Pryor v Vibro [2002] NSWSC 136

New South Wales Supreme Court

CITATION : Pryor v Vibro [2002] NSWSC 136 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20037/01 HEARING DATE(S) : 27/2/02 JUDGMENT DATE : 8 March 2002

PARTIES : Harold Keith Pryor Vibro Products Pty Limited JUDGMENT OF : Wood CJatCL at 1

COUNSEL : H Letherbarrow SC with Ms Fitzsimons (P) Mr J Stewart (D) SOLICITORS : Robert Johns (P) McCulloch and Buggy (D) CATCHWORDS : Personal Injury - plaintiff injured whilst at work - fall from beam - assessment of damages - non-economic loss - future economic loss - future superannuation loss - future out of pocket expenses - recoverable losses and expenses - past and future damages - Griffiths and Kerkemeyer. LEGISLATION CITED : Workers Compensation Act 1987 CASES CITED : Fox v Wood (1981) 148 CLR 438 Griffiths v Kerkemeyer (1977) 139 CLR 161 DECISION : See paragraph 71.

- 23 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WOOD CJ at CL

Friday 8 March 2002

20037/01

HAROLD KEITH PRYOR v VIBRO PRODUCTS PTY LIMITED

JUDGMENT 1 HIS HONOUR: The plaintiff brings these proceedings for damages arising out of the injuries which he suffered, on 22 May 1999, in the course of his employment with the defendant. On that occasion he fell some 2.5 metres onto a concrete floor when a beam, on which he was standing, gave way. Liability has been admitted, and the matter proceeded as an assessment only.

1. PLAINTIFF'S BACKGROUND 2 The plaintiff was born on 16 August 1955 and is now aged 46 years. He left school at the age of 15 years, without the School Certificate. He had been in almost continuous employment in activities involving manual labour, mostly heavy labour, until his fall. He had however, attained a trade qualification in metal spinning, and also had certificates as a forklift driver and as an operator of certain cranes. 3 While working with Comeng at Braemar, in about 1976, he sustained a knee injury which later led to him undergoing a patellectomy; that did not however prevent him working. 4 After leaving Comeng he worked, for some 8 years or so, as a self-employed handyman. Otherwise he has worked, on a full time basis, apart from a few months selling computers, for various employers including Dux Heaters, the defendant, and a company Adjuvate, which manufactured cement products. At the time of the accident, and for some years previously, he had held part time weekend employment with a hardware business, Magnet Mart, at Bowral, working mainly in the wood yard, where his duties involved lifting and carrying heavy materials, and assisting customers with the loading of their purchases. 5 Following the accident, he returned to work with the defendant for one week but was unable, due to pain and restrictions, to continue in that employment. He was then offered, and took on, full time employment with Magnet Mart, although now working inside the store. He was not able, by reason of his full time employment, to continue with the part time weekend work. 6 He had a sympathetic employer at Magnet Mart, and was able to continue, although with difficulty, and with support from fellow workers and customers, until January 2000 when he found it necessary to reduce his work to 25 hours per week. However, from 7 August 2001, he found that his disabilities were such that he had to cease even that limited employment. 7 It is not suggested by the defendant that his physical disabilities are other than genuine; nor is it suggested that he could undertake any form of work which involved any degree of manual labour. Issues do arise in relation to certain aspects of his claim for damages, although they concentrate principally upon the extent to which he has a residual capacity for employment. Necessarily that issue, and the surrounding issues, turn upon the medical evidence in the case. It is necessary to consider that aspect in the light of the plaintiff's physical condition preceding the accident, as well as subsequently.