Attard v Aberwood P/L & Anor [2003] NSWSC 984

New South Wales Supreme Court

CITATION : Attard v Aberwood P/L & Anor [2003] NSWSC 984 HEARING DATE(S) : 14 & 15 October 2003 JUDGMENT DATE : 3 November 2003 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The defendants are to pay the plaintiff the sum of $151,776.00 for damages; (2) Costs are reserved.

CATCHWORDS : Rehearing - Arbitrator's sward - Assessment - motor vehicle account LEGISLATION CITED : Motor Accident Act 1988 Bridge Printery Pty Ltd v Jose Mestre [1999] NSWCA 342 CASES CITED : Dykstra v Head (1989) Aust Torts Rep 80-280 Malec v Hutton (1990) 169 CLR 638 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Anthony Attard (Plaintiff)

PARTIES : Aberwood Pty Ltd (First Defendant)

Michael John Cassells (Second Defendant) FILE NUMBER(S) : SC 20598/2001 Mr TDF Hughes (Plaintiff) COUNSEL : Mr GJ Bellew with Mr LK Crowley (Defendants) Ms Caroline Clarke GH Healey & Co (Plaintiff) SOLICITORS : Ms A Mahoney Sparke Helmore (Defendants)

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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 3 NOVEMBER 2003

20598/2001 - ANTHONY ATTARD v ABERWOOD PTY LTD & ANOR

JUDGMENT (Rehearing - Arbitrator's award - Assessment; motor vehicle accident) 1 MASTER: This matter comes before me by way of a rehearing of an award of an Arbitrator. The plaintiff seeks damages for personal injuries sustained in a motor vehicle accident which occurred on 30 June 1998. The plaintiff was born on 3 September 1952 and was 45 years of age at the time of the accident. He is now 51 years of age. 2 On 30 June 1998, at approximately 5.40pm, the plaintiff was travelling in a southerly direction along Regent Street, Riverstone. The second defendant Michael Cassels was driving a truck. He proceeded through the intersection of Regent and Oxford Streets, travelling along Oxford Street in an easterly direction. The second defendant failed to obey giveway signs on Oxford Street and collided with the plaintiff's red four-wheel drive after the accident occurred. The plaintiff's car veered onto the left hand side of the road and came to rest on the footpath next to a fence. His vehicle was damaged on the driver's side from the door along the bonnet. The photograph in Ex A depicts the plaintiff's damaged four-wheel drive. The accident caused the bull bar on the plaintiff's vehicle to become partially dislodged. The plaintiff's car travelled about 60' after the impact. The plaintiff estimates that he was travelling at about 55 mph when the collision occurred. As a result of the defendants' negligence, the plaintiff sustained injuries to his neck, shoulders left arm, back and left leg. Breach of duty of care is admitted. Contributory negligence is not in issue. 3 The plaintiff and his wife gave evidence and were cross examined. By way of background, the plaintiff was born on 3 September 1952 in Gozo, Malta. He is married to his wife Rita. They have four children who are now adults. Between 1965 an 1967 the plaintiff attended high school for three years. He is right hand dominant. The plaintiff left school in 1967 and went to work for his father who was a builder and truck driver. He did not obtain formal trade qualifications. In March 1971 the plaintiff migrated to Australia. The plaintiff's working life has centred on carpentry and labouring type work. Within two weeks of arriving, the plaintiff obtained a job working for Metal Protectives in Granville and has been in full-time employment ever since. At Metal Protectives he was carrying out physical work doing sandblasting. In 1973 the plaintiff worked with a company in the city involved in putting epoxy resin on floors. 4 From the end of 1973 until February 1975, the plaintiff was employed at Shore Time Industries. Again he was performing physical work making chicken feeders. On 8 February 1975 the plaintiff married his wife Rita. Between 1975 and 1979 the plaintiff went back to work for Metal Protectives where he carried out painting and crane driving. Between 1975 and 1981 the plaintiff worked for a company called Perlow at Smithfield. He was involved in physical work, such as the painting and driving of cranes. 5 In 1981 the plaintiff and his wife purchased a bread run business which operated between Wentworthville and Schofields. They conducted this bread run for two years. In 1983 the plaintiff returned, for the third time, to Metal Protectives where he carried out maintenance work. Between 1985 and 1989 the plaintiff was self-employed carrying out fire proofing work. 6 In 1989 the plaintiff injured his right shoulder as he was using a heavy hose to spray ceilings. He took two to three months off work and then he and his wife purchased a delicatessen business in Wentworthville. The pain in his right shoulder eased off after about six to eight months. With the change in work the plaintiff and his wife ran the delicatessen business, seven days per week from 7.00am until 700pm. The delicatessen business was closed down in 1994. 