New South Wales Supreme Court CITATION : Trajkovski v Ken's Painting & Decorating Services Pty Limited & anor [2002] NSWSC 568 revised - 13/03/2003 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20107/00 HEARING DATE(S) : 4 February - 1 March 2002, 27 June & 11 September 2002 JUDGMENT DATE : 11 September 2002 Jordan Trajkovski (Plaintiff) PARTIES : Ken's Painting & Decorating Services Pty Limited (1st Defendant) National Hire Pty Limited (2nd Defendant) Lynden Constructions Pty Limited (Cross-Defendant) JUDGMENT OF : Dunford J C Evatt / M Rollinson (Plaintiff) COUNSEL : L King SC / M Jenkins (1st Defendant) W Fitzsimmons / J Ryan (2nd Defendant) R Cavanagh (Cross-Defendant) Carters Law Firm (Plaintiff) SOLICITORS : William K Chambers (1st Defendant) Moray & Agnew (2nd Defendant) Henry Davis York (Cross-Defendant) CATCHWORDS : Assessment of damages for personal injury. LEGISLATION CITED : Workers Compensation Act 1987, Part 5, ss 151B, 151K, 151Z Compensation to Relatives Act 1897 State Rail Authority of NSW v Weigold (1991) NSWLR 500 Grey v Simpson (unreported - Court of Appeal - 3 April 1978) CASES CITED : Giorginis v Kastrati (1988) 49 SASR 339 McIntosh v Williams [1976] 2 NSWLR 237 Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352, 50 NSWLR 388 Van Gerwan v Fenton (1992) 175 CLR 327 DECISION : See para 73. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Dunford J 11 SEPTEMBER 2002 20107/00 Jordan Trajkovski v Ken's Painting & Decorating Services Pty Limited & ors JUDGMENT 1 His Honour: In these proceedings, the plaintiff, Jordan Trajkovski, claims damages for personal injuries allegedly suffered by him on 6 December 1996 when the elevated work platform or scissor lift on which he was working rolled over causing him to fall to the ground outside 55 Bridge Road, Glebe. 2 He originally only sued his employer, Ken's Painting & Decorating Services Pty Limited, but by an Amended Statement of Claim filed in court on 27 February 2002 pursuant to leave, he also joined as defendant the company from whom the lift had been hired, National Hire Pty Limited. There are also a number of cross-claims between the various defendants, which it is not necessary to detail at this stage. 3 The proceedings were heard together with a similar claim against the same defendants by Acko Dimkovski (no. 20013 of 1998) who was working with the plaintiff on the elevated work platform when it fell and was also seriously injured. Initially liability by the various defendants to the plaintiffs and to each other was disputed as well as damages; but ultimately on the 20th day of the hearing (1 March 2002), Mr Dimkovski's case was settled and liability was admitted in respect of the plaintiff, leaving only the assessment of his damages outstanding. 4 Because the plaintiff's damages against his employer fall to be assessed in accordance with Part 5, Workers Compensation Act 1987 ("WC Act"), and those against the other defendants on common law principles, it is necessary for two separate assessments to be made. It has been agreed that the apportionment of liability should be 40% against the employer and 60% against the common law defendant, but I have not to date been informed of any agreed apportionment between the two common law defendants. FACTS 5 The plaintiff was born in Macedonia on 1 June 1953. He was 43 years old at the time of the accident and is 49 now. He married in 1971 and he and his wife have two daughters now aged 27 and 20. He left Macedonia in 1992 to come to Australia and has been resident here on a temporary entry visa ever since, although he has applied for permanent residency. His wife followed him a year later. 6 Since his arrival in this country he has worked as a painter in partnership with his brothers under the business name 'Ideal Painting Services' and at other times he has worked as an employee or subcontractor for the first defendant. He said that in the 3 years before the accident he spent a lot of time working for the first defendant and in particular worked for the company for most of 1996 up until the time of the accident. 7 At the time of the accident he was in good health. He had been involved in a motorbike accident in Macedonia in about 1969 in which he hurt his shoulder. There was some issue at the trial as to whether he also suffered brain damage in this accident and I shall come back to this aspect shortly. 8 Following his fall, the plaintiff was taken by ambulance to the Emergency Department of Royal Prince Alfred Hospital where x-rays and CT scans revealed a wedge fracture of the 1st lumbar vertebra and burst fractures of the 3rd and 4th lumbar vertebrae. A chest x-ray revealed fractures of the 7th to 9th ribs on the right side and he also suffered several avulsion fractures of the left talus. He was treated with bed rest and analgesia, a Boston Brace was fitted and he was discharged from hospital on 19 December 1996. He continued wearing the brace for a few months and commenced physiotherapy and hydrotherapy. Initially his condition improved but after about 6 months it appears to have deteriorated. 9 There have also been a number of other injuries and conditions alleged which require particular consideration including organic brain damage, headaches both frontal and occipital, neck pain, and psychiatric symptoms such as change of personality, depression, anxiety, loss of cognition, loss of memory and addiction to prescription drugs. The complaints of neck pain and occipital headaches only appear to date from his visit to Dr Mahony in December 1997 and so I have disregarded them as being related to the accident. 