Antaw v Valks [2023] NSWSC 310

Supreme Court New South Wales

Medium Neutral Citation: Antaw v Valks [2023] NSWSC 310 Hearing dates: 29 March 2023 Date of orders: 30 March 2023 Decision date: 30 March 2023 Jurisdiction: Common Law Before: Elkaim AJ Decision: (1) Verdict and judgment for the plaintiff for $1,037,523.83. (2) The second defendant is to pay the plaintiff's costs of the proceedings. Catchwords: DAMAGES – assessment – where damages awarded on default judgment – Civil Liability Act 2002 (NSW) DAMAGES – assessment of claimed heads of damage – motor bike accident – where plaintiff thrown over motorcycle handlebars and suffers brain damage and chronic pain Legislation Cited: Civil Liability Act 2002 (NSW) s 15, s 16 Motor Accidents Act 1988 (NSW) s 40(1) Category: Principal judgment Parties: Adrian Antaw (Plaintiff) Edward Valks, No Appearance (Second Defendant) Representation: Counsel: Mr R Lynch (Plaintiff) No Appearance (Second Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) No appearance (Second Defendant) File Number(s): 2019/00089301 Publication restriction: Nil

JUDGMENT 1. The plaintiff, Mr Adrian Antaw, commenced proceedings in 2019 against two defendants. The suit arose from injuries suffered by the plaintiff on 4 October 2017. The action against the first defendant was resolved by way of a consent judgment entered on 12 July 2022. I was informed that the resolution did not include the payment of any damages to the plaintiff. 2. On 12 August 2022, default judgment was entered against the second defendant. This defendant has never played any part in the proceedings. The matter has come before me for the assessment of damages. I am satisfied that the second defendant is aware of both the proceedings, and specifically this hearing. 3. The plaintiff relied on his evidentiary statement dated 23 July 2021, together with an assortment of treating and medico-legal reports. He also tendered some economic loss material. 4. The plaintiff has sought damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses and past and future domestic assistance. 5. Although a motor vehicle was involved, the claim does not arise from "the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle", Motor Accidents Act 1988 (NSW) s 40(1). Therefore, the assessment of damages is governed by the Civil Liability Act 2002 (NSW). 6. The plaintiff was born in 1962. When he finished school in 1979, he became an apprentice motor mechanic. He completed his apprenticeship in 1983. Over the next 20 years, he worked as a motor mechanic in different locations. In 2003, he moved to Gunnedah, where he had grown up, and started work as both a motor mechanic and a metal fabricator. 7. In 2010, the plaintiff started working for a local builder as a fabricator/welder. He was still in this employment in 2017 when he was injured. At this time, he was earning between $600 net and $800 net per week. A letter from the employer, North West Home Improvements, states that the plaintiff was employed as a Builders Labourer on a casual basis. 8. The facts behind the injury can be summarised as follows. On 4 October 2017, the plaintiff went to a farm occupied by the second defendant, a friend of the plaintiff, to attend to the maintenance of a motorcycle. He serviced the motorcycle and rode it to test the work that had been performed. Some adjustments were necessary and were subsequently carried out. 9. The plaintiff, not wearing a helmet, commenced another test run. He rode along a dirt road at approximately 20 to 30 kilometres per hour. The back wheel of the motorcycle locked, causing the machine to come to a sudden stop and the plaintiff to be thrown forward, over the handlebars. The plaintiff landed on his head on the road. It transpired that he had ridden over a metal plough disc that had been lying on the road. As he passed over it, the disc rose up and became stuck between the mudguard and the rear wheel of the motorcycle. 10. The disc had been deliberately placed on the road as a ramp for the second defendant's children to use in their cycling adventures. 11. The plaintiff was rendered unconscious. He was taken by ambulance to Tamworth Hospital and then transferred, by air ambulance, to John Hunter Hospital in Newcastle. He remained in a coma until 23 October 2017. The plaintiff was discharged back to Tamworth Hospital after three or four weeks and remained there for a further four weeks. 