Hardy v Eclipse K9 Security Pty Ltd [2024] NSWDC 602

District Court New South Wales

Medium Neutral Citation: Hardy v Eclipse K9 Security Pty Ltd [2024] NSWDC 602 Hearing dates: 3 December 2024 Date of orders: 3 December 2024 Decision date: 03 December 2024 Jurisdiction: Civil Before: Waugh SC DCJ Decision: 1. Judgment for the plaintiff against the defendant in the sum of $460,988.99 2. Defendant is to pay the plaintiff's cost of the proceedings Catchwords: DAMAGES – assessment of damages – personal injury – Companion Animals Act 1998 – no question of principle Legislation Cited: Civil Liability Act 2002 s25 Companion Animals Act 1998 Uniform Civil Procedure Rules 2005 Cases Cited: Emerton v Clerk of the Supreme Court [1992] NSWCA 65 Texts Cited: Nil Category: Principal judgment Parties: Matthew Hardy (Plaintiff) Eclipse K9 Security Pty Ltd (Defendant) Representation: Counsel: Mr N Ghabar (Plaintiff)

Solicitors: Turner Freeman (Plaintiff) No Appearance (Defendant) File Number(s): 2024/63584 Publication restriction: Nil

Judgment EX TEMPORE, REVISED 18 DECEMBER 2024 1. HIS HONOUR: This is a hearing for the assessment of unliquidated damages. The plaintiff, Mr Hardy, obtained a default judgment against the defendant on 12 November 2024 for damages to be assessed because of the defendant's failure to file a defence. 2. Mr Hardy claims damages under s 25 of the Companion Animals Act 1998 for bodily injury caused by a dog wounding or attacking him whilst he was riding his motorcycle along a public road on 4 June 2022. 3. The assessment of damages proceeds by way of a trial and damages are to be assessed in the ordinary way. That follows from Rule 30.1 UCPR and the decision of Emerton v Clerk of the Supreme Court [1992] NSWCA 65. Unless the court otherwise orders, evidence of facts must be given by affidavit: Rule31.4(4)(b) Damages are to be assessed in accordance with the Civil Liability Act 2002. 4. The evidence before me consisted of a court book which included affidavits by Mr Hardy and his wife, various medical reports and documents concerning Mr Hardy's economic loss. I was greatly assisted by the provision a detailed chronology to the court by counsel for the plaintiff and also by a schedule of damages which was included in the court book. I was also greatly assisted by counsel's oral submission and his survey of the evidence. 5. Firstly, the incident. In the statement of claim, Mr Hardy alleged that he was riding a motorcycle along Redmayne Road at Horsley Park when a Rottweiler dog, believed to be known as Bonnie, owned by the defendant as that term is defined under the Companion Animals Act, when the dog, which was standing in front of the defendant's property, ran onto the road and lunged at him and his motorcycle in an attempt to attack him. The dog collided with the motorcycle and Mr Hardy was dismounted from his motorcycle accordingly. 6. In his affidavit, he said, and I quote: "When the dog caught sight of me, the dog exited the driveway of the property where it had been standing and ran at me. The dog made a beeline towards me and it seemed very deliberate and aggressive. The dog ran into me and my bike, causing a collision. As the dog hit me, it knocked me off my bike, causing the bike and myself to fall and slide along the road for a few metres. I landed heavily on my left arm and was thrown onto my right side and slid along. My left elbow and right knee were heavily impacted". 1. The ambulance and police attended the scene of the accident and the ambulance report records that Mr Hardy suffered injuries or described pain and injuries to his left elbow and right knee, along with other matters. He was taken to Liverpool Hospital by ambulance and remained in hospital overnight. 2. When he was assessed by the doctor at the hospital, the doctor recorded in the hospital's notes that there was a probable left elbow fracture and a right knee contaminated laceration. The fracture of the left elbow was confirmed on an X-ray performed at the hospital. The X-ray shows that there was a mildly displaced intra-articular radial head fracture, and there was marked joint effusion. 3. An X-ray was also performed of the right knee. It showed that there was prepatellar soft tissue swelling and soft tissue laceration. It also noted: "Bone fragment noted superficial to the patella could represent small fracture fragments. Moderate joint effusion." 