New South Wales Supreme Court CITATION : LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY [2000] NSWSC 523 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC No. 11135 of 1990 HEARING DATE(S) : 20.7.99 - 30.7.99; 8.10.99; 19.5.99; 7.6.00; 9.6.00 JUDGMENT DATE : 9 June 2000 PARTIES : KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT OF : Greg James J at 1 COUNSEL : Plaintiff: J. Coombs, QC./W. Washington/P.J. Doherty Defendant: D. Nock, SC./S. Torrington SOLICITORS : Plaintiff: Bond & Bond Defendant: Hunt & Hunt CATCHWORDS : Addendum to judgment of 7 June 2000 DECISION : Verdict for the plaintiff IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No. 11135 of 1990 GREG JAMES, J. FRIDAY 9 JUNE 2000 KEPUELI TAUFUI LOLOMANAIA v. THE ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: On 7 June 2000, I delivered an addendum to the reserved judgment I had already published which was not, as was suggested in one counsel's submission, a provisional judgment. However, the figures contained in that judgment were figures that of necessity had to be reconsidered to update them, in regard to matters relevant to interest, to ensure mathematical correctness and that they corresponded accurately with the findings and submissions. 2 As I expressed in my judgment of 7 June 2000, the expectation was, so I was told at the time, that parties would be able to agree on relevant matters and short minutes would be provided to me. 3 However, two further questions have arisen the, first being which of two tables of life expectancy should be adopted for the purpose of the calculation of damages. I have ruled in favour of the plaintiff as to that. Secondly, as to whether a figure in respect of the plaintiff's past loss of income, expressing the years over which that income was lost was accurate. 4 It has been clarified that latter figure was selected so as to embody not only the loss of income from the time of employment, but the periodic losses of income that had occurred prior to that date. I have ruled in favour of the plaintiff in relation to that also. 5 I have now been provided with an addendum setting out the figures to be included in the judgment and that addendum, it is accepted by both parties, should be included with the judgment I have previously reserved and handed down and the judgment of 7 June 2000. It expresses itself in the language of the original judgment. 6 I have prior to completing the judgment dealt with the question of a stay as sought by the defendant and delivered a judgment in respect thereof. I had reached the point in my judgment where I was referring to the fact that I had published a judgment staying or indicating that I would upon entry stay the execution on the judgment, and at that point I was advised that a further application was to be made for indemnity costs. That application, if it were to proceed, plainly would require some argument and the present is not at all appropriate in the midst of this list, for such an application to be now made and I have directed that if it is to proceed it do so by substantive argument on a filed application. 7 Counsel for the defendant seizing the opportunity promptly sought that the judgment in that case not be entered. 8 I see no reason why it should not be entered for the judgment sum reserving the question of costs. The addendum to which I referred expresses the sums calculated and agreed upon by the parties in the light of my findings in the reserved judgment and in the light of the two rulings to which I have referred. I adopt it and incorporate it as part of my judgment for the judgment sum. I find a verdict for the plaintiff for damages in the sum of $944,357.50 in recognition of the calculations set out in the addendum at paragraphs 127, 128 and 129, and the documents. 9 I reserve the question of costs so what appears in paragraph 130 should be disregarded. 10 The exhibits are to be retained for a period of 28 days. 11 I should add that in accordance with my judgment on the stay I stay the judgment on the terms that I have formerly announced. KEPUELI LOLOMANAIA v. ROADS & TRAFFIC AUTHORITY No.11135 of 1990 This addendum brings up to today's date the figures to be included in the judgment and in addition deals with other matters raised by the parties which have arisen following the preliminary reasons for judgment published on 19 May 2000. OUT OF POCKET EXPENSES 100 These are agreed at $44,219.37 and have been paid by the defendant through its Workers Compensation insurer. PAST ECONOMIC LOSS 101 It is agreed between the parties by reference to the earnings to comparable employees of the defendant that the difference between what the plaintiff has earned and what he would have earned had he continued normal work as a labourer is $223,324.48. 102 It is also agreed that the present net earnings of a comparable employee is $682.88 per week. 103 The defendant contends that the plaintiff ought not recover the whole of the past loss of $223,324.48 for two reasons, the first, relating to the sign incident of February 1987. The second submission by the defendant concerns the effect of the plaintiff's shoulder injury sustained on 11 September 1989. 104 I have already dealt with these matters. 105 In the result the plaintiff is entitled to recover the whole of the agreed figure for past economic loss namely $223,324.48. FOX v. WOOD 106 The workers compensation payments made by the defendant include a portion of taxation on those payments. This figure is agreed in the sum of $15,463.00. This amount should be included in the plaintiff's damages. LOSS OF EARNING CAPACITY 107 The plaintiff will turn 50 in November 2000. 108 He of course still possess the capacity to do clerical work. I take into account that he is 50 years of age, that he has a long history of workers compensation, back pain and now nearly five years of unemployment. Realistically, the chance of him finding suitable employment is slim. But still the chance exists. To take account of that chance and in the context of the plaintiff's background, age and experience, the usual vicissitudes should be increased from 15% to 25%. To that I add a further 5% in respect of the shoulder injury as representing the actuality of occurrence of a matter which otherwise would have been taken into account as a vicissitude. 