10 The plaintiff was able to give the Court a detailed account of the fall off the elevated lift platform and the events leading up to it. He was also able to give similar detailed accounts to a number of doctors, including Drs Patrick, Ditton, Hordern, Terenty, Walker and Maguire and to Mr Rawling. 11 The plaintiff said that after the fall he saw people around him and heard the ambulance arrive but claims he lost consciousness after that until after he was in hospital; and his wife and daughters claim that when they saw him at the hospital later that day he was unconscious and they were unable to speak to him until the third day after the accident. However, the ambulance records show that when tested at the scene by reference to the Glasgow Coma Scale (GCS) on three occasions between 11.40 and 11.58am he recorded a maximum score of 15 on each occasion. 12 The hospital admission notes record him as responding to questions by a friend, oriented as to time and place and, although there is one entry showing a finding of + or - 8 out of 15 on the GCS (with limited English noted), the other readings are 14/15 (with friend to interpret) at 12.00, 12.30, 1.00 and 2pm. From 3pm, when his daughter is noted as interpreting; his score was 15 and it remained so thereafter. These readings, except for the aberrant and unexplained +/- 8 are inconsistent with unconsciousness and strongly indicate no traumatic brain injury. 13 In addition there is only one reference in the hospital notes to headaches, namely on 8 December when the plaintiff was treated with analgesic. Having regard to the report of 26 January 1998 from Dr Oreb, the plaintiff's general practitioner and the doctor's patient records (Ex. X6) it seems that the first complaint of headaches to that doctor was on 17 March 1998 (some 15 months after the accident) and to Dr Kecmanovic, his treating psychiatrist, in September 1997 (Ex. X5), and when seen by Dr Patrick on 27 August 1997 he described the headaches as "recent". 14 Drs Walker, Terenty and Ditton and the psychologists Mr Rawling and Dr Roldan, were of the opinion that the plaintiff had not suffered brain damage as a result of his fall. Amongst the matters they relied on were their examinations of the plaintiff, the GCS readings referred to above, the fact that the plaintiff was able to give a detailed account of events leading up to the accident and that the gradual deterioration of cognitive function as described by the plaintiff is not consistent with brain injury (see Dr Terenty's report of 25 August 1999 at p 3 and report of the Westmead Brain Injury Rehabilitation Programme of 19 May 2000). 15 Dr Milder and Mr W John Taylor expressed a contrary opinion but I found each of them an unsatisfactory witness. Dr Milder appeared to proceed on the assumption that the plaintiff did suffer brain damage and set out to justify that assumption, and he was also selective in his evidence relating to the MRI scan, referring in his report to parts of it which tended to support the diagnosis of brain injury, but ignoring those findings which were to the contrary: see transcript at 419-20. 16 I also considered a number of his answers lacked frankness e.g. on a number of occasions when asked questions by reference to probability or likelihood he gave answers such as "not necessarily", and I found his refusal to concede that detoxification would reduce the plaintiff's symptoms unconvincing. 17 I also reject the findings of Mr Taylor, psychologist, for the reasons given by Dr Roldan and Mr Rawling; and also because at about the same time as he was writing a report for the purpose of these proceedings i.e. report of 19 November 1998, saying that no improvement could be expected in the plaintiff's condition, he was writing another report (Ex. TQ) for the purposes of the plaintiff's defence of domestic violence proceedings brought by his wife saying that with counselling, his behaviour could be improved. I also accept Dr Roldan's criticism of Mr Taylor's use of the HRNEs scaling, a matter on which no explanation or response from Mr Taylor was attempted. 18 For these reasons I prefer to accept the opinions of Dr Walker (whom I found impressive and fair in his answers) and Dr Terenty whose evidence was not challenged, and I am not satisfied that the plaintiff suffered organic brain damage as a result of the accident, and another explanation must be found for his loss of memory, loss of cognition, loss of concentration, change of personality, Parkinsonian type symptoms in gait and movement, a position which ultimately Mr Evatt appeared to concede (transcript of 1 March 2002 at p 100). 19 There is one further finding that I should record. I find it more probable than not that the plaintiff was rendered unconscious and suffered some brain damage in a motorcycle accident in Macedonia some years earlier, and that as a result thereof he had some loss of memory (probably not great) before this accident. This finding is based on the histories recorded in the hospital notes, which could only have come from the plaintiff or his family and the fact that loss of consciousness (although not loss of memory) was admitted to Dr Milder at the special consultation arranged for this purpose and held on 24 September 2001 (see report of that date and see the last answer by plaintiff in cross-examination at T 422-7). 