opportunity to have something on his resume when seeking future employment. Between March 2003 and February 2005, he worked in Sydney in retail. His duties involved some manual work, marking of stock and serving customers. At about this time at an abattoir, he achieved the obtaining of his forklift operators' licence. From March 2005 to June 2006, he worked with Blayne Galvanising, but this work stopped when the business shut down. Between July 2006 and September 2006, he worked as a sandblaster/spray painter assistant at Challenge Implements. This continuous period of employment after leaving school at the end of year 10 culminated in him working for nine years between November 2006 and November 2015 as a crane operator/labourer at Industrial Galvanizers. 6. It can be seen from the history of his employment to this point – that is to November 2015 – that the plaintiff had what would be properly described simply as a history of full‑time permanent employment from having left school at the end of year 10 during which he had attempted various types of work and advanced himself by obtaining his forklift operators licence, his crane drivers certification and his dogman certification. 7. Returning to Industrial Galvanizers; this was heavy work. His duties included working as a dogman, crane operator and the lifting of very heavy steel. At the time, he was living at Mount Druitt. His work with Industrial Galvanizers ended when he resigned because he suffered an extreme grief reaction resulting from the death of his father, with whom he was very close. He said that he knew he had to get back to work and between December 2015 and October 2016, he worked short term contract roles for labour hire companies whilst he "pulled himself together". 8. The plaintiff had an acquaintance named Paul Tinker who was employed at Toyota Motor Corporation (hereinafter referred to as "Toyota"). For a long time, the plaintiff had wanted to get work there and was encouraged by Mr Tinker to do so. Following what he described as a relatively lengthy job application process, including a full medical examination and attending an interview, in November 2016, he commenced work with Toyota. 9. I comment that, on the evidence, to the time of his commencing work with Toyota, the plaintiff had but for interruption of a period of about a year or a bit less during which he suffered the extreme grief reaction on the death of his father, maintained full‑time work. Even on the death of his father, he knew that getting back to work and pulling himself together, as he put it, was the course he sought. Therefore, at the commencement of his employment with Toyota, his intention was to pursue full‑time, permanent employment with the company in the same way that he had done for the whole of his working life but for the interruption caused by the grief reaction consequent of the death of his father. 10. At the time of his commencement for work at Toyota, he had only suffered one injury which was to his lower leg. It occurred in 2013 whilst employed at Industrial Galvanizers. He was then acting as a dogman chaining a beam which rolled onto his leg. He said that he recovered over a period of about four to six months. He denied any physical disability or restriction affecting his capacity to work at the time he suffered the subject motor vehicle collision. In particular, there is no evidence of a prior history of back symptoms. I have received no submission to the contrary of the fact that he was a physically fit and able person for the performance of manual duties with the trade certifications to which I have referred at the time of the subject motor vehicle accident. Indeed, following his lower leg injury, he returned to the performance of very heavy work at Industrial Galvanizers. 11. The plaintiff described the human resources practice at Toyota to be that the company offered new workers a six month full‑time renewable contract pursuant to which the worker was paid and received the full standard benefits of a full‑time permanent worker. If the worker after the two periods under six month renewable contracts was successful, Toyota would offer a full‑time permanent contract. 12. Pursuant to those permanent Toyota contracts, there were even better and what one might call special benefits, such as the provision of a new Toyota Corolla motor car at a cost of $45 per week with free servicing and changeover at 20,000 kilometres. Below, I will again refer to the fact that the plaintiff does not put his case for assessment of future economic loss on the basis of comparable workers at Toyota, including the economic value of those benefits. For that reason, it is not necessary that I consider them further. They are, however, in my opinion, worth mentioning because at the end of the case I have to consider, according to the provisions of s 126 MAC Act, what is reasonable for future economic loss. That in turn contemplates whether that which is submitted to me by the parties is reasonable, and by that, whether the figures suggested are at the highest point or at the lowest point of possibilities. 