12. The plaintiff's most significant injury was to his head, no doubt at least partially because he was not wearing a helmet. Dr Harradine, the rehabilitation director at the hospital in Newcastle, stated: "He sustained multiple injuries as a result of this accident including a severe traumatic brain injury and was transferred to John Hunter Hospital where he was treated conservatively. He was then transferred back to Tamworth Base Hospital on the 23/10/17 where he remained in the Rehabilitation Unit and Transitional Living Unit until his discharge on 20/11/17. His CT brain scan showed multiple cerebral contusions and facial fractures. He was quite confused in hospital and remained in post-traumatic amnesia until the 06/11/17. This is a period of over one month which puts him in the most severe category of traumatic brain injury i.e. extremely severe traumatic brain injury with high probability of ongoing cognitive and behavioural impairments. He did make a good physical recovery but does have some ongoing shoulder pain after likely having a right shoulder rotator cuff tear." 1. When Dr Harradine reviewed the plaintiff on 10 July 2018, he found as follows: "On examination today he was alert and cooperative. His mood was reactive. He was fully orientated. He had evidence of slowed information processing, impaired attention and concentration when dual tasking, some initial word finding problems, short term memory impairment was also evident and there was also evidence of some emotional lability. Having said all of this, he is certainly markedly improved from when I recall him in the Rehabilitation Unit…. In summary, Adrian sustained an extremely severe traumatic brain injury as a result of a motorbike accident in October 2017. He has been left with ongoing cognitive, behavioural and functional changes that I believe will be permanent. He is not fit to return to work and I do not believe will ever be fit to return to any meaningful work for which he is previously trained or experienced in and I would recommend that he appeal the decision from Centrelink that he was not eligible for a Disability Support Pension and would be happy to provide evidence of his injury if this is required to support his claim." 1. Consistent with Dr Harradine's suggestions, the plaintiff obtained an NDIS plan in July 2019, and is currently receiving a Disability Support Pension. 2. The fact that the plaintiff was not wearing a helmet is not a matter that I can take into account. The second defendant has not disputed the proceedings and, consequently, has made no allegation of contributory negligence. 3. Most of the medical material relied upon by the plaintiff is out of date. His own statement is almost two years old. The most recent medical report is from Dr Rowe, dated 27 April 2022. There is also a report of a general practitioner, Dr Shabihkhani, dated 2 June 2022. 4. A clinical psychologist, Dr Rowe, conducted a number of neuropsychological tests with the benefit of having comparative tests from his earlier consultation dated 23 March 2020. Dr Rowe concluded that the plaintiff had suffered a Major Neurocognitive Disorder of mild to moderate severity. 5. Dr Rowe said the plaintiff "does require some assistance with some complex instrumental activities of daily living such as organising appointments, reading and understanding paperwork, filling out documentation and remembering to complete tasks". 6. Dr Rowe said the plaintiff was at risk of developing post-traumatic seizures as well as post-traumatic epilepsy. The risk would continue into the future. 7. Dr Rowe felt that the plaintiff was suffering from a post-traumatic stress disorder as well as from a major depression. He said that the plaintiff's chronic pain contributed to the depression. He went on to say that the plaintiff was suffering from a chronic pain disorder. 8. Dr Rowe did not think the plaintiff could work. This was "due to the combination of Mr Antaw's physical, psychiatric and cerebral injuries…". Dr Rowe concluded: "The objective testing which I have administered has confirmed the presence of ongoing cognitive difficulties that in my opinion are consistent with the effects of a severe TBI (traumatic brain injury) which occurred on 4 October 2017. Based on his symptom presentation and functional pre-injury history there does not appear to be any other factors which could account for the significant changes we have seen and measured following the accident and his failure to adequately recover after what was a successful phase of his adult life prior to the injury." 1. The brief report from Dr Shabihkhani states no more than that the plaintiff "has the capacity to understand legal advice and also has the ability to provide instructions". 2. The plaintiff's orthopaedic injuries are described by Dr Bodel, in his report of 29 August 2019. Dr Bodel says the plaintiff "suffered a serious closed head injury, injury to the neck, right and left shoulder and the lower part of the back as a consequence of the event that occurred on 4 October 2017." Unfortunately, Dr Bodel was not provided with any imaging. 3. Like Dr Rowe, Dr Bodel also thought the plaintiff was unfit for paid employment 4. Dr Fearnside did have a report of an x-ray of the plaintiff's lumbar spine, pelvis and left hip, performed on 18 October 2018. No fractures were revealed. The plaintiff's physical injuries, besides that to his head, are probably best described as soft tissue injuries. This does not mean they are not serious. The plaintiff has some residual scarring, but it was not shown to me and it was not suggested to be disfiguring. 