20 It is therefore necessary to consider the cause, extent and prognosis of these other symptoms referred to. This has not been made any easier by a number of inconsistencies in the evidence of the plaintiff and members of his immediate family and other unsatisfactory features, including what I consider is an inconsistency between the plaintiff's description of his physical capacity and that demonstrated in photographs of him taken on 9 September 2000 (Ex. Y4). There have also been a number of inconsistencies in the histories given by him to the various doctors which are summarised in Dr Roldan's report. 21 The plaintiff described himself as having constant pain of his lower back, which at times extends into his right leg and said that he has frontal headaches every day. He is depressed and claims a lack of concentration and memory, which matters were supported by his wife and a number of friends. However, from about 6 to 12 months after the accident until about a year ago he was taking an excessive number of prescription drugs prescribed by his general practitioner, Dr Oreb and by his psychiatrist, Dr Kecmanovic. In addition, he was also obtaining further prescriptions, particularly painkillers, from Dr Torodovic who was an acquaintance of his brother; and in that way he was taking drugs in excess of the safe or prescribed limit. 22 Apparently at times a heavy drinker prior to the accident, he was also for a time consuming large amounts of alcohol; and the excessive use of painkillers and sedatives together with the excessive use of alcohol, which I accept were caused by his pain and his depression, contributed to his loss of concentration, memory and such like. Indeed in 1999 he collapsed while waiting to see a doctor at Maroubra and was taken to Prince of Wales Hospital. He was seen both at Royal Prince Alfred Hospital Pain Management Clinic and at the Westmead Hospital Brain Injury Unit and both of these units advised him to undertake drug and alcohol counselling, and to cut down on the drugs he was taking. 23 Since then, that is about 3 years ago, he has stopped drinking alcohol and more recently Drs Oreb and Kecmanovic between them have reduced his drug intake so that he is now only taking Panadeine Forte, Voltaran and Stelazine. He claims that these drugs give him some pain relief, but it is only temporary. He said he spends most of his time either in bed or watching television. He does some walking, but it does not appear that he does the long walks which he has been advised to undertake as he claims that his back gets too sore. 24 The plaintiff said that before his accident he used to help with cleaning the house, shopping and painting at home whereas now he cannot do these things and at times he needs help from his wife to shower, dress, put on his shoes and socks and go to the toilet. She also massages his back although in view of his complaints of persistent severe pain, such massaging is of little benefit to him. 25 He agreed he can manage his money (T 316). He said that sometimes he is able to use public transport by himself, but not at other times and that he is able to bend over and squat provided he does it slowly as he could in September 2000 when he was photographed (Ex. Y4). He can stand up for an hour, sit for up to half an hour and can walk for up to 20 minutes. He denied that he is feeling better, more aware and awake since he stopped drinking alcohol and reduced his prescription drugs; in fact he claimed he is worse. 26 His wife said that she massages his back and legs, helps him with his bathing, toileting and dressing and gets his meals. After discharge from hospital he was bedridden for 3 months (T 366). She had always been a full time housewife in Australia. She denied her husband has become better or more alert since his drug intake was reduced. Ultimately she claimed that his mental condition had got worse than it was in November 1999, and that within 2 or 3 years they expect him to be in a wheelchair and that he expects a major operation (T 374-5), of which proposed operation there was no evidence. 27 His daughter, Dyana Arnesic, described the plaintiff's present condition as very weak, always unhappy, very scared, unable to sleep at night, unable to concentrate, unstable on his feet, uncontrollable and inappropriate behaviour which she described (T 431-2) although I note that the incidents of inappropriate behaviour were not referred to by any of the other witnesses including his wife, and were not apparently reported to any of the doctors or psychologists. She said he is not left alone, there is always someone with him, that he spends most of the time (i.e. 4 days a week) living at her place at Carlton except at weekends (T 433), a matter not referred to by his wife. 28 She said that when at her place he spends most of the time in bed although they take him on outings and to therapy, that his speech had been slurred and slow ever since the accident, he does not speak much nowadays and when he does it is quite often incomprehensible and they have to get him to repeat it. All his problems i.e. speech, concentration, forgetfulness have been present ever since the accident, but they are getting worse now. He is now spending longer and longer periods of time in bed and she is afraid that in the future he might become paralysed. 