13. Returning to his employment with Toyota, his employment duties at Toyota included picker/packing. On the ground floor of the premises, the products were heavy and included things such as starter motors and quarter panels. The plaintiff's evidence was that basically all the parts that one would want or require to build Toyota motor cars were stored at the premises, and the heavier of those parts were on the ground floor. There was a mezzanine floor, on which the lighter products were stored. Lighter products included such things as wiring and clips. 14. Working on the ground floor, as he was prior to the motor accident, he drove a chaser vehicle which pulled a trailer, onto which the stock was placed by him. He also drove a counter-balanced forklift. He gave some descriptive evidence of forklifts, not necessarily specific to the forklift that he was driving when working with Toyota. He said that forklifts - and I understand him to have been referring to the type most commonly driven by him and most commonly seen by us all – have workloads of 1.5 to 5 tonne, and generally have three wheels. They are weighted at the back. These forklifts are counter-balanced forklifts. He described another type of forklift as a "high-reach vehicle", which is used for working stores from high shelves. Working a high-reach forklift often requires the driver to arch his or her back to look up as it works higher shelves, unless the machine, as some do, has a camera for the operator. He described his work as Toyota as an "awesome job". Workers were allowed three break periods per day – not the usual two. 15. The motor vehicle accident on 29 March 2017 involved significant "violence", as it was described by him. Whilst he was stationary in his Subaru motor car at an intersection, the defendant's Nissan Patrol cut a corner and crashed into the front section of his car. Obviously, the Nissan Patrol is a very large type of motor vehicle. The plaintiff described its wheel mounting the bonnet of his Subaru car. He said that he was thrown about in the seat. He felt shaken and shocked, but was worried about his daughter, who was a passenger in his car. The collision occurred at about 5.29am, when he was driving his daughter to a friend's home to drop her off, for that friend to take her to school with their child. His intention had been to continue on from that place to his work at Toyota. He did not work that day. He telephoned the police, telephoned his work, and telephoned his insurer. His legs felt like jelly, he was shaking, and, as he put it, he was "a little bit" sore. 16. The day after the motor vehicle accident, the plaintiff attended work and attended his regular GP, Dr Marcus. At work, he was to perform what he called "export". That work involved a lot of bending to put boxes in a container. He felt pain in his back and was having trouble breathing. He notified the floor supervisor pretty much straight away. He told Dr Marcus that he was struggling to breathe. He was tender to touch at the ribs. The common ground is that, in the motor vehicle accident, the plaintiff suffered rib fractures and injury to his lower lumbar back. Separate consideration of the consequence of fractures to his ribs is not necessary for the purposes of the assessment of damages in this case because the overriding and persistent impairment is the result of the low back injury. The plaintiff's ribs recovered normally. 17. The plaintiff did not recall precisely the day of his return to Toyota. When he did return to Toyota, he was performing light duties. This involved his work being restricted to working with the lighter parts on the mezzanine level. However, his work still involved significant walking and standing for long periods. His back and his legs ached. He would try to "duck off" in order to stretch and relieve some of the ache. He did this by going to the toilet to stretch, or going to places where cameras did not expose activity so he could stretch for relief. 18. The plaintiff attended Dr Marcus six times in the month following the motor vehicle accident. On each of those occasions, the consultation concerned his back injury. He was provided medical certificates for light duties. By 22 April 2017, he was limited in lifting capacity to five kilograms. 19. In May 2017, his first six month renewable contract expired and Toyota agreed to a further six month term renewable contract. This meant that on 21 November 2017, if he was to achieve full time permanent employment with Toyota, the contract would be then offered. Ultimately, he was not offered that permanent position. He conceded in cross‑examination that he cannot say definitely that Toyota would have offered him a permanent position, but he believed that Toyota would have done. As he put it to the cross‑examiner, "You can't say I wouldn't" have been offered the full time job. 20. Mr Fara, the plaintiff's Warehouse Trainer, and Mr Tinker, the plaintiff's Team Leader, being the persons responsible for his assessment toward the prospect of permanent employment, and at a level immediately below the executive level at which the decision of whether or not to offer the plaintiff a contract for permanent employment was offered, both gave evidence that the plaintiff had performed well at work; albeit, after the motor vehicle accident, his performance was noticeably slow, he remained on restricted duties, performing only the light work at the mezzanine level, and his absences increased. Mr Tinker remembered that he recommended to Toyota management that the plaintiff be retained. 