4. As a result of those findings, Mr Hardy underwent surgery the following day, on 5 June 2022, at the hand of Dr Martin Laird, orthopaedic surgeon. Dr Laird performed surgery on the right knee and left elbow. The surgery to the right knee essentially consisted of cleaning out the wound and closing it. The surgery to the left elbow was a little more serious; it required a screw to be inserted in Mr Hardy's elbow in order to repair the fracture, and the screw is still in his elbow to this day. 5. He was discharged from hospital on the day of the surgery. Thereafter, he regularly attended his usual GP, Dr Tin Nguyen, and was reviewed by his surgeon, Dr Laird. An X-ray was performed on 22 July 2022 of his elbow, which showed that there were fracture lines still evident. Another X-ray of the elbow was performed on 30 August 2022; it also showed a fracture line remaining visible. On 30 August, the same day, Mr Hardy was reviewed by Dr Laird for the third time. Dr Laird found that Mr Hardy's range of motion was very close to normal and he was essentially back to all of his normal activities without major symptoms; his X-rays looked good and he could continue gradually returning to normal activities as his symptoms allowed. Dr Laird said he would see Mr Hardy only as required. Thereafter, Mr Hardy continued to be reviewed by his GP. On 1 October 2022, he still had pain at his arm and leg occasionally, according to Dr Nguyen's notes. 6. Whilst going through the chronology, I should note that, in April 2023, at a period of time when the financial future of Mr Hardy and his wife and family was uncertain, they took the decision that Mrs Hardy should enter the workforce. Prior to this, she had not been in paid employment; but I would hasten to add that she was fully occupied and effectively employed in looking after the family - Mr Hardy and their five children, who were born at various times between 1991 and then 2000, 2002, 2004 and 2007. 7. On 18 October 2023, Mr Hardy was reviewed by his GP who noted that he was presenting with pain at his knee; it was painful when walking up and down stairs. Six days later on 24 October 2023, Mr Hardy returned to Dr Nguyen, who recorded: "He complains of pain at his knees when walking up and down the stairs. He avoids using the stairs recently". 8. This is about the time that Mr Hardy had a change in the duties he was undertaking for his employer - and I will say more about that in due course. The next month, he started working in a new role for his employer - and, again, I will say more about that in a moment. 9. On 17 November 2023, Mr Hardy was examined and assessed by Dr Mohammed Assem, a rehabilitation specialist, for the purpose of providing a medicolegal opinion to the court. Amongst other things, Dr Assem said: "The diagnosis includes a left radial head fracture, soft tissue injuries and potential small fracture fragments in the right knee, along with soft tissue injuries to both knees". His current status, Dr Assem records, as follows: "Mr Hardy experiences difficulty in straightening his left elbow, a clicking sensation with certain movements, and residual weakness. He experiences left elbow discomfort when maintaining static positions for long periods. "He has pain and discomfort in the patellofemoral compartment of both knees that fluctuates in intensity. When his symptoms are severe, he ambulates with a limp. He has difficulty standing from a seated position and negotiating steps, slopes or uneven ground. He is unable to squat or crouch. There is no instability or mechanical locking". 1. Upon examination, Dr Assem found that, in relation to the left elbow, Mr Hardy had a seven centimetre healed, longitudinal, surgical scar. The scar was slightly pigmented, and he had some restriction of movement to his elbow range. As to the lower extremities, Dr Assem noted that Mr Hardy had a 4.5 centimetre scar over the right knee and a small scar over his left knee. He had marked, coarse patellofemoral crepitations on the right and mild ones on the left. He had no instability and he had a variable range of motion. 2. When asked to provide a prognosis, Dr Assem said: "His prognosis is fair, as he has managed to adapt to his injuries by securing more sedentary work, which he can satisfactorily manage despite ongoing symptoms and limitations". I will return to more details of Dr Assem's report when I go through the schedule of damages. 3. In January this year, Mr Hardy was also assessed by Karen Chan, an occupational therapist, who provided a home and living skills assessment report. I will return to parts of her report when I go to the schedule of damages. 4. Prior to the accident, Mr Hardy had a long and regular history of employment, with some progression and advancement in his working life. He was born in 1969 in the United Kingdom and came to Australia when he was eight years old. He left school in 1993 and commenced working in a sawmill in Kempsey. 5. In 1995, he moved to Sydney and commenced working in a printing company. In 1999, he completed an apprenticeship as a lithographic printer. In the same year, he married his wife. In 2006, he began working in logistics at Woolworths as a forklift driver. In 2011, he commenced working in logistics with Coca-Cola Amatil as a casual forklift operator working on night shift. He also commenced a diploma in logistics at Wetherill Park TAFE, while working night shift. 