29 The plaintiff's other daughter, Vesna Trajkovska, also gave evidence of changes to her father's personality and physical movements since the accident. She said that every time she sees him he is very disorientated in time and place, and it is like he is losing his memory, he is physically weaker whenever she sees him and he seems drowsy. She said that he and her mother often come over to her sister's place and sometimes sleep overnight but usually go home. She also had noticed no improvement since he stopped drinking and reduced his drug intake. Neither physiotherapy nor hydrotherapy does him any good except provide temporary relief whilst actually undergoing the therapy. 30 I am satisfied that as a result of the accident the plaintiff suffered significant fractures to the lumbar spine which have permanently incapacitated him from working as a painter or in any other occupation involving bending, lifting or stretching. Moreover, because of his other problems which I shall refer to hereunder, his lack of clerical training and experience and his difficulties with English, he could not be trained for any form of lighter work and therefore must be regarded as permanently and totally incapacitated for employment. He is further disabled by the injury to his left foot, although compared with his back, this disability is not serious. 31 He claims he has continuing pain in his lumbar region and I accept that he does; although I am not satisfied that there is a physical basis for the degree of pain which he suffers, but it appears to be tied up with his psychological problems and drug addiction. Such pain is not effectively relieved, except on a temporary basis by the drugs (particularly Panadeine) which he continues to take or by the hydrotherapy. 32 I accept Dr Kecmanovic's opinion that he is suffering from a Mixed Anxiety and Depressive Syndrome, or as Dr Maguire describes it, an Adjustment Disorder with Depressed Mood (which I assume is very similar) and Dr Walker also considered there was significant depression and that the symptoms of depression, change of personality, loss of memory and cognition are due to this and to his drug addiction. Dr Hordern also diagnosed, as well as a brain injury, a Post-Traumatic Stress Disorder. 33 He is now taking less drugs and although his evidence was that he was no better, he told Dr Perl that since he reduced his drug intake he was feeling better; and I believe this is likely to be so. Dr Perl in her report of 24 July 2001 (p 3 para 4) noted an improvement in his intellectual functioning since his reduction in drug intake. However, I believe his anxiety and depression with the associated symptoms of change of personality, loss of memory and cognition will continue, although to a lesser degree than previously. I also accept Dr Walker's evidence that his "Parkinsonian symptoms" are a result of the drug addiction and he should recover from them in time provided he remains free of excessive drug use. 34 The loss of concentration and memory, loss of cognition, slurred speech, frontal headaches, depression, anxiety and Parkinsonian symptoms in his gait and manner result from a combination of a Post-Traumatic Stress Disorder and the consequences of his drug and alcohol addictions. I am satisfied he has not drunk alcohol for some 3 years and he has at least made an effort (in conjunction with his doctors) to reduce his intake of prescription drugs. 35 I am satisfied that although there was a period when he could not be left unsupervised and was unable to travel alone, those days are now past and that he can and does travel alone on public transport to attend hydrotherapy at Brighton-le-Sands and to visit his daughter (now at Rockdale) and does not need continual supervision provided his wife (or someone else) supervises his drug intake. He could if he wished, help with some of the household chores though not with the heavier tasks and, as he and his wife live in a unit, and did before the accident, no question of gardening arises. 36 Mr King SC (for the first defendant) has drawn my attention to State Rail Authority of NSW v Weigold (1991) 25 NSWLR 500 and submitted that as the drug and alcohol addiction was voluntary and self-induced, the defendants are not responsible for it or its consequences, but I consider that case distinguishable as it involved criminal behaviour which had resulted in conviction and imprisonment, and thus issues of public policy were involved, whereas here it was the pain which the plaintiff was suffering which caused him to take the drugs and they were prescribed by medical practitioners: cf Grey v Simpson (unreported – Court of Appeal – 3 April 1978). True it is, he then obtained additional supplies by visiting Dr Todorovic as well, but he believed at the time that he was relieving the pain, and that pain and the boredom were associated with his inability to work, which also caused him to increase his already not unsubstantial use of alcohol. In my view all these consequences are causally related to the defendant's negligence and reasonably foreseeable. 