New South Wales District Court CITATION: Parker v Lamezia Pty Limited [2009] NSWDC 351 HEARING DATE(S): 3 September 2009 EX TEMPORE JUDGMENT DATE : 3 September 2009 JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ 1. Verdict and judgment for the plaintiff in the sum of $364,875.00 calculated in accordance with the plaintiff's Schedule of Damages marked Exhibit F. DECISION: 2. The defendant is to pay the plaintiff's costs of the proceedings. Having regard to the substantial issues of contributory negligence and loss of income earning capacity I consider it appropriate that Senior Counsel be retained and I so certify. 3. The exhibits are returned CATCHWORDS: Work injury damages following crush injury to dominate right hand - Reduction of capacity to work from 70 to 40 hours per week - Buffer for disadvantage in the open market PARTIES: Robert William Parker (Plaintiff) Lamezia Pty Limited (Defendant) FILE NUMBER(S): 34/09 COUNSEL: I Roberts SC (For the Plaintiff) J Martin (For the Defendant) SOLICITORS: Walsh And Blair Solicitors (For the Plaintiff) Sparke Helmore Lawyers (For the Defendant) JUDGMENT 1 Mr Robert William Parker suffered a serious crush injury to his right hand when it was caught in the roller of an onion sorting and bagging machine operated by Lamezia Pty Limited, his employer. 2 He is left hand dominant. His whole person impairment has been assessed variously at between twenty-nine and thirty-two percent. 3 The issue of liability was not conceded by the defendant but no questions were asked of the plaintiff and no submissions put to the court in argument. The defendant did advise the court that it proposed to argue that the plaintiff had contributed to the injury and some questions were put to him but no evidence was called by the defendant and no submissions were put on the topic in argument. 4 I therefore formally find a breach of the duty of care by the defendant and I make no finding of contributory negligence against the plaintiff. 5 The matter then proceeds to assessment of work injury damages which are limited to the plaintiff's income loss. 6 At the time of his injury the plaintiff was forty-four years old, he is now forty-seven. He lives at Hay. He was educated at Hay to Year 10. He has been engaged from the time he left school exclusively in the rural work. He commenced employment with the defendant in 2005 as a farm hand. 7 The defendant operated at the time of this injury on two properties producing various vegetables and melons with the benefit of irrigation which is dependent upon allocations of water from the Murrumbidgee River. 8 The plaintiff was promoted to a position as leading hand shortly after commencing employment. Prior to his injury he was working 70 hours a week and was paid $17 an hour. He described his work and responsibilities. They covered seven days a week, supervision of five to six permanent employees of the defendant, those numbers increasing to 14 with casuals in busy times. He said the work was physically demanding and very busy. 9 He was provided with a motor vehicle in which to move around the properties and was allowed to have that vehicle at weekends for his personal use. 10 On 2 January 2007 he was instructed by the defendant's principal, Mr Frank Roberto Junior, to work on an onion grading and bagging machine. His task was to remove rotten onions from a conveyor belt and to ensure that the onions did not jam in the machine as they progressed to the grading and bagging area. 11 He described how Mr Roberto instructed him to remove the onions that were caught in the rollers of the conveyor belt by using a flicking motion with his hand. He was wearing a glove to protect his skin against irritation from the onion juices. Whilst performing this work his glove became caught in the rollers and was pulled into the mechanism of the machine up to the knuckle on his wrist. 12 He was taken initially to hospital in Hay and then by air ambulance to Sydney Hospital. He was treated there by Dr Heath, a hand surgeon. He required a number of surgical procedures to treat lacerations and fractures to his right hand. Skin grafts were applied to the dorsum of the hand, the donor site being the right upper arm, and to the skin on his palm. The right little finger was too severely injured to be saved and it was amputated. 13 After a period of prolonged physiotherapy and hand therapy at Sydney Hospital and on return to Hay, he returned to work in April 2007 on light duties working 20 hours a week. In July 2007 he attempted to return to his pre-injury 70 hour week but said he was not able to do it and in August 2007 his hours were reduced to 35 hours a week. 14 Further attempts to increase his hours were unsuccessful. In response to his complaints of increasing pain his general practitioner in early 2008 issued a certificate restricting his hours to 40 per week, being five days of eight hours. 15 There was evidence that for a period in April and May 2008 the plaintiff worked between 40 and 50 hours a week at times. Since then he has worked only 40 hours doing work that he has the capacity to carry out. 16 He described how he managed some tasks virtually one-handed and he described modifications he had made to allow him to carry out some of his pre-injury duties with his damaged right hand. 17 He stated that by the end of the week his right hand was in considerable pain. In addition he suffered pain in his left arm and shoulder which was the result of increased reliance on that limb. He stated that he suffered a degree of exhaustion by the end of the week and that he relied upon the weekend to recover. 