6. In 2016, he completed his diploma in logistics and, in about the same year, he was promoted to the position of team leader. Three years later in about 2019, he was promoted again to the position of warehouse manager, which is the position he occupied and the role he was undertaking for Coca-Cola Amatil when he was injured on 4 June 2022. At that time, he was at a monthly income of $6,130.58 or $1,532.65 net per week. The monthly figure was a net figure, net of tax as well. 7. The injuries and disabilities that Mr Hardy sustained in the accident have had an ongoing impact upon his life, which is likely to continue. This is seen from his own evidence and his wife's evidence about before and after the accident. 8. Mr Hardy has given evidence in his affidavit that, before the accident, he was a healthy person. He did not have any diagnosed health conditions that required medication or treatment. Whilst he had some pain here or there in his lower back that he reported to his GP, it did not cause him any ongoing concern. He was not a smoker; he drank alcohol socially. 9. He considered himself to be a relatively active person. Prior to the accident, he would often walk his dog, bike ride with his children, and go to the gym to work out around twice a week. He enjoyed riding his motorcycle three or four times a week, either by himself or with his wife. He enjoyed cleaning his motorcycle, making sure it was in good shape, after almost every ride but at least once a week. 10. Prior to the accident, he enjoyed spending time with his family and being outdoors as much as possible. He and his family used to go camping, bushwalking, and to the beach. Since the accident, he has only been bushwalking once, but was in too much pain afterwards to go again. He has not been to the beach or camping since the accident. 11. Prior to the accident, he used to visit his mother frequently, who lives in Kempsey, and whilst there, he would help her mow the lawn and do odd jobs around her house. She was reliant upon his help with heavy and laborious tasks. 12. Since the accident, he has only been able to visit his mother around six times. Kempsey is a four or five hour drive from his home in Sydney and he struggles to do this drive after the accident. This has made him feel guilty about being unable to help his mother, and affected his mood and sense of wellbeing. 13. Prior to the accident, Mr Hardy used to mow the lawn and do all of the outside work on the house and in the gardens. He was responsible for taking out the garbage, doing maintenance around the house, washing the cars and motorbike, and he would also help his wife with cooking, washing up dishes, cleaning the bathroom, sweeping and mopping. He is not able to do any of these tasks any longer. After the accident, he has not been able to mow the lawns or wash his car. He has also been unable to help his wife with the domestic duties that he used to. 14. A compulsory third party insurer for his motorbike has paid for someone to mow the lawn and do some tree trimming when the accident first happened. But the benefits provided by the compulsory third party insurer were for a limited time. And are no longer being provided. And haven't been provided for quite some time. Mr Hardy gives evidence that there'd been plenty of occasions where the lawn is overgrown and not being mowed because nobody was available to do it. And he says, which I accept, he will need to pay for someone to do it commercially in the future. Given that they have not been in the strongest financial position, he has avoided doing that until now. He says that he will need to pay for regular lawn mowing. Which I accept. He says he pays privately to have his car washed about every few weeks. 15. As for his disabilities, he still has difficulty navigating stairs. There are 14 stairs in their house which leads to the bedroom. And he has difficulty in navigating those. Immediately after the accident for about six months he slept downstairs in the house. And continues to do so occasionally. Taking the stairs requires him to navigate slowly and carefully. He also struggles to get to sleep because it takes a long time to get comfortable owing to his injuries in the knees and left arm. He continues to have pain and aching in his right knee and leg. Pain is constant, can be painful when sitting or standing for too long. He must monitor how far he walks or type of terrain that he walks on. His right knee being his worst than his left. But his left knee will ache when he does too much physical activity. Both knees hurt when he's walking upstairs or the act of sitting or standing. His left elbow and arm often ache. His left elbow is constantly painful. He continues to be unable to straighten his left arm entirely. Although he demonstrated to me in court that he could get it most of the way to being straight. He has reduced strength on his left side. He cannot carry items that are too heavy for long periods of time. And he has the scars that I have mentioned. He says that he now has a constant dull ache in his lower back. Which is unsurprising given the problems with his knees and problems walking. Since the accident he has gained a significant amount of weight. He has always been physically active and particularly outdoors. But his inability to do that since the accident has impacted upon him psychologically. 