21. The plaintiff was told at a separation meeting with Toyota that he had to get his injury "Sorted." During his employment with Toyota, he had been told that he was being trained to work at the new premises being established at Kemps Creek. The plaintiff's Workplace Trainer, Mr Fara, said that the new factory site was to be at Wetherill Park. He confirmed, however, that the plaintiff was one of the persons taken on by Toyota during 2017 with the view to train them for work at the new site, because they lived in better proximity to it than many of Toyota's then current workers. He was a worker who was willing to move to maintain work, whether it was properly described as at the new site of Kemps Creek or Wetherill Park, in order to maintain his employment. 22. It was put to the plaintiff, by reference to a letter written by someone at Toyota to Dr Marcus, dated 10 July 2017, that his employer had concern that his behaviour when he telephoned his supervisor concerning his capacity to work conveyed the impression that he was inebriated or otherwise mentally affected. The plaintiff did not dispute that impression might have been gained. He said that Mersyndol Forte, which he was prescribed for his pain, made him drowsy, and in addition to this he experienced psychological stress. There is, indeed, support for his belief, in Dr Marcus's letter of 28 July 2017 responding to Toyota's inquiry. The letter is dated only two weeks after Toyota's letter. Dr Marcus, at the time, took the plaintiff off Mersyndol Forte, despite noting "worsening back pain." At the time, he was treating the plaintiff for back pain and psychological factors. Consequently, if Toyota took a concerned view of the plaintiff at the time for those reasons, the sequelae and circumstances caused by the motor vehicle accident may have been at least contributing to the impression the plaintiff gave. 23. As I said, the plaintiff case for economic loss is not put on the basis of net earnings, at comparable Toyota workers' remuneration and benefits value from date of injury and into the future. The plaintiff case for economic loss is put on the basis of net earnings at 1 July 2017, approximately the date of injury. The defendant agrees that sum of $807 to be the plaintiff's then net earnings. If the plaintiff's case had been put on the basis of comparable earnings with Toyota workers, then it might have been necessary, in order for the plaintiff to satisfy his s 126 onus of proof, to have shown that the injury, in fact, caused him to have not been retained in the Toyota work permanently. Because the plaintiff's case is not put on that basis, it is not necessary for him to prove that fact. 24. Mr Fara and Mr Tinker could not say why he had not been retained. The plaintiff may well be justified in holding a personal view, subjective as it might be, that he was unsuccessful because of the fact that, for 8 months prior to the separation meeting, and his being unsuccessful, he had been limited to light duties with increased time off, and that due to the impairment he suffered resulting from his injuries, he was observed to be a slower worker than he had been before. As his case is put, the significance of his history of employment with Toyota is that it shows that, but for the interruption resulting from the grief reaction following the death of his father, as at 21 November 2017, the plaintiff continued, as he had done for his whole working life, to attempt to maintain full-time permanent positions of the type of work I have described. 25. A feature which brings clarity to consideration in this case is the regularly kept medical record from the plaintiff's attendances on his treating GP, Dr Marcus. The plaintiff conceded, as is reflected in Dr Marcus' Workcover Certificate records for the period 24 April 2017 to 22 May 2017 – obviously a period of about one month – that Dr Marcus attributed his unfitness for work to arise from psychological causes. A tragic circumstance was reported by the plaintiff to Dr Marcus at his consultation on 24 April 2017. I adopt the courtesy shown by counsel and do not report here the detail of that event. There is no secret about it for the purposes of consideration of the assessment of damages. It appears in Exhibit Q p 66. What is important is that the plaintiff's distress was in regard to the suffering of an immediate family member. The stressor event was of a one-off nature. His distress did not arise out of his personal lifestyle or circumstances. Finally, I would comment that the event was one of such tragedy and nature, that I would expect most reasonable persons to be caused severe distress were it to come into their life. The plaintiff did authorise Dr Marcus to inform his employer, Toyota, of the psychological stressor and its consequences. This is the letter of 28 July 2017, to which I earlier referred. It appears in Exhibit Q pages 256 to 258. 