18 By way of income loss the plaintiff claimed the difference between his pre-injury and post-injury income which was reflected in the reduction of hours from 70 to 40 per week. He also claimed a lump sum as a buffer to compensate him for his vulnerability in the open labour market if his current employment with the defendant ceased. 19 In respect of the claim based upon the reduction of hours the defendant argued that the plaintiff had an excellent work record and a strong work ethic and that he was well regarded and valued as an employee of the defendant. Reliance was placed upon the period in 2008 when the plaintiff worked up to 50 hours a week. 20 The defendant relied upon a report of the treating surgeon, Dr Heath, of July 2007 in which he stated that the plaintiff would be capable of undertaking almost all of his pre-injury activities. 21 The defendant placed in evidence the report of Dr Silva of March 2008 in which he noted this part of Dr Heath's opinion. This report read: When asked despite the functional capacity assessment and his own surgeon's advice that he could work his pre-injury hours he simply said that he could not and if he was requested to do so he would resign. 22 Dr Heath said nothing in his report about the plaintiff's capacity to work is pre-injury hours. It was on the basis of the plaintiff's insistence that he could not work more than 40 hours and his interpretation of Dr Heath's report that he could work his pre-injury hours that Doctor Silva considered the plaintiff's attitude to be "dog in a manger", and to demonstrate unwillingness to work. 23 Dr Silva was in the minority. The general practitioner responsible for the plaintiff's care since his discharge from Sydney Hospital accepted his symptoms and certified him as fit to work for 40 hours. 24 An occupational therapist, to whom the plaintiff was referred by the defendant in October 2007 stated that he was unable to return to his pre-injury duties and raised the alert concerning the potential strain on his left upper limb. 25 Dr Meares in September 2007 described the plaintiff as unfit for his pre-injury duties. He was impressed by the plaintiff's desire to continue working and hopeful that at some stage his capacity would improve. However, in February 2009 Dr Meares, after re-examining the plaintiff said that he was not fit and he was unlikely to be fit for any pre-injury duties at any time in the future. 26 Dr Honner, hand surgeon, in October 2007 expressed the view that the plaintiff would never be able to return to his pre-injury duties. 27 On the basis of these reports I regarded it as a credit to the plaintiff that he continued to put in forty hours a week. I did not accept that he has a greater capacity than this. Indeed the risk is that his capacity will reduce. 28 It was argued that it was improbable that he would have continued to work seventy hours a week until the age of 65. However, the evidence was that he was fit and strong. He suffered from a facial tumour some years ago that has been treated and there is no evidence of recurrence of the cancer. 29 All evidence pointed to a man with a strong work ethic who, prior to the injury, enjoyed his work and his status as a leading hand and, as pointed out by the defendant's counsel, was trusted and valued as an employee of the defendant. 30 In my view it was highly probable that he would have continued, but for the injury, to work to age 65 for 70 hours a week. 31 I have therefore assessed that part of his claim at the difference between his pre and post injury income for 18 years to the age of 65. 32 In respect of the proposed buffer the defendant pointed to the plaintiff's evidence that Mr Roberto Junior told him that his job was safe. However, there were a number of features of the evidence that suggested elements that could put him at risk. There was a souring of his relationship with Mr Roberto. The vehicle has been withdrawn from him at weekends. He no longer enjoys the morning smoko in the company of Mr Roberto but is required to take that break with the other employees. He is not apparently seeing eye-to-eye with Mr Roberto. 33 There was evidence that water allocations to the defendant's business have been reduced and are currently at about 55%. There was evidence concerning the exigencies of rural industries generally. 34 Further, Mr Roberto was not called to confirm the reassurance that it was said that he had given to the plaintiff. 35 It was further argued that the plaintiff was known and respected in the Hay area and was likely to gain other work. There was some merit in this argument that is reflected in my assessment of the buffer to be allowed. 36 Having regard to the evidence I was satisfied that the plaintiff could not be entirely secure that his current employment will continue to the age of 65. I was satisfied further that if his employment was terminated he would be at a considerable disadvantage in finding alternative employment. Taking into account the respect with which he is regarded and there being some prospect that he could gain employment in the Hay area, I remained of the view that it was reasonable to award him the claim of one-third of his potential income loss to guard against the risk that he does not continue in employment with the defendant. 37 The orders that I make are as follows: 1. There will be verdict in judgment for the plaintiff in the sum of $364,875 calculated in accordance with the schedule marked as Exhibit F. 2. The defendant is to pay the plaintiff's costs of the proceedings. Having regard to the substantial issues of contributory negligence and loss of income earning capacity I consider it appropriate that Senior Counsel be retained and I so certify. 3. The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.