5. Dr Fearnside, a neurological surgeon, made a finding of 40% whole person impairment in 2019. This is consistent with Dr Rowe's assessment. 6. The plaintiff, in his evidentiary statement, states that he still suffers chronic pain in his right shoulder as well as lower back pain. He takes pain relief medication every day and has some physiotherapy. He also receives cortisone injections from time to time. 7. So far as the head injury is concerned the plaintiff says that he has "short-term memory loss, speech disturbance and impairment of my thought processes". 8. The plaintiff was 55 years of age when the accident occurred. He was in reasonably steady employment, which he enjoyed, living on his own and coping well with domestic activities. He previously had some minor accidents and had some coronary artery issues, which resulted in the insertion of stents. He was on appropriate medication with no suggestion of a shortened life expectancy. 9. The head injury suffered by the plaintiff has completely changed his life. He has gone from a self-sufficient working man to a person in daily pain, dependent on independent services, unable to work and will be restricted for the remainder of his life. 10. The plaintiff has submitted that non-economic loss should be assessed at 50% of a most extreme case. But for the submission, I would have assessed non-economic loss a little higher, perhaps 55% or 60%. However, in a case in which there are no counter submissions, I do not consider it appropriate to award an amount exceeding that sought by the plaintiff. Accordingly, I will allow non-economic loss at 50% of a most extreme case. Pursuant to s 16 of the Civil Liability Act 2002, this percentage produces a figure of $352,500. 11. As noted above, the plaintiff was employed on a casual basis before his accident. The payroll advice provided by his employer suggests a varying degree of work, sometimes as much as 36 hours a week, other times as little as 8 hours a week. The average gross weekly wage between 7 July 2017 and 16 August 2017, is $588.40. After deducting tax and the Medicare levy, the plaintiff's average net wage was $531 per week. 12. Unfortunately, there is no payroll advice up to the date of the accident. The plaintiff says he was then earning $600 to $800 net per week. The plaintiff has claimed $400 net per week, which I think is a reasonable compromise, having regard to the fluctuations in his past earnings. But for the limit of the claim being made, I would probably have allowed a slightly larger weekly amount. 13. There have been 286 weeks since the accident. The calculation is, therefore 400 x 286 = $114,400. 14. Lost superannuation benefits at 11% are $12,584. 15. For the future, it is clear the plaintiff will not be able to work in paid employment. It has been over five years since the accident, so I will assume his net wage would have increased, although there is some speculation as to what his average hours would have been. The plaintiff has again claimed the reasonable figure of $400 per week. 16. I do, however, disagree with the extent of the claim, namely to age 70. The plaintiff was engaged in heavy work and I think it unlikely he would have continued at the same level of work for another 10 years. He is now almost 61 years of age. I will allow five years at $400 per week. 17. On the 5% tables the calculation is 400 x 231.5 = 92,600. This figure needs to be reduced by 15% for vicissitudes. Future economic loss is therefore $78,710.00. 18. Future lost superannuation benefits, at 14%, are $11,019.40. 19. In relation to gratuitous domestic assistance, the plaintiff must meet the threshold set by s 15(3) of the Civil Liability Act 2002. Specifically, he must have received, or be likely to receive, domestic assistance for six hours a week over a period of not less than six consecutive months. 20. In his evidentiary statement the plaintiff says that after he was discharged from hospital, he stayed in a motel for about a month. During this period his sister, Ms Jennifer Berry, helped him with cooking and washing. He estimated six to eight hours of assistance per week during this period. After leaving the motel the plaintiff stayed with his friend, Mr Colin Burns. Mr Burns helped him with "general tidying, cooking and…washing". He estimated that Mr Burns provided 30 to 45 minutes of assistance per day. This is less than six hours per week. 21. In May 2018, the plaintiff leased a small house in Gunnedah. He says that "I struggle through the domestic tasks on my own, with great difficulty in taking significantly longer to complete such tasks." His sister continued to visit every two to three weeks. She did the vacuuming and tidied up, which would take her about three to four hours on each visit. 22. I note here that the amended statement of particulars dated 1 June 2022, claims that Ms Berry was visiting every second day and providing services of six to eight hours per week. There is no evidentiary statement from Ms Berry and the assertion is contrary to the plaintiff's evidentiary statement. 