26. Dr Marcus wrote to Toyota referring to the lumbar spine injury and his contact with Toyota's "return‑to‑work co‑ordinator" about Toyota having found suitable duties for the plaintiff while, as it was hoped, his back recovered. The letter reported that, with the ongoing guidance of the plaintiff's physiotherapist, progress was being made with his injury, and the plaintiff was attending work with modified duties. After referring to the time off in relation to the specific tragic family stressor, Dr Marcus wrote to Toyota summarising the position as follows: "Personal and family stressors have likely contributed to a worsening of his back pain and complicating issues further is that his CTP insurance company refused to release funds for physiotherapy for several weeks but we have had confirmation today that they will start paying for his physiotherapy. To help the plaintiff with his back pain, we have tried a variety of medications to help him recover. Some of these medications are likely to cause drowsiness but they have all been ceased now. The plaintiff is just on regular anti‑inflammatories which should not affect his mental state. I reviewed the plaintiff in my rooms today and I am satisfied that his mental health is stable and poses no risk to himself or his colleagues at work." 1. Dr Marcus' letter corroborates drowsiness caused by medication at the time of the Toyota letter (referred to above) mentioning concerns because of the impression gained when the plaintiff was on the phone to his supervisor talking about capacity to work, that he was inebriated. It was not put to the plaintiff that he had or has a substance or alcohol use problem. In his report, Dr Marcus assessed the plaintiff as not fit to drive safely from his home to Toyota because of his back pain. The plaintiff did continue to suffer back pain in the period through which he took stress leave from his work at Toyota. 2. Between 15 May and 29 May 2017, Dr Marcus continued to certify the plaintiff to work with a lifting restriction of 5 kilograms. On 23 May 2017, Dr Marcus recommended the plaintiff try returning to full‑time duties subject to ongoing review. On 2 June 2017, the lifting restriction was increased to 10 kilograms. On 13 June 2017, to 12 kilograms. On 4 October 2018, Dr Marcus recommended lifting capacity to 20 kilograms. I will come to the clinical notes of Dr Marcus in some detail as I must. 3. Exhibit 4 is a schedule in a simple fashion listing certificates specifying work restriction and stating the certificates' recorded cause, such as "Back," or "Illness," or "Psychological." Exhibit 4 does not record the whole of the literature explaining the plaintiff's incapacity. Given the view the defendant has taken in submissions to the plaintiff's past economic loss and future economic loss, it is required that Exhibit Q, objective clinical records, be referred to in order to add to the picture not fully exposed by the limited Exhibit 4. Within that, there are indeed periods where the plaintiff was certified to try normal duties. On the whole of the evidence, it was always on a "See how you go" basis. 4. On the whole of the evidence, the plaintiff has a chronic low lumbar back impairment, and, whereas for him the incapacity is real and ongoing, for another person radiological findings not unlike his may cause, in the circumstances of their suffering, lesser or greater impairment. I accept the plaintiff's description of his impairment: it is corroborated extensively by not just the evidence of Messrs Tinker and Fara of the eight months post‑injury, but by his persistent attempts to regain employment after not being offered full‑time, and permanent employment at Toyota on 21 November 2017. 5. A period of approximately one year between his separation from Toyota and about 8 October 2018 deserves particular comment, and I will come to that. More recently, on 21 February 2020 a medical certificate by Dr Roman limited his lifting recommendation to 15 kilograms. It is not necessary to be precise as to periods between the date of the motor vehicle accident and the present when the plaintiff worked full duties, very restricted duties, or was unfit to work at all. His impairment continued and he worked to his medically advised limitations. He was cross‑examined substantially on the history of medical certificates, mostly those of Dr Marcus, directed to his work capacity from time to time. There are approximately 60 such certificates relied on by the defendant, in Exhibit 4, between 30 March 2017 and the present. They confirm periods away from work due to illness, rather than specifically due to his injuries received in the motor vehicle accident, from time to time. They also identify certificates for unfitness for work, in which the doctor recorded the reason as "Psychological." The plaintiff agreed that relationship problems caused detriment to his functional capacity for a period post‑injury. However, it can be seen from the objective evidence of Exhibit Q, to which I will come, that the plaintiff's repeated answer that psychological factors were only part of the picture, and that, even when he went to the doctor for referral to the psychologist, his global limiting situation involved back pain and was mixed with circumstances where he was not coping whilst in back pain, is borne out by that objective evidence.