New South Wales District Court CITATION: Duncombe v Riverina Meat Processors Pty Ltd [2009] NSWDC 272 HEARING DATE(S): 15 October 2009 JUDGMENT DATE: 20 October 2009 JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict and judgment for the plaintiff in the sum of $718,934; 2. Defendant to pay the plaintiff's costs. CATCHWORDS: TORTS – negligence – work place injury – plaintiff suffered back injury whilst working on the production line in the boning room of an abattoir – default judgment entered - DAMAGES – assessment of multiple heads of damage LEGISLATION CITED: Workers' Compensation Act 1987 CASES CITED: State of New South Wales v Moss [2000] NSWCA 133 PARTIES: Sharon Louise Duncombe (Plaintiff) Riverina Meat Processors Pty Ltd (Defendant) FILE NUMBER(S): 1969 of 2008 COUNSEL: Ms E Beilby (Plaintiff) No appearance for defendant SOLICITORS: Stacks/Goudkamp (Plaintiff) No appearance for defendant JUDGMENT Nature of case 1. The plaintiff sustained a significant back injury in the course of her employment with Riverina Meat Processors Pty Ltd. The injury occurred between 12 May 2005 and 4 June 2005 as a result of the plaintiff being required to perform heavy and repetitive manual work, handling large items of packaged meat at the defendant's abattoir and meat packing plant. The plaintiff has obtained default judgment and the case proceeded to an assessment of her entitlement to damages. Assessed heads of damage 2. A total of ten claimed heads of damage required assessment. These are listed below together with paragraph references: Head of Damage Paragraphs (a) Non economic loss [12] (b) Past loss of earnings [13] - [14] (c) Future loss of earning capacity [15] - [16] (d) Fox v Wood [17] (e) Past loss of superannuation benefits [18] (f) Future loss of superannuation benefits [19] (g) Past domestic care [20] (h) Future domestic care [21] (i) Future treatment [22] (j) Past out-of-pocket expenses [23] Summary of findings on credit and damages 4. I accept the plaintiff's evidence on all of the matters that were touched upon in her evidence. On a consideration of the evidence I have assessed the plaintiff's entitlement to damages in the sum of $718,934. Facts The plaintiff 3. The plaintiff was born in 1969. She left school at age 16 and shortly afterwards she commenced training as an enrolled nurse. She continued to work as an enrolled nurse for some 13 years, mainly in the area of mental health. In 2003 she decided to take a break from working as an enrolled nurse as she had some emotional and family problems of her own. At that time her children were aged 14, 10 and 6 years. On 12 May 2005 she took up a position with the defendant as an abattoir boning room packer. The plaintiff only intended that this lesser paid employment be temporary. Her ultimate intention was to resume her career in nursing. 4. The plaintiff had a prior history of longstanding psychological problems including depression. She also had a tendency to alcohol dependency. She has had hypertension since childhood. She had been in receipt of treatment for these problems from time to time. Apart from those problems she was in reasonably good physical health. In 1990, whilst working as an enrolled nurse, she sustained a strain to her lower back. The effect of that injury was only temporary and left no lasting disabilities. At the time of her injury in the employ of the defendant she had no problems concerning her back. Circumstances of injury 5. Between 12 and 14 May 2005 the plaintiff was allocated to perform very heavy lifting, bending, twisting and carrying duties on a meat-packing production line at the defendant's abattoir. In the course of carrying out those duties over several days, and as a result of being required to handle heavy items at a fast pace, she sustained a severe straining injury to her lower back. Her initial symptoms were acute back pain. Treatment and subsequent course 6. Initially, the plaintiff pursued a regime of rest in the hope of ameliorating effects of a back injury. Ultimately, radiological investigations were undertaken. A CT scan revealed the plaintiff to have a slight disc bulge at the level L 4/5 and a broad-based disc bulge at the level L5/S1 slightly indenting into the left sided S1 nerve root. Later, MR imaging revealed long-standing degenerative lumbar spondylitis. Medical opinion was that the plaintiff's work injury had aggravated this underlying condition which had been asymptomatic beforehand. The clinical records that were tendered showed that the plaintiff has