37 It was also submitted that he has failed to mitigate his loss by the continued use of the prescription drugs in excessive amounts and his failure to attend for further treatment and assessments, but there were undoubtedly language difficulties and the memorandum from Royal Prince Alfred Hospital Pain Management Clinic to Dr Oreb dated 15 November 1999 (see Ex. TF) suggests that the plaintiff was to wait until he heard from them. It is not clear if those further treatments and assessments would have made any significant difference, and he has in any event reduced his drug intake and ceased drinking alcohol. In these circumstances I am not satisfied he has failed to mitigate loss. ASSESSMENT 38 Having regard to the above matters, I assess the plaintiff's non-economic loss at 50% of a most extreme case. At the relevant date (6 December 1996) the maximum was fixed at $221,650 and so I allow $110,825 under this head against the first defendant. I assess the plaintiff's general damages at Common Law at $150,000 and allow this amount against the second and third defendants, of which I attribute one half ($75,000) to the past. 39 Out-of-pocket expenses, including chemist's expenses for the drugs taken by the plaintiff have all been paid by the first defendant's insurer, and up to 14 February 2002 amounted to $41,344.47. It has been agreed that this figure should be updated before judgment is entered. 40 As to future out-of-pocket expenses there is no agreement and very little evidence. The plaintiff claims $30 per week for chemist's expenses and $10 per week for travelling, both sums for his anticipated life expectancy (30 years). I reject the claim for travelling expenses, as I am not satisfied the plaintiff is incurring any additional travelling expenses as a result of the accident. I am satisfied he is able to travel alone on public transport to go to his hydrotherapy at Brighton-le-Sands and if he was not injured and working he would be incurring travelling expenses and/or petrol and car running costs in any event. 41 As to the chemist's expenses the plaintiff's wife gave evidence that she has been spending approximately $30 per week on the Panadeine Forte and prescription drugs, but the evidence is that he would be better off with less Panadeine which only gives temporary relief in any event (and Dr Walker referred to its effects) and I am also satisfied he would be better off with less Stelazine. He said the hydrotherapy once a week only gives him relief whilst he is in the pool itself, but it probably does have some therapeutic benefit, even if it only gets him out of the house and travelling (usually by himself) from Kingswood to Brighton. I therefore allow $30 per week for a combination of chemist and hydrotherapy, although it would probably be more beneficial for at least part of the money to be spent on detoxification and pain management programs. I consider that the plaintiff should (and probably will) gradually reduce his need for these drugs as a result of the accident, and so I only allow these expenses for a further 10 years. $30 per week for 10 years capitalised at 5% pa amounts to $12,387 and I allow this amount against the first defendant; whilst capitalised at 3% pa, it amounts to $13,551 and I allow this amount against the other defendants. 42 No claim has been formulated for future medical expenses but the plaintiff has been seeing Drs Oreb and Kecmanovic on a regular basis, and it would seem desirable that he continue to do so for some time at least. Mr Evatt said he expected to reach agreement with Mr King on this item, and I will allow time for such agreement. If no agreement is reached, I will make an assessment. 43 As previously noted, I am satisfied that the plaintiff is effectively totally and permanently incapacitated for paid employment, including light work. However, in assessing the plaintiff's loss of income and loss of future earning capacity, the evidence led on behalf of the plaintiff was of very little assistance and it is necessary to make an estimate based on very few and confusing materials. 44 The plaintiff said that he generally worked as an employee of the first defendant when that company had work available for him, and at other times he worked in partnership with his brothers under the name of 'Ideal Painting Services'. He said that when working for the first defendant he generally averaged $600 per week after tax, that is $150 gross or $120 net per day, but in cross-examination he said that, although some weeks he worked 5 or 6 days a week, at other times it was only 2 or 3. 45 These figures are not supported by his tax returns (Ex. TK) which show his gross and net earnings from the first defendant as follows: Gross Tax Net 1993-4 $18,433 $1,575 $16,858 or $324.19 pw 1994-5 $17,345 $3,469 $13,876 or $266.85 pw 1995-6 $16,457 $2,308 $14,149 or $272.10 pw and disclose no other income, except the 1995 return seems to disclose additional income making a total of $33,176, which would be the equivalent of about $638 gross or approximately $460 net per week. Unfortunately the copy taxation returns comprising Ex. TK are not only incomplete but are also largely illegible. 46 The Prescribed Payments return of the first defendant for the year ended 30 June 1993 show payments to the plaintiff for the months of September and November 1996 (before the accident) and these show net receipts of about $600-$690 per week – but they only cover 2 months out of 5, and there is no evidence whether the plaintiff had any income from that source in the other 3 months. 