23. As mentioned above, the plaintiff commenced an NDIS package in July 2019. He receives some domestic assistance under the package. 24. Based on the plaintiff's evidence he has not met the above threshold for domestic assistance thus far. He does say that he would like to have paid services in the future. This is effectively a special damage not falling under s 15 of the Civil Liability Act 2002. Notwithstanding the claim in the amended statement of particulars, there is no evidence to suggest that the plaintiff will be provided with more than six hours of gratuitous assistance per week for six consecutive months in the future. 25. A "Care Report" was prepared by an occupational therapist, Ms Cogger, dated 3 August 2020. Ms Cogger made an estimate of past gratuitous care, which is largely consistent with the plaintiff's evidentiary statement and inconsistent with the amended statement of particulars. Her estimates accord with my conclusion that the plaintiff has not passed the threshold for gratuitous care. 26. Accordingly, the claim for gratuitous domestic assistance has not been established. 27. Ms Cogger also made recommendations for future care. She said the plaintiff requires three hours of support on two days per week. She recommended a support worker, and stated: "The support worker would help with encouraging him to initiate managing domestic tasks. This would include developing a weekly meal schedule with meals that he is interested in and then organising and planning a shopping list. The carer would also be able to provide assistance with the domestic tasks Mr Antaw has difficulty with due to his physical limitations. He should then also be encouraged to continue to contribute to the tasks he can manage in a modified manner. Therefore, the commercial provider should have experience with dealing with people with head injuries and focus on prompting and facilitating his independence, rather than directly doing the tasks for him." (page 112). 1. Ms Cogger said the support worker would also help the plaintiff with attending medical appointments and pursuing leisure activities. She gave a cost estimate of $57 per hour. I note here that the plaintiff, who is currently 60 years of age, has a medium life expectancy of 25 years. 2. In addition to the support worker, Ms Cogger also recommended an exercise physiologist for one hour per week. The physiologist costs $90 per hour. Ms Cogger does not give an estimate for how long the physiologist would be required. I agree with the plaintiff that two years is appropriate. 3. Ms Cogger thought there should be a case manager for three hours per week at $150 per hour. She envisaged the case manager providing services for the remainder of the plaintiff's life. Although there is no contrary opinion, I nevertheless have to find the service to be reasonable. I have no difficulty with a case manager but find the three hours per week to be excessive. The plaintiff will already have a support worker who, based on Ms Cogger's description, (quoted above) will be more than a domestic cleaner. I think one hour per week for the case manager is appropriate. 4. Finally, Ms Cogger suggests occupational therapy, initially for four hours each month for two years, and then six hours every two years. The cost of this therapy is $195 per hour. The weekly cost for the first two years is $180. The weekly cost for six hours every two years is $11.25. 5. On the 5% tables, the calculations for future assistance are as follows: 1. Support worker: 57 x 6 x 753.6 = 257,731.20. 2. Exercise physiologist: 90 x 99.4 = 8,946. 3. Case manager: 150 x 753.6 = 113,040.00. 4. Occupational therapy: (180 x 99.4) + (11.25 x 721.2 x .907) = 25,250.94. The calculation includes a deferral of two years. 1. The total for future assistance is $404,968.14 2. Past medical expenses are claimed in the sum of $53,342.29. This is made up of the Medicare charge of $2,360, the NDIS recovery of $45,982.29 plus a buffer of $5,000. Bearing in mind that the Medicare charge is not up to date, I think the buffer is reasonable and will allow the full amount claimed. 3. For the future, besides the amounts allowed for future assistance, the plaintiff will have general practitioner visits from time to time, medication expenses and probably, based on his history, cortisone injections for his shoulder. Dr Teoh has also recommended some psychological counselling. I think a buffer of $10,000 for future expenses is reasonable. 4. A summary of the damages I have assessed is in this table: Non-economic loss $352,500.00 Past medical expenses $53,342.29 Future medical expenses $10,000.00 Future domestic and care assistance $404,968.14 Past economic loss $114,400.00 Past lost superannuation benefits $12,584.00 Future economic loss $78,710.00 Future lost superannuation benefits $11,019.40 Total $1,037,523.83