had a number of post-injury hospital admissions for back pain and anxiety related problems. She has undertaken physiotherapy without benefit. She consulted an orthopaedic surgeon at the behest of the workers' compensation insurer. He noted that there was no practical rehabilitation program available for the plaintiff in her area and that it was impractical for her to undertake driving for long distances in the hope of getting some possible benefit from rehabilitation. In these circumstances I consider that the plaintiff has taken reasonable steps to try and mitigate the effects of her injuries. Medical assessments 7. The medical reports and allied assessments were tendered as Exhibit "A". These reports included assessments carried out at the request of the worker's compensation insurer. These indicate that the plaintiff is highly unlikely to be able to return to her pre-injury heavy work duties or indeed any heavy work that involves prolonged and sustained physical strength, dexterity and exertion. This also extends to work involving prolonged sitting and standing. An occupational therapy assessment demonstrates that the plaintiff is unable to manage the heavier aspects of housework and domestic activities and that she has required and will require assistance in this regard. The psychiatric evidence shows that the plaintiff has had and will probably continue to have exacerbations of her history of low mood and anxiety, some of which are influenced by her reaction to her pain, her inactivity and her reduced employment prospects, which are all consequent upon her injuries. Disabilities and work restrictions 8. The plaintiff has been left with fairly constant low back pain. This has led to a reduction in her level of activity and this has in turn caused her to gain a considerable amount of weight which affects her symptoms. He pre-injury problems with depression and alcohol have been exacerbated. Her treating psychiatrist has recorded one instance where the plaintiff attempted self-harm. She requires regular contact with a variety of health care professionals to manage the after-effects of her injuries. The potential for the plaintiff to obtain, gain and sustain remunerative employment must be regarded as being somewhat bleak. 9. Currently, the plaintiff continues to have considerable ongoing restrictions with her lower back associated with significant pain, discomfort and restriction of movement. She has difficulty sitting and standing for prolonged periods. Her back pain radiates into her legs and occasionally into her ankles. It is constant. Her pain has caused her an exacerbation of her pre-injury psychological problems, increasing her dependency on alcohol for stress relief. With the support of her fiancé, friends and family she is presently enrolled in a recovery programme for alcoholics and plans to remain free of her alcohol dependency, as has been the case for the previous month. The lasting physical effects of her back injury have significantly limited her capacity to work in a wide range of occupations. Similarly, she is precluded from participating in a wide range of physical activities on account of her ongoing back problems. Life span 10. At the age of almost 40, on the prospective or projected life tables, the plaintiff's future losses require assessment over a potential future life span of 48 remaining years. Assessment of Damages 11. In the paragraphs that follow I assess the plaintiff's entitlement to damages. Non-economic loss 12. The plaintiff's back injury has had a significant adverse effect on her amenity and enjoyment of life. I consider that the plaintiff's injuries call for a significant award of damages for non-economic loss to compensate her for the pain and suffering and the loss of the amenity of her life that she has endured and will continue permanently to endure. I assess the plaintiff's entitlement to damages for non-economic loss in the amount submitted by her counsel, namely 35 per cent of a most extreme, which is the equivalent of $157,500. Past loss of earnings 13. The plaintiff makes a claim for past loss of earnings in the sum of $119,045. The claim comprises two periods of loss of income calculated at different rates. In respect of the first period, between 4 June 2004 and 30 June 2008 the plaintiff claims lost earnings at the rate of $357.33 per week, which, with CPI increases amounts to $58,445. That component of the claim assumes she would have remained in the menial employment in which she sustained her injury. In respect of the second period, the claim is based on the assumption that by 1 July 2008 and then continuing, the plaintiff would have returned to work as an enrolled nurse or alternatively, as a medical receptionist, in either case deriving earnings of the order of $800 per week net. This amounts to an amount of $53,600. The plaintiff claims the total of these two components in the amount of $112,045. 