47 Mr Popovski's evidence is of little assistance because he works as a contractor employing other painters whom he has to pay, and he also has overheads including the costs of paint and equipment. It is one thing for him to say that he pays his men $800 per week gross or $600 net per week (without reference to how much he was paying them in 1996 when the plaintiff was injured) and if he is now paying his employees $800 per week as he claims while his own earnings as per his tax return are only $22,888 before tax or $440 per week, it means that his employees are earning more than he is, which is difficult to accept. 48 In all the circumstances I find it probable that when not working for the defendant the plaintiff was working elsewhere, either with his brothers in 'Ideal Painting Services' or independently and, except possibly in 1994/5, not making full disclosure to the taxation authorities, but there was no direct evidence to this effect. 49 In Giorginis v Kastrati (1988) 49 SASR 339, where the trial judge found that the plaintiff had earned moneys in excess of the amounts disclosed in his taxation returns, von Doussa J (with whom the other members of the Court agreed) said at 375-6: "Where the plaintiff gives evidence that his income tax returns do not disclose the full extent of his earnings, a court will scrutinise the plaintiff's evidence with special care. The want of honest compliance with the taxation laws is a matter that will reflect adversely on the plaintiff's credit and may lead to the rejection of his evidence as untrustworthy, at least about his earnings. In such a case the plaintiff has only himself to blame if damages are assessed in line with the pre-accident income actually disclosed to the revenue authority. However, where the fact of the receipt of other income is proved, then, in my view, the plaintiff is entitled to have that exercise of his earning capacity brought to account, although subject to reduction for the income tax which should have been paid, and subject to the question whether the plaintiff would have continued to exercise that capacity had he been required to pay tax on the additional income: see McIntosh v Williams [1976] 2 NSWLR 237 at 244, 252. … Where a tax fraud or evasion of this kind is disclosed in evidence, it is the court's duty to draw the evidence to the attention of the executive branch of government for such action as may be appropriate: Petera Pty Ltd v EAJ Pty Ltd (1984) 7 FCR 375. A court should not, generally speaking, make a finding favourable to the plaintiff in a personal injury case that his income is otherwise than he has disclosed to the revenue authority unless the plaintiff admits the non-disclosure. A fortiori, such a finding should not be made where the plaintiff denies that he has failed to properly disclose his income. Unless the plaintiff admits the falsity of his income tax returns the court should not speculate in his favour, for example that his pre-accident earnings were probably higher than he has disclosed. Rather, the court should adopt the income figures actually disclosed and base the assessment of damages on them, Again, if this results in a low assessment, that is the consequence of the plaintiff adhering to the accuracy of his income tax returns." 50 In McIntosh v Williams [1976] 2 NSWLR 237, the case referred to by von Doussa J, which was a case under the Compensation to Relatives Act 1897, where the deceased who had been a policeman had been earning additional undisclosed income, Hutley JA said at 252: "His Honour appears to have assessed the loss to the family by reason of his death by aggregating his net earnings as a policeman, after tax, with his assessment, on very meagre evidence, of his gross remuneration from outside sources. He further appears to have held that his outside earnings would have continued during his career as a policeman. In my opinion this approach is erroneous. In order to work out the income available to the family, the income remaining after deduction of the taxation which would have been payable on the gross income, not the income remaining after the deduction of tax on his disclosed income, should be the basis of any assessment of loss." 51 He made no reference to referring the matter to the taxation authorities. Giorginis v Kastrati was referred to with approval by the Court of Appeal in Brear v James Hardie & Coy Pty Ltd [2000] NSWCA 352, 50 NSWLR 388 at [52] but only to the extent that the trial judge was entitled to take into account the fact that the appellant had called no evidence about matters (relating to past income) upon which it might have been expected that he or witnesses called by him might cast light. 52 In these circumstances, where I consider it likely that the plaintiff had some income beyond that disclosed in his taxation returns, although he has not directly admitted submitting false returns, I assess the plaintiff's loss of income by reference to what has been disclosed together with something for the additional income discounted for the tax that should have been paid on it; but because of the paucity of the evidence, the assessment must be conservative and not over generous. As there has been no direct admission of the lodging of the false taxation returns no question arises about referring the matter to the relevant authorities. I reject the submission that in a case such as this it is appropriate to take Average Weekly Earnings or any similar table as a guide. 