109 Thus, the assessment of economic loss in the future is as follows: $682.88 per week multiplied at 3% (15.5 years is 648.8) is $443,052.00 less 30% is $310,137.00. GENERAL DAMAGES 110 The plaintiff was aged 35 at the time of his injury. The physical effects upon him have been significant. For 11 years until the time of the surgery carried out by Dr Dan, the plaintiff experienced pain on a daily basis, he was restricted in his normal activities. He underwent a variety of treatments including physiotherapy, injections and manipulations. 111 Despite the apparent success of Dr Dan's surgery the plaintiff remains susceptible to exacerbations, he continues to require analgesia and Valium at night. Since the surgery the plaintiff has experienced numbness in his right leg and some ongoing weakness. There is wasting of the right leg muscles. 112 The plaintiff's discs, above and below the fusion site, are at risk of progressive degenerative changes because of the extra pressure placed on them as a result of the fusion at L4-5. 113 What the plaintiff now experiences will be permanent, with the only change possible being a gradual change for the worse. 114 However, it is not just the physical aspects that attract damages. The plaintiff has lost a considerable part of his self-esteem. Being the eldest child with a Tongan background the ability to work and provide for his family was very important to him. He has become irritable due to pain and impaired sleep, depressed on losing his job. 115 His relationship with his wife has, for some periods, been disrupted sufficiently to force separation. The plaintiff has back pain which he feels impedes the sexual relationship with his wife. While there has been some improvement following surgery, the plaintiff's limitations, loss of pride and unemployment continue. 116 It is noteworthy that these matters have already been with the plaintiff for 13½ years. He has a life expectancy of a further 31 years, a total of 45 years. 117 In the result, general damages should be assessed in the sum of $125,000.00. INTEREST ON PAST GENERAL DAMAGES 118 The plaintiff's injury occurred almost 14 years ago. I ascribe 50% of general damages to the period to date. Thus $62,500.00 times 2% x 13½ is $16,875.00. LOSS OF SUPERANNUATION BENEFITS 119 On 1 July 1992 it became compulsory for employers to pay superannuation contributions on behalf of employers. The plaintiff's loss of these benefits to the present time totals $17,270.00. Currently the plaintiff is losing $85.38 per week in such payments from his employer. Capitalised to age 65 at (multiplier 648.8) at 3% the plaintiff's loss of superannuation benefits in the future is $55,394.00 less 30%, the same discount for future economic loss gives a total of $38,776.00. INTEREST ON PAST SUPERANNUATION LOSSES 120 $17,270.00 at 6% for a period of 7.9 years is $8,186.00. INTEREST ON PAST ECONOMIC LOSS 121 Of the past loss of earnings totalling $223,324.48, the plaintiff has received workers compensation payments totalling $112,540.00 (total payments of $128,003 less tax of $15,463.00). While the period of the plaintiff's loss has totalled almost 13½ years, a majority has been incurred in the period since his termination in late 1994. For the purposes of calculating interest, the chosen rate and period is 6% of $110,784.00 for a period of 7.9 years is $52,512.00. DOMESTIC ASSISTANCE 122 The particulars filed by the plaintiff claim past and future assistance of 5 hours per week housekeeping assistance and 3 hours per week handyman assistance. 123 This was the assessment of Dr Stephen Buckley in his report of 23 November 1998. This assessment is based upon the Van Gervan principle which assumes for the purposes of the exercise that the plaintiff lives and will live alone. While the plaintiff remains more optimistic of his capacity than Dr Buckley there is no contrary opinion. 124 Applying the rates agreed between the parties for the period 18 September 1986 to 30 August 1999, this represents $46,777.00 in domestic assistance plus $33,784.00 in handyman/gardener assistance. Plus allowing for the further 9 months to judgment at $516.00 per month, which produces a total of $85,205.00. INTEREST ON PAST DOMESTIC ASSISTANCE 125 $85,205.00 at 6% for a period of 13.5 years is $69,016.00. 126 The plaintiff has 31.25 years of life remaining. At 3% this represents $95,787.00 in housekeeping assistance and $57,472.00 in handyman assistance, undiscounted. However, the effect of the shoulder injury is not immaterial to this claim and consistently for that reason I apply a discount of 5%, the total being $145,596.00. FUTURE TREATMENT 127 While the results of surgery have been pleasing, the plaintiff requires ongoing medication and medical supervision. With the possible deterioration of the discs either side of the surgical site the future remains cloudy. A general allowance in the vicinity of $10.00 per week seems appropriate. Capitalised at 3% this is $10,798.00 which should be rounded to $10,000.00. SUMMARY OF DAMAGES 1. Out of Pocket Expenses $44,219.37 2. Past Economic Loss $223,324.48 3. Fox v Wood $15,463.00 4. Loss of Earning Capacity $310,137.00 5. General Damages $125,000.00 6. Interest on General Damages $16,875.00 7. Past Superannuation Losses $17,270.00 8. Interest on Past Superannuation $8,186.00 9. Future Superannuation $38,776.00 10. Interest on Past Economic Loss $52,512.00 11. Past Domestic Assistance $85,205.00 12. Interest on Past Domestic Assistance $69,016.00 13. Future Domestic Assistance $145,596.00 14. Future Treatment $10,000.00 ____________ $1,161,579.80 ____________ 128 It is agreed between the parties to take account of the plaintiff's potential entitlements at workers compensation in relation to the shoulder injury that this sum is represented by $45,000.00. This figure must therefore be deducted from the above assessment. This would therefore produce a verdict sum of $1,116,579.80. 129 The defendant through its workers compensation insurer has made payments totalling $172,222.37 and are entitled to have such payments in partial defence of the plaintiff's assessment for damage. Consequentially there will be Judgment in favour of the plaintiff in the sum of $944,357.50. 130 I order the defendant to pay the plaintiff's costs. 131 The Exhibits will be retained for a period of 28 days. Last Modified: 09/26/2000 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.