16. He suffered from his mood being lowered, feeling emotionally drained and so on, and having less patience since the accident. These things have affected the relationship he has with his wife. And their intimacy has significantly reduced since the accident. He used to be social, very sociable and going to frequent gatherings and barbeques. Which is no longer the case. He stays home instead of socialising and has ended up drinking more than he used to. Drinking alcohol, I take it. 17. Mrs Hardy in her affidavit describes how her husband was before the accident. She says that immediately prior to the accident he was very active and independent. He would spend a lot of time outside with her and the family. He enjoyed camping, bushwalking and bike riding. He would ride his motorcycle every chance he got. He had always been very hard working both at his job and around the home. He would take on a lot of physical heavy work around the house, including maintaining the lawns and gardens, doing required maintenance, washing the cars, taking out the rubbish and cleaning the gutters. He had no notable health concerns prior to the accident. Following the accident Mr Hardy had always been the main earner of the home. Mrs Hardy had never anticipated that prior to his retirement that this would not continue to be the case. She and her children relied on his sole income for the entire household. Following the injury her husband's future employment circumstances became unclear and unsteady. They both grew worried for their financial situation. And she obtained a support worker role in April 2023. 18. She has maintained this work since doing 20 to 30 hours per week. She and her husband felt they had no other choice but for her to go and work. Since the accident Mrs Hardy has seen a great deal of change in her husband. She says, "He has become a different person." He has not been able to do the heavy chores and work around the house that I've mentioned. She has seen a shift in his personality after the accident. He become angrier and more frustrated. She observed him having a short temper. He seemed to have less patience with her and the children. And that has significantly affected their relationship and her intimacy with Mr Hardy. She has observed her husband getting teary or crying when he thinks about the accident and how it has affected his life. He always tried to be involved with the family and children as much as possible. But following the accident she has noticed his ability to go out and do things with them has reduced. He becomes emotional and stressed very easily, and she sees that this upsets him and is not how he was prior to the accident. Even though he has returned to work, he still worries that he may not be able to perform his role in the long term - and this makes her and Mr Hardy uneasy for their future in terms of finances. Mrs Hardy feels that the injury has impacted her husband and her and her family greatly. He has worked hard his whole life and enjoyed the outdoors and now that he has permanent restrictions in the activities he does and the hobbies that he used to have, he has become a different person. According to her observations, he is constantly in pain and can no longer do every task himself. It's difficult to watch such an active and motivated person nap every day after work. Not want to go for motorbike rides regularly. Drink more alcohol. And be generally more lethargic in comparison to before the accident. She believes that he has slowly gotten better. But there is no doubt in her mind that things will not ever be the same as they were before the accident. It has had a profound impact on his life and their family life. 19. With that factual background and understanding of the facts I go to the assessment of damages and go through the schedule of damages that was prepared by Mr Hardy's lawyers and included in the court book. 20. The first step is to arrive at an assessment for non-economic loss. This must be done in accordance with s 16 of the Civil Liability Act which requires the court to make a finding about a percentage of a most extreme case. Counsel for Mr Hardy submitted that a substantial award for non-economic loss ought to be allowed at no less than 35% of a most extreme case. This would equate to a sum of $266,500. I come to the precise sums in a moment. The dollar figure for a most extreme case is indexed under the legislation. I am