53 On this basis, I allow an average of $350.00 per week net from the date of the accident until the present, a period of 289 weeks, namely $101,150. 54 As to loss of future earning capacity, for similar reasons I consider an appropriate figure to allow is $400 per week net from the present until the plaintiff reaches age 65 years, a period of 16 years. Applying the 5% tables and allowing 15% for vicissitudes I allow $197,030 against the first defendant, and applying the 3% tables with the same allowance for vicissitudes, I allow $226,168 against the other defendants. 55 There is a claim for domestic and similar assistance both past and present. Mr Evatt in his 'Damages Schedule' only claimed from about a year after the accident when the plaintiff first because addicted to prescription drugs, but I would have thought he had a demonstrable need for domestic and semi nursing assistance because of his lumbar injuries particularly when he was first discharged from hospital wearing the Boston Brace. Dr Mahony in his report of August 1999, having last seen the plaintiff on 29 December 1997 (about one year after the accident) and being under the belief that he had suffered a brain injury, expressed the view that the plaintiff required 12 hours a week for cooking, general household chores, washing, cleaning and gardening. In his report of March 2001 he suggested 14 hours a week and in that of 28 September 2001, 10 hours a week, in neither case giving any explanation for the variation. 56 Dr Milder, who diagnosed traumatic brain injury which I have rejected, suggested 20 hours a week and Dr Hordern who saw the plaintiff in February 2001 said in September 2001 that because of the plaintiff's then condition (forgetfulness, unable to travel alone, leaving lighted cigarette butts around) his wife was required to also act as a nurse/companion and if that was still the case he needed 4-6 hours of assistance on 5 days of the week, which would amount to 20 to 30 hours a week. 57 Of the defendant's doctors, Professor Mitchell said (26 June 2000) that the plaintiff was completely incapable of looking after himself, mainly because of his mental deterioration which he did not consider to be part of the plaintiff's injury. Dr Terenty (25 August 1999) suggested 5 hours a week whilst Dr Walker considered his need for assistance to be drug related and therefore expressed the view that it was inappropriate to discuss the matter, and Professor Jones regarded the plaintiff as independent in personal care and daily living and would not concede the need for any care. 58 I am not satisfied that the plaintiff's need for domestic assistance is as great as he claims. Both before and after the accident he and his wife have lived in units or apartments, and so I regard it as inappropriate to allow anything for gardening. There would have been a time in the early period when I accept that he would have needed assistance in his personal care, showering, toileting etc, and I accept that whilst consuming excessive amounts of alcohol and addicted to prescription drugs he needed a lot of personal supervision for his own safety and to prevent damage to property e.g. by fire. I also accept that for a time he could not travel alone, but he has now ceased drinking alcohol and his drug intake is limited to the stage where Dr Perl regards it as not harmful. I am also satisfied that he is capable of assisting with the housework e.g. washing up, dusting, cooking, light sweeping, although I am not satisfied he ever did these things before the accident, and he would still be incapable of carrying heavy shopping loads, vacuuming or changing the proverbial light bulb. More importantly I would regard it as essential that his wife continue to supervise his drug intake. 59 It is also necessary to draw a distinction between the position under the WC Act where the provision of services is only allowed for those services which would not otherwise have been provided (s 151K(3)) and the position at Common Law where the plaintiff is entitled to be compensated for the need because of his inability, notwithstanding that before the accident the particular services were performed by his wife as part of their ordinary domestic arrangement: Van Gervan v Fenton (1992) 175 CLR 327. 60 This distinction is relevant in this case because of the plaintiff's incapacity for activities such as cooking, ironing, sweeping, light shopping and such like, which I am satisfied would have been done by his wife in any event. 61 Bearing these factors in mind I consider it appropriate to allow 10 hours per week under the Act and 15 hours a week at common law from the plaintiff's discharge from hospital (19 December 1996) until he became dependent on others due to the addictions (say December 1998), 20 and 25 hours a week respectively from then until he ceased his excessive use of alcohol and prescription drugs and became less zombie like (say December 2000), 10 and 15 hours a week from then until the present and, with anticipated further improvement in the future, as he becomes more alert with less drug use, 7 and 10 hours respectively for his remaining life expectancy (30 years). 