7 In 1994 the plaintiff commenced working with Fleetwood Engineering Pty Ltd (Fleetwood) at Riverstone where he remained until 2001. The plaintiff was employed on a sub-contracting basis through his company Attard Nominees. Fleetwood was and is involved in the business of constructing and maintaining wooden footbridges and walking platforms. Usually the constructions are made from mixed hardwoods, but they also constructed some metal footbridges. The plaintiff performed heaving labouring work on a full-time basis of five days per week. He would leave for work at about 7.00am, and attend the site where the bridge was to be built. 8 The logs would have been already craned in to the site. If the footbridge was located across a creek, logs would already have been placed across the creek. The Fleetwood employees would cut the timber sleepers to the prerequisite size on site. He, together with other employees, would be responsible for erecting the joists and assembling the timber deck. The timber had to be cut to the required lengths on site. The assembling of the bridge or platform was secured by bolts, which would be drilled into the construction. In order to do this the plaintiff was obliged to place his body in awkward positions, such as crouching underneath the bridge. I accept that prior to the accident the previous symptoms experienced in the plaintiff's right shoulder had fully resolved and that he was fit and in good health. He was capable of performing a very physically demanding full-time job in addition to the work he performed outside those work hours. 9 At the time of the accident, the plaintiff was a company director for Attard Nominees Pty Limited, and worked as a cabinetmaker and carpenter. As noted above, the company was sub-contracting the plaintiff's services to Fleetwood Engineering Pty Limited. Apart from sub-contracting to Fleetwood, the company also undertook two types of work namely, firstly, the reconditioning of tanks for Castrol, and secondly, the kitchen cabinet making business on a hobby basis. 10 Meanwhile in 1994, the plaintiff undertook additional work on a sub-contract business with Castrol. He carried out the reconditioning and renovation of metal tanks. These tanks were about 200mm x 1200mm x 600mm in depth and stood on legs. When he had tanks that required reconditioning he would spend three to four hours per day carrying it out. He would leave the business at about 4.00pm and work on the tanks until about 7.00pm and then return to pick up his wife from the delicatessen when it closed. Later that evening the plaintiff would do some more work on the tanks at home. That tank work involved collecting the tanks from the site and transporting them home. He then would unload the tanks and cut a big hole in the tank with a jigsaw. He would empty the oil out of the bottom of the tank and then clean the inside of the tank with degreaser, dry the tank out, put the lid back on and weld it. He would make sure that all the repairs to the tank were carried out. If necessary he would repaint the tank. The rejuvenated tanks were then transported back to Castrol. His wife would come outside to assist when he requested her to do so and watch him when he climbed inside the tank to degrease it. She would hand him tools, but otherwise he would do all the physical work involved in restoring the tanks (t 6.20-32). 11 Both the kitchen work and Castrol tank reconditioning work were carried out at the plaintiff's residential premises at Toongabbie after work. He would come home from work at about 5.00pm, have a cup of tea, (presumably eat dinner) and then return to his backyard shed to work until about 7.30pm or 8.00pm each night. The amount of time he spent working from home depended on how many, if any, tanks he had to recondition. If he did not have to carry out work on the tanks he would focus his efforts on his kitchen cabinet making activities. The plaintiff estimated that aside from the time he spent with Fleetwood, he was spending three to four hours per night working when the tanks were there (t 7.42). As an average, the plaintiff estimated that he would spend between 20 to 25 hours per week working on the tanks and cabinet making (t 10.15). 12 Prior to the accident, the company's income was almost entirely derived from the plaintiff's carrying out the physical activities in the three types of jobs described above. Before and after the accident Attard earned income from the rental of a Central Coast property. This income plays no part in this assessment of damages. 13 In about 1994 the plaintiff built his own house on his property at Toongabbie. He carried out most of the labour with the exception of tradework involving plumbing and electrics. Prior to the accident the plaintiff had purchased a property on the Central Coast. He and his wife have plans to redevelop the site by building three townhouses on the site. He does not intend to perform any of the labour. There is no claim for the costs of this townhouse redevelopment. 14 I now return to consider the accident and the plaintiff's subsequent injuries. The plaintiff waited 1 to 1½ hours for an ambulance to transfer him to Westmead hospital, as the passenger in the other vehicle was trapped. The plaintiff was placed on a bed and placed in a brace in the casualty department of Westmead hospital. After waiting a number of hours and not having been examined by a doctor, he discharged himself. His son drove him home. The plaintiff was in pain throughout the night and could not sleep (t 12. 