informed by Mr Ghabar (counsel for the plaintiff), and I accept, that the current amount which was indexed recently on 1 October 2024, is $761,500. This is the amount that may be awarded in a most extreme case. 21. Counsel submitted that there were three factors that the court ought to pay particular regard to when considering what an appropriate percentage was, and whether it might be 35% as submitted. The first factor is that there was some significant injury and Mr Hardy has permanent effects from the injury. And I've already surveyed those in the evidence. The second factor is that in Dr Assam's opinion, Mr Hardy's level of suffering has not plateaued because it is likely to become worse over time. 22. Dr Assam says he will continue to require a simple analgesia for his pain. And requires other therapies but he says, "Considering the direct trauma to Mr Hardy's right knee associated with the potential for fracture as indicated by the presence of a bone fragment superficial to the patella and moderate joint fusion, there is a heightened risk of developing post-traumatic osteoarthritis in the affected knee. This condition could lead to progressively worsening pain and stiffness over time. In light of these risks, ongoing orthopaedic consultations are recommended." Then further into his report, Dr Assam says, "Fortunately, he was able to secure a less physically demanding role with the same employers that he is able to manage satisfactorily. However, the impact of his injuries is likely to have lasting effects. It is estimated Mr Hardy's overall working life expectancy may be reduced by approximately five years. This estimation considers the potential long-term consequences of his injuries, such as the risk of developing post-traumatic osteoarthritis in his elbow and right knee, which could lead to increased pain, stiffness, and potentially reduced functional capacity and overall quality of life". Dr Assam also says, "Mr Hardy's injuries will impact on his ability to perform certain activities of daily living, particularly those requiring heavy lifting, extensive reaching or bending, and other activities that strain his injured elbow and knees." 23. Counsel for Mr Hardy submitted that Mr Hardy is 55 years of age at the moment. In later years his physical disabilities are likely to deteriorate. On the life expectancy tables he has, as 55-year-old, another 30 years of life expectancy, which is a significant period for the court to consider the effects of Mr Hardy in relation to non-economic loss. Which is defined in the Act to mean any one or more of the following: pain and suffering, loss of amenities of life, loss of expectation of life, and disfigurement. The third factor that counsel for Mr Hardy impressed upon the court was the changes to Mr Hardy's life since the accident as compared with before, I have gone into those in some detail already. It is not necessary for me to repeat them, but I accept that the changes have been quite significant and are ongoing, and have had a marked effect on Mr Hardy's life and wellbeing, as well as on his wife and family which could only impact more on his own wellbeing, having regard to his longstanding marriage and secure family arrangements. 24. Whilst counsel submitted that the percentage of a most extreme case should be 35%, he submitted that it should at least be in the 30s somewhere. He accepted, however, that it was a matter for the Court, and it was always a matter of impression and degree, and opinions may differ having regard to the same set of facts. 25. In my view, undoubtedly Mr Hardy's injuries and disabilities have had a significant and ongoing effect on his enjoyment of life. He has and continues to experience pain and suffering. He has some disfigurement to his elbow and his knee. His pain and disabilities are likely to continue. Whilst he has experienced changes of mood and attitude to life, he is not undergoing psychological or psychiatric treatment.Having regard to those matters, and all of the evidence about the circumstances in life of Mr Hardy prior to and after the accident, and medical opinion I have referred to, in all the circumstances I assess non-economic loss as 30% of a most extreme case. I have not carried out the mathematical result of that, but someone might do that for me as I continue with the judgment. 26. The plaintiff claims past out-of-pocket expenses in the schedule of damages which is at p 144 of the court book. I allow the sum claimed for payment for expenses paid by the CTP insurer as at 22 November 2024, that is the sum of $11,787.43. I also allow the sum claimed for a Medicare allowance on a buffer basis of $5,000. I therefore allow total past out‑of‑pocket expenses in the amount claimed of $16,787.43. 