14. Whilst I consider that the foregoing approach to assessment is a reasonable one, I also consider that the plaintiff's work history and pre-injury psychological problems requires that a discount be applied to that calculation to take into account the potential impact of past adverse vicissitudes that in my view would have affected the continuity of her employment. In this regard I assess the appropriate discount to be 20 per cent. In applying that discount I have also taken into account the plaintiff's mitigatory earnings in the amount of $5000 in respect of work she has attempted to carry out since her injury but which she has been unable to sustain by reason of her disabilities. I therefore assess the plaintiff's claim for past loss of earnings in the amount of $89,636. Future loss of earning capacity 15. The plaintiff submits that she is permanently unfit to resume her employment as an enrolled nurse. She also submits that she is unable to resume her pre-injury employment as a meat worker or indeed any other job for which she is qualified. In making those submissions the plaintiff points to the sum of $800 per week net as the measure of her future potential earning capacity. Notwithstanding that measure, the plaintiff has very fairly conceded that with time and appropriate treatment, she will probably have an emergent residual earning capacity of the order of 60 per cent. The plaintiff therefore claims the loss of 40 per cent of the potential earnings of $800 per week net, namely $480 per week net and projected over 28 years until age 67 years subject to a discount of 15 per cent on account of potential adverse vicissitudes. 16. I accept that the sum of $480 per week net projected to age 65 years represents a fair, reasonable and proper assessment of the plaintiff's future loss of earning capacity. Having regard to the plaintiff's pre-injury psychological health, I do not consider a discount of 15 per cent to allow for adverse vicissitudes to be a sufficient allowance in this case. Having regard to the plaintiff's prior history of psychological problems, I consider an appropriate discount to be 25 per cent on account of such factors. Accordingly, the projection of $480 per week net over 28 years (x 796.6) less 15 per cent yields the sum of $286,776. I therefore assess the plaintiff's claim for past loss of earnings in the amount of $286,776. Fox v Wood 17. The plaintiff had tax deducted from weekly payments of compensation made to her under the Workers' Compensation Act 1987. These deductions amounted to $7125. I therefore assess the plaintiff's claim for past loss of earnings in the amount of $7125. Past loss of superannuation benefits 18. The conventional approach to the assessment of past lost superannuation benefits is to calculate that loss as being 11 per cent of the sum calculated for net lost earnings, which in this case, is $89,636. This yields the amount of $9859. I therefore assess the plaintiff's claim for past loss of superannuation benefits in the amount of $9859. Future loss of superannuation benefits 19. Applying the same conventional approach to the calculation of the lost value of future superannuation benefits, 11 per cent of the assessed loss of future earning capacity in the sum of $287,776 this yields the sum of $31,545. I therefore assess the plaintiff's claim for future loss of superannuation benefits in the amount of $31,545. Past domestic care 20. I accept that in the period 14 May 2005 until about 30 June 2006 the plaintiff required and received gratuitously provided domestic care and assistance to the extent of 21 hours per week. I accept that in the period between 1 July 2006 and 30 June 2008 the plaintiff required and received the same kind of assistance but at the reduced level of 1 hour per day or 7 hours per week. I also accept that in the period from 1 July 2008 until the time of the hearing the plaintiff required and received similar assistance for an average of two hours per week. The plaintiff makes no claim in respect of the third period because the statutory threshold has not been satisfied. In respect of the first two periods she