43 - 13.13). The next day he consulted his general practitioner, Dr Becker. On 2 July 1998, Dr Becker provided a medical certificate which recorded that from examination the plaintiff was suffering from neck strain and stated that the plaintiff was involved in a motor vehicle accident on the way home from work. Dr Becker recommended physiotherapy. The plaintiff attended physiotherapy at premises next door to Dr Becker each day for about four weeks. At the time he found physiotherapy of assistance. Dr Becker provided further medical certificates (Ex G). 15 Dr Becker's clinical notes also of 2 July 1998 reveal that upon examination the plaintiff experienced pain in both shoulders, tenderness on left side of neck and both trapezia muscles. On 6 July 1998, the doctor's records noted that the plaintiff was improving. On 28 July 1998, a record was made that the plaintiff had pain in the left shoulder and trapezius. The next entry, namely on 28 January 1999, records the plaintiff's complaint of pain in the neck and left shoulder (Ex 4). 16 Dr Phillips reported on the ultrasound of the cervical spine and left shoulder taken on 29 January 1999. The ultrasound of the cervical spine showed that there was loss of normal lordosis, and that degenerative change was developing at the C4/5 and C5/6 disc levels. The ultrasound of the left shoulder showed the biceps and rotator cuff tendons outlined normally. There was no evidence of tendonitis, tear or degeneration, and no calcification or fluid collection and normal movement was seen without impingement. 17 Dr Yuen, the plaintiff treating general practitioner in 1999, recorded a number of consultations for various complaints. From time to time in 1999, the plaintiff sought medical assistance for the pain in his left shoulder. On 11 March 1999 there is a record of the plaintiff's consultation concerning his left shoulder pain. He was prescribed Voltaren. Likewise, on 8 April 1999 Dr Yuen recorded that the plaintiff experienced pain in both shoulders after heavy lifting two days previously. On 18 August 1999, the doctor's notes record that the shoulder pain was much better. The left shoulder pain had flared up again on 21 December 1999 (at this time, some 18 months had elapsed since the accident), because Dr Yuen recorded "left trapezius pain after heavy lifting four days ago" and there was restricted left movement and mild muscle spasm. From January 2002 to date, the plaintiff has sought medical treatment from his current general practitioner Dr Alam. Dr Alam gave brief evidence to the Court. Since January 2002, the plaintiff has attended Dr Alam once per month for his neck and shoulder pain. Dr Alam provides treatment including a neck manipulation, which the plaintiff finds relieves his neck pain. However, the plaintiff's neck pain returns about one week after the treatment. 18 Overall, from the plaintiff's evidence and the treating general practitioners' notes, the plaintiff after a few weeks off work has been able to carry out physical work on a full time basis, but from time to time if he carries out heavy lifting he experiences pain in his left shoulder and at the base of the left side of his neck. Sometimes this pain is severe enough to cause him to resort to taking painkillers. The pain he experiences in his neck and left shoulder radiates down into his low back, extends down his left leg to his two biggest toes on his left foot. Those toes sometimes go numb. This pain also radiates down his left forearm to his elbow and across to the right shoulder from time to time. He said that the neck pain is always there. 19 As previously stated, the plaintiff had two weeks off work due to the injuries suffered in the accident. After that period, the plaintiff returned to work for Attard Nominees and Fleetwood Engineering on the same sub-contracting basis. At first he attempted to perform light duties but that became impossible because there were only three to four other employees, so he was obliged to return to his normal duties. Occasionally he had to take days off work due to his neck and shoulder pain. He found it difficult to drive the forklift. He also became reluctant to look over his shoulder when reversing a vehicle due to neck pain. Nevertheless, the plaintiff continued to work with Fleetwood until April 2001. His wife gave evidence that he kept the same hours at Fleetwood after the accident (t 22.35-45). Between December 2000 and March 2001, Fleetwood weekly work sheets (Ex 2) show that over this period the plaintiff was working, on average, about 33 hours per week. 20 As previously stated by 1998, the plaintiff was constructing kitchens after work in his backyard shed as a hobby. Prior to the accident, the plaintiff's wife Rita rendered some little assistance with his cabinet making and tank renovation activities. She did not ever play a role in his employment activities with Fleetwood. I shall refer to these activities in more detail later in the judgment under the heading of past economic loss.