27. In relation to future out-of-pocket expenses, the schedule of damages includes a list of claimed amounts in precise dollar figures. I allow a lump sum for future out-of-pocket expenses calculated by reference to those figure in the following way. I allow the first item which is for medication to manage musculoskeletal conditions in the sum of $6,120. In relation to the fifth and seventh items, which relate to a buffer for future surgical interventions and ongoing orthopaedic consultations which to date have not been ongoing, and are likely to only need to be reactivated in the future in the event of any further deterioration in Mr Hardy's disabilities, I allow for both of those items a total of $15,000. For ongoing consultations with a general practitioner, I allow a buffer, or sum to add to the buffer, of $10,000, that was item 6 in the schedule. 28. I allow the sum claimed as item 8 which is for initial three months supervised physical conditioning program $1,650 on the recommendation of Ms Karen Chan, and allow annual review by an exercise physiologist or physiotherapist, again on the recommendation of Ms Karen Chan of $6,275. I allow occupational therapy services, again on the recommendation of Ms Chan in the amount claimed of $3,300. The total for future out-of-pocket expenses I allow in the sum of $42,345. 29. The next head of loss claimed is in relation to domestic assistance. There is no claim for past attendant care and domestic assistance. There is a claim for future attendant care and domestic assistance. I am satisfied on the evidence before me which consists of evidence of Mr Hardy and his wife, and Ms Karen Chan that it is appropriate to allow domestic assistance of 2.33 hours per week. In allowing this I accept, which I think I may have already said, I accept Mr Hardy's evidence about obtaining this assistance commercially, and it would be his intention to obtain it commercially in the future, although it has not occurred to date. I have already addressed that evidence, I think. In any event, I allow 2.33 hours per week for the balance of his life expectancy of 30 years. That needs to be discounted by 5% on the 5% tables for present value. I am hopeful someone might do that calculation for me. I allow car washing at 0.25 hours per week, cost of $13 per week ongoing for the same period. 30. Loss of income is claimed for the past, a modest sum for wage loss based on the closed period of incapacity which is certified by certificates provided by the GP, Dr Nguyen, established on the evidence. The sum claimed which I will not detail is set out in the schedule of damages, at the bottom of p 145 and on to p 146 of the court book. I allow the sum claimed which is $14,198. The plaintiff also claims lost super on that sum in the amount of 11%. I allow that. The amount is $1,562. 31. One then comes to future economic loss. Future economic loss is put on the basis set out in the schedule of damages that Mr Hardy suffers a diminution in capacity on the open labour market in accordance with the opinion of Dr Assam. Although he has done his best to return to work, he has had to change roles and work in a role which has significantly less prospect of advancement. The prognosis that Dr Assam provides is for the left elbow and right knee injuries to progressively worsen with time, with a heightened risk of post-traumatic osteoarthritis. That reminds me that I said I would return to what happened about Mr Hardy's work following the accident. 32. As I said earlier, for a number of years he has worked for Coca-Cola Amatil. Since the accident and because of his ongoing disabilities as a result of the accident, Mr Hardy is no longer been able to continue in his previous role as a warehouse manager. Nevertheless, he has been able to retain his employment with Coca-Cola Amatil without an ongoing loss of weekly income because Coca-Cola Amatil has effectively created a new role for him. I quote from his affidavit as follows: 33. "I had difficulty managing in my pre-accident role as a Warehouse Manager because we have two distribution centres on site and I generally walked a minimum of 10,000 steps per day. After the accident, it was too painful to continue doing that. A new role of Systems and Inventory Lead at Coca-Cola was created and available for me to apply for. While there were other applicants for this role, I was chosen. This role requires me to oversee all inbound/outbound goods movements and manage on-site resource planning and warehouse management systems. It is easier than the warehouse manager role because I am not required to use the stairs or walk much. I am however, disadvantaged in this role as the knowledge I am gaining is specific to Coca-Cola. While some of the skills are transferrable, being a Warehouse Manager is a broader job position and learning how to do systems and inventory at Coca-Cola will not necessarily equip me with the knowledge that I can use in an open labour market. If it was not for my injury, I would not have sought out this role as I would have been able to continue in the prior role that I enjoyed and that was better for my career. 