makes a claim for the value of these services at the prescribed rate. I accept that claim as being reasonable and necessarily consequent upon the effects of her injury under consideration. The plaintiff claims $45,000 as the value of these services. The annexed Table 1 sets out the prescribed rates and calculates the value of these services to be $41,595 which I round down to $40,000. I therefore assess the plaintiff's damages for the value of past domestic assistance in the claimed amount of $40,000. Future domestic care 21. The plaintiff makes a claim for the cost of two hours per week of domestic assistance at $30 per hour. I am satisfied that the plaintiff's injuries have given rise to the need for such assistance on an ongoing basis and I am satisfied that were it not for her injury, the plaintiff would not have been in need of these services. I consider that it is reasonable that this claim be assessed on the 5 per cent tables over the remainder of the plaintiffs projected life span of 48 years (x 966.6) at $60 per week. This yields the amount of $57,996. I therefore assess the plaintiff's claim for future domestic care in the amount of $57,996. Future treatment 22. The plaintiff makes a claim for the ongoing cost of future treatment expenses. The plaintiff submitted that her need for future treatment and other expenses would be reasonably accommodated by the allowance of $1950 for future counselling, the provision of $450 for the assistance of an exercise physiologist, an allowance of $1200 for ergonomic assessments, an allowance of $1000 for future medication, an allowance of 14 consultations per annum with her family doctor in the amount of $4700, an allowance of $2000 for future physiotherapy expenses and an allowance of $5000 for future pain management treatment. These items total $16,300. The evidence in support of this claim is not precise but it nevertheless requires that an assessment be made : State of New South Wales v Moss [2000] NSWCA 133. I consider that all of these claims are reasonable and I therefore assess the plaintiff's damages for future treatment and related out-of-pocket expenses in the sum of $16,300. Past out-of-pocket expenses 23. The plaintiff's claim for her out-of-pocket expenses comprises the amount paid by the Health Insurance Commission, which is repayable in the amount of $1,935.95 and the amount repayable to the worker's compensation insurer in the amount of $20,261.80. Rounded off these amounts total $22,197. I therefore assess the plaintiff's claim for past loss of earnings in the amount of $22,197. Summary of damages assessment 24. My assessment of the Plaintiff's damages is summarised as follows: (a) Non economic loss $157,500 (b) Past loss of earnings $89,636 (c) Future loss of earning capacity $286,776 (d) Fox v Wood $7,125 (e) Past loss of superannuation benefits $9,859 (f) Future loss of superannuation benefits $31,545 (g) Past domestic care $40,000 (h) Future domestic care $57,996 (i) Future treatment $16,300 (j) Past out-of-pocket expenses $22,197 Total $718,934 Disposition 25. I find that the plaintiff is entitled to damages against the defendant assessed in the sum of $718,934. Orders 26. I make the following orders: (a) Verdict and judgment for the plaintiff in the sum of $718,934; (b) The defendant to pay the plaintiff's costs; (c) The exhibits may be returned; (d) Liberty to apply on 7 days notice if further orders are required. TABLE 1 WEEKLY HOURLY HOURS PERIOD WEEKS s.128(4) s.128(4) PER WEEK AMOUNT RATE RATE 1. 15.05.2005 to 20.05.2005 00.71 $836.10 $20.90 21 $311.61 2. 21.05.2005 to 19.08.2005 12.85 $862.70 $21.56 21 $5,817.96 3. 20.08.2005 to 18.11.2005 12.85 $863.80 $21.59 21 $5,826.06 4. 19.11.2005 to 17.02.2006 12.85 $867.00 $21.67 21 $5,847.64 5. 18.02.2006 to 19.05.2006 12.85 $856.30 $21.40 21 $5,774.79 6. 20.05.2006 to 30.06.2006 05.85 $872.20 $21.80 21 $2,678.13 7. 01.07.2006 to 18.08.2006 00.70 $872.20 $21.80 7 $106.82 8. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 7 $1,977.10 9. 18.11.2006 to 17.02.2007 13.00 $903.40 $22.58 7 $2,054.78 10. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 7 $2,013.39 11. 19.05.2007 to 17.08.2007 12.85 $916.20 $22.90 7 $2,059.85 12. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 7 $2,051.75 13. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 7 $2,069.74 14. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 7 $2,011.61 15. 17.05.2008 to 30.06.2008 06.28 $904.70 $22.61 7 $993.93 $41,595.16 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.