62 These figures are calculated as follows:- Under the Workers Compensation Act : Dec 1996 to Dec 1998: 10 hours per week for 104 weeks at $16.25 per hour (average rate) $16,900 Dec 1998 to Dec 2000: 20 hours per week for 104 weeks at $16.25 per hour $33,800 Dec 2000 to June 2002: 10 hours per week for 78 weeks at $16.25 per hour $12,675 Future: 7 hours per week at $16.25 per hour for 30 years capitalized at 5% $93,502 Total $156,877 At Common Law: Dec 1996 to Dec 1998: 15 hours per week for 104 weeks at $22.50 per hour $35,100 Dec 1998 to Dec 2000: 25 hours per week for 104 weeks at $22.50 per hour $58,500 Dec 2000 to June 2002: 15 hours per week for 78 weeks at $22.50 per hour $26,325 Future: 10 hours per week at $22.50 per hour for 30 years capitalized at 3% $233,550 Total $353,475 63 The various heads of damages so far may be tabulated as follows: Head WC Act Common Law $ $ Non-economic loss/general damages 110,825 150,000 Out-of-pocket expenses to date 41,344 41,344 Future out-of-pocket expenses 12,387 13,551 Loss of earnings to date 101,150 101,150 Future loss of earning capacity 197,030 226,168 Domestic assistance (past and future) 156,877 353,475 64 There is also a claim for funds management supported only by a very sparse piece of evidence in the form of Ex. TN (the letter from AXA Financial Planning to Carters Law Firm dated 14 February 2002). The defendants deny that the plaintiff is entitled to any amount under this head on the ground that although he has had no experience in managing large amounts of money, his capacity to do so had not been reduced by the accident and its consequences. This may require further consideration of his mental and cognitive condition in the light of the drugs he has taken or is taking. The parties may be able to agree on this issue, but if they are not able to agree I will receive further submissions. 65 The amount payable for out of pocket expenses needs to be updated and this leaves outstanding future medical expenses, tax paid on Workers Compensation (Fox v Wood), loss of superannuation benefits, interest, costs, and apportionment under s 151Z of the WC Act, which the parties agreed were matters best left until the substance of my judgment was known. I shall therefore stand the proceedings over to another date so that my calculations can be checked and these issues agreed, or if not agreed I can hear submissions thereon. Wednesday, 11 SEPTEMBER 2002 66 Preliminary judgment in this matter was delivered on 27 June 2002, but as noted in paras [64] and [65] a number of heads of damages were left outstanding. The parties have now reached agreement on those outstanding heads, but reserve their rights in respect of the heads assessed by me. 67 In relation to the plaintiff's claim against the first defendant pursuant to the WC Act, the following items have been agreed: Interest on non-economic loss nil Future treatment expenses other than chemist $8,000 Tax paid on worker's compensation $5,746.10 Loss of superannuation benefits, past and future $10,000 Interest on domestic assistance nil 68 These amounts, when added to the amounts assessed by me in my earlier judgment total $643,359.10, which will be the amount of the judgment to be entered against the first defendant. I refer to the agreement for apportionment noted in para [4], and note that 40 percent of $643,359.10 is $257,343.64. 69 In relation to the plaintiff's claim against the second defendant assessed on a common law basis, the following items have been agreed: Interest on non-economic loss $8,250 Future treatment expenses other than chemist $10,000 Tax paid on worker's compensation $5,746.10 Loss of superannuation benefits, past and future $12,000 Interest on past economic loss nil Interest on domestic assistance nil 70 These amounts, when added to the amounts assessed by me total $921,684.10. In regard to the agreed apportionment I note that 60 percent of that amount is $553,010.46. 71 Having regard to the total damages assessed in each case, and the provisions of s 151Z of the WC Act, the parties agree that on a calculation basis only, the appropriate judgments to be entered are, against the first defendant in the sum of $643,359.10, and against the second defendant in the sum of $810,354.10. 72 The parties have also reached agreement as to costs and have agreed that on the basis of judgment being entered as indicated above, all remaining cross-claims should be dismissed. 73 I therefore make the following orders: 1. I direct the entry of judgment for the plaintiff against the first defendant in the sum of $643,359.10. 2. I direct the entry of judgment for the plaintiff against the second defendant in the sum of $810,354.10. 3. By consent, I order that the first defendant pay 40 percent of the plaintiff's costs of the proceedings. 4. By consent, I order that the second defendant pay 60 percent of the plaintiff's costs of the proceedings. 5. I note that the amount of payments under the WC Act to be deducted, pursuant to s 151B of that Act, is agreed at $164,357.81. 6. I note that the plaintiff has received $200,000 by way of interim damages from the first defendant on behalf of both defendants. ********** Last Modified: 03/13/2003 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.