34. Had it not been for the accident, I could have worked my way up from Warehouse Manager to a Supply Chain Manager, which is about two grades higher. That would have meant an increase in earnings of about $50,000 per annum. A supply chain manager would be responsible for multiple warehouse and would be a very dynamic role requiring a significant amount of travel. This would have been the next logical progression for my career, had the accident not happened. I do not think that this is likely to occur now given my physical condition." 35. The affidavit evidence I just read is the only evidence before the Court about the possibility of Mr Hardy being able to increase his earnings by moving up through management, either at Coca-Cola or with some other employer. It is difficult to assess in the circumstances the percentage one ought to apply to the loss of a chance to Mr Hardy in obtaining promotion or advancement in employment. On that evidence, and on the evidence generally, particularly the medical evidence and so on, and also in the knowledge that Mr Hardy is now 55 years old, and only two years on from the accident, this is not a very secure state of the evidence for me to be confident that Mr Hardy would have been able to achieve his goals of advancing in his chosen career. Although I accept wholeheartedly the evidence he gives about that. The Court needs to assess in an objective way based on all of the evidence, the chances or likelihood of that happening. 36. I have already quoted Dr Assam's evidence about the likelihood of Mr Hardy finishing work five years earlier than he might have otherwise because of the accident, because of his ongoing disabilities. Counsel for Mr Hardy submits that the Court ought to allow a buffer for future economic loss to allow for the likelihood of retiring five years before normal retirement age of 67, and the submission was that it was more likely than not Mr. Hardy has lost the prospect of becoming a supply chain manager in warehousing work, either with his present employer or any other similar employer, and that his earning capacity has been diminished on both accounts as a result of the accident. The buffer it s suggested ought to be $200,000. I accept that the Court should allow something by way of a buffer or cushion for those two possibilities for the chances of those things occurring and I assess the amount of the buffer at $100,000. 37. So I will just pause giving the judgment there. Has anyone had the opportunity to add those figures up? I know I have just given you the last one. 38. GHABAR: No, I have, your Honour. I think there are two matters. Number 1 is the non‑economic loss at 30% equates to $175,000. 39. HIS HONOUR: So, hang on, 30%, 175,000? 40. GHABAR: That's right, your Honour. 41. HIS HONOUR: 175,000 even, is it? 42. GHABAR: Yes, it is, your Honour. 43. HIS HONOUR: All right. 44. GHABAR: They're rounded to the nearest 500, whether it's up or down. 45. HIS HONOUR: Okay, so past economic loss stays. I'm just looking at your table at the moment. 46. GHABAR: I think the next one is the domestic assistance, the future domestic assistance. 47. HIS HONOUR: Yes. 48. GHABAR: On my calculations, your Honour, 2.33 hours for the domestic assistance equates to 98,866.56 and the figure for car washing, I think your Honour allowed it as a schedule, which is an additional 12,240, so the total figure for future attendant care and domestic assistance is 111,106.56. 49. HIS HONOUR: Okay, and then future economic loss, I've allowed 100,000 instead of 200,000. 50. GHABAR: I'll just do my total calculations. I haven't actually checked that. 51. HIS HONOUR: Future out‑of‑pockets, that changed as well. I'm just looking at the table at the end of your schedule. 52. GHABAR: 42,345, future out‑of‑pockets. The total that we get, your Honour, is $460,999 as a total assessment of all those damages. 53. HIS HONOUR: Right, just let me then check that myself. Yes, I came up with the same figure. I've actually got $460,998.99. Does that sound right, in total? You've just rounded it up, I think. 54. GHABAR: There is 1 cent difference, your Honour. I think it's because this is rounded, the­­ 55. HIS HONOUR: No, that's rounded, okay. So there will be judgment for that amount and then costs - it's the usual order, is it? 56. GHABAR: The ordinary. 57. HIS HONOUR: I think there has been an order made already but I will just say costs of the proceedings. 58. GHABAR: Thank you, your Honour. 59. HIS HONOUR: Okay. For those reasons I make the following orders; 1. Judgment for the plaintiff against the defendant in the sum of $460,998.99; 2. Defendant is to pay the plaintiff's costs of the proceedings. 1. Can the exhibits be returned? Will I make that order? 2. GHABAR: Yes, they can, your